Health and Social Care (Community Health and Standards) Bill

HL Deb 23 October 2003 vol 653 cc1726-60

11.8 a.m.

The Parliamentary Under-Secretarty of State, Department of Health (Lord Warner)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Warner.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 171 [General medical services contracts]:

Earl Howe moved Amendment No. 456:

Page 90. line 13, leave out "suspending or terminating" and insert "as to the circumstances in which a Primary Care Trust or Local Health Board may agree with a contractor that"

The noble Lord said: In moving Amendment No. 456, I shall also speak to Amendment No. 457. Subsection (4)(b) of proposed new Section 28U provides for regulations to be made that would suspend or terminate a requirement in the GMS contract to provide services of a specified type. I have no difficulty with what I interpret to be the purpose of this provision; my only difficulty is with the drafting. It will surely not be possible for regulations on their own to achieve the intended purpose because, in reality, if a PCT or LHB wished to suspend or terminate an additional service, I should have thought that it would almost always be practice-specific. Surely, regulations would not want to provide for a blanket suspension or termination of a service, nor legally could they provide for a suspension or termination of that service by particular doctors. Will the Minister shed some light on that matter and reassure the Committee that the drafting is robust? I beg to move.

Lord Warner

I will try to explain the purpose behind the provision, and in the course of that explanation I hope to satisfy the noble Earl.

Proposed new Section 28U(4)(b) allows for regulations to make provision about the suspension or termination of a duty under the new GMS contract to provide services of the prescribed nature. It allows for GMS practices to be able to opt out of providing out-of-hours services and those services designated as additional services in the agreement between the BMA and NHS Confederation. The regulations will define those particular services and detail the procedures through which the option to opt out can be affected.

We believe that the wording does deal with the practice issue. Certainly, the agreement on the new GMS contract allows practices to be able to opt out of providing out-of-hours and additional services with or without the agreement of the PCT, provided that they follow the procedures that will be set out in the regulations. Only in exceptional circumstances—and provided that the PCC has been able to demonstrate to an appeal body that it is essential for the practice to continue to provide a particular service in order to guarantee patients' rights—will the PCT be able to prevent such opt-outs.

The effect of this amendment would be to undermine the opt-out process because it would give the PCT an absolute veto over a practice's right to opt out of a service. It cuts across one of the most important parts of the agreement with the profession. Being able to opt out of providing services is a fundamental plank of that agreement that builds on the existing flexibility. There is not a dramatic change here in terms of the areas of services covered, but they are expressed in terms of practices rather than individual doctors. Under the agreement, the practices need to be able to vary their workload according to their capacity to provide those services and, of course, to the income to which they aspire.

Maternity, family planning, child health surveillance and minor surgery have always been optional services for practices. Under the current arrangements, individual GPs can opt out in full or part when they do not have the necessary professional expertise or facilities, or, in the case of family planning, they cannot provide the services for reasons of conscience. Not all individual GPs currently provide those services. The new agreement provides for vaccinations, immunisations and cervical screening to be added to the list. However, those services are also voluntary because practices and GPs could currently opt out of providing them. Again, it is up to the practices. If they opt out of providing services, their income will be reduced.

I could develop those arguments further but I have sought to explain the purpose behind the clause and the effect that the amendment would have on it. We do not think that the drafting is deficient, but I am happy to arrange for the noble Earl, if he wishes, to talk to the lawyers about that outside the Committee.

Earl Howe

I am grateful to the Minister. He will realise that I was, essentially, asking a simple question through a probing amendment: how can regulations operate at the level of individual practices? I think that I understand what the Minister told me about opt-outs. I will read carefully what he said. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 457 and 457A not moved.]

The Chairman of Committees

If Amendment No. 457B is agreed to, I cannot then call Amendments Nos. 458 and 459.

Lord Warner moved Amendment No. 457B:

Page 90, leave out lines 18 to 26.

On Question, amendment agreed to.

[Amendments Nos. 458 and 459 not moved.]

Clause 171, as amended, agreed to.

Clause 172 agreed to.

Clause 173 [Arrangements under section 28C of the 1977 Act]:

Lord Warner moved Amendments Nos. 459A to 459E:

Page 92, line 4, leave out "or section 17C arrangements" and insert ", section 17C arrangements or Article 15B arrangements; or (iii) under section 19 or 25 of the 1978 Act or Article 56 or 61 of the Health and Personal Social Services (Northern Ireland) Order 1972 (1972 No. 1256 (N.I.14)); Page 92, line 24, leave out "an individual" and insert "a person Page 92, leave out lines 27 to 37 and insert— () an individual who is providing services as specified in subsection (l)(bc)(iii) above". Page 92, line 38, leave out from ""section 28C employee"" to end of line 39 and insert "for "an individual providing" substitute "a person providing or performing" Page 93, line 20, at end insert— () In that section, after subsection (3C) (as inserted by subsection (9) above) insert— (3D) The regulations may also include provision for the resolution of disputes as to the terms of any proposed section 28C arrangements, and in particular may make provision—

1. (a) for the referral of the terms of the proposed arrangements to the Secretary of State or National Assembly for Wales; and
2. (b) for the Secretary of State, or Assembly, or a person appointed by him or it, to determine the terms on which the arrangements may be entered into.""

On Question, amendments agreed to.

Clause 173, as amended, agreed to.

Clause 174 agreed to.

11.15a.m.

Clause 175 [Persons performing primary medical and dental services]:

Earl Howe moved Amendment No. 460:

Page 94, leave out lines 16 to 18.

The noble Earl said: In moving Amendment No. 460, I shall speak also to Amendments Nos. 461 and 462. New Section 28W relates to primary medical and dental services and the lists that restrict and define the practitioners eligible to provide those services. The amendments are probing amendments, and I should be glad if the Minister could comment on them.

Subsection (4)(e) of the new section refers to the declaration of interests, specifically financial interests. It would be helpful to know what interests other than financial a person will have to declare, to whom he will have to declare them and whether such declarations will be published. Will a de minimis provision apply? My fear is that we will go overboard in asking professional people to declare every conceivable interest, however insignificant, and that the process will not only become cumbersome but will cause real discontent among doctors and dentists. We do not need that.

I should be grateful for the Minister's confirmation that subsection (4)(g) is intended to cover the possibility of, for example, fraud or gross malpractice by a practitioner, in a case in which it might be considered inappropriate for that person to remove himself or be removed from the list until such concerns had been resolved one way or the other. I cannot see any justification in other circumstances for keeping someone on a list against his will, but, perhaps, the Minister can clarify that.

Finally, the purpose of subsections (5) and (6) is not clear to me. Subsection (6)(a), in particular, is a complete mystery. What sort of conditions might be imposed to meet the requirements of subsection (6)? Should not those requirements be in the contract, rather than the list of practitioners? I beg to move.

Lord Warner

Many of the provisions continue existing practices. I turn first to Amendment No. 460. It is crucial that, once a practitioner has been admitted to a PCTs list, that practitioner complies with certain requirements. The requirements include notifying the PCT about criminal investigations and charges or other investigations. That continues existing practice.

With regard to the declaration of gifts and financial interests, there must be consistent rules throughout primary care. The provisions simply place in their proper context the existing regulation-making powers. There is nothing new about that. The powers were previously inserted into Sections 29 and 36 of the National Health Service Act 1977 by Section 23 of the Health and Social Care Act 2001. The provisions will ensure that gifts and financial interests are dealt with openly and honestly.

We recognise the special relationship that exists between practitioners and their patients and realise that patients will occasionally want to provide tokens of gratitude. We do not want to make practitioners refuse gifts, but we need transparent procedures to prevent abuse. If we did not have that provision, we would have inconsistency between some primary care practitioners, on the one hand, and other NHS employees, such as hospital clinicians, on the other. For example, hospital clinicians are required to declare gifts.

Common sense about the scale of the gifts must prevail. There is a world of difference between a box of chocolates and a foreign holiday. The onus is on the practitioner to recognise sensibly which gifts should be declared. I hope that that clarifies matters for the noble Earl.

I turn to Amendment No. 461. Doctors and dentists whose conduct or performance are under investigation by PCTs are prevented withdrawing from the list until the PCT has decided the matter. That continues the present arrangements.

Amendment No. 462 would have the effect that a doctor or dentist who was under investigation by the PCT or had been suspended or given a notice of intention to remove him would be able to avoid removal from a list simply by withdrawing from that list. That, in turn, would enable the doctor to apply to other PCTs, without having to declare what had happened. That is continuing present practices in that area.

In broad terms, the noble Earl is right. We are largely talking about—certainly from my own experience when I chaired a family health service authority—serious malpractice or financial irregularities. I am struggling to think on my feet of other circumstances that I have experienced in this area. I will check and if there are others I shall write to the noble Earl.

Clause 175 is slightly delphically worded in the sense that we are continuing a longstanding practice; namely, there are particular aspects of the way in which, for example, a doctor conducts himself, but there is scope for remedial action. I am choosing my words with care. Occasionally, a doctor may go through a bad stage in his life—for example, he may have a little problem with alcohol or whatever—but it is a temporary phenomenon. Providing there is a clear plan to tackle the problem, and it is not so serious that services to patients are adversely affected, common sense prevails. Rather than lose a good doctor, conditions are imposed on the way in which he or she practises. We are talking about, and the provision in the legislation is dealing with, that kind of circumstance. I hope that that gives some reassurance to the noble Earl.

Earl Howe

Indeed, it does. I am grateful to the Minister for that, as I am for the explanation he gave with regard to my other amendments. From his remarks, I am not entirely clear, as regards the declaration of interests, to whom a doctor must declare his interests, how, in practice, that will operate and whether such declarations will be published as public knowledge. If the noble Lord can enlighten me further, perhaps he will write in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 461 not moved.]

Lord Warner moved Amendment No. 461 A:

Page 94, line 23. leave out '"by a Primary Care Trust or Local Health Board"

On Question, amendment agreed to.

[Amendment No. 462 not moved.]

Clause 175, as amended, agreed to.

Clauses 176 and 177 agreed to.

Clause 178 [Special Health Authorities]:

On Question, Whether Clause 178 shall stand part of the Bill?

Earl Howe

What is the intention that underlies Clause 178, which makes provision for a strategic health authority to carry out the functions of a PCT in respect of dental services? The Explanatory Notes are silent on this matter. My understanding has always been that a strategic health authority would never be a commissioner of services of any description and that its role is entirely supervisory. It would be helpful if the Minister could explain what kinds of circumstances might arise which would trigger the making of regulations under the clause.

Amendment No. 476 proposes that the abolition of the Dental Practice Board should not take place until the matter has been debated in both Houses of Parliament under the affirmative resolution procedure. It appears that the Dental Practice Board, when abolished, is to be replaced by a special health authority, but there is little in the Explanatory Notes that sheds light on how it will operate.

The reason for asking for the affirmative resolution procedure is simply that when a major reorganisation of the NHS takes place, Parliament needs the guarantee of being able to scrutinise the detail of what is proposed. Special health authorities are a convenient device which enable the Government to rewrite how the NHS is run. They can be created with relative ease from an administrative standpoint, yet their functions can be complex and of the highest significance. I hope that the Minister will look constructively on the proposal, notwithstanding any resistance her officials may suggest she should offer.

Baroness Andrews

I am completely impervious to resistance from officials. I do not think that I need to say that. There is great cynicism on Opposition Benches about headlines that say "Reject" and "Resist". I can assure noble Lords that we are at one with our officials about these matters.

The noble Earl asked: what is the point of the clause? Perhaps I could give him the brief explanation, which is purely the legal explanation and then answer his questions in relation to functions. I hope that we can come to agreement on that. Currently, Section 16B of the 1977 Act provides for regulations to provide for prescribed functions of PCTs to be exercised by a special health authority. The provision is needed to enable the rights and liabilities of PCTs—for example, financial rights and liabilities—to be transferred by order to the new special health authority established as a successor body to the DPB. That also enables us to allow for transferred functions to be transferred back by order if and when necessary.

For example, the general dental services contract may provide for payments to dentists under such a contract to be made by the special health authority rather than a PCT. The clause would allow an order to provide for the special health authority to take on the PCTs' contractual responsibility for the payments it makes. Subsection (2) makes similar provisions in relation to the local health boards in Wales.

Perhaps I may describe in more accessible language what we are expecting; that is, why we need a special health authority rather than the Dental Practice Board and what we want it to do. At the moment, the DPB is responsible for the payment or remuneration of general dental practitioners who provide general and personal dental services under the pilot scheme. It also approves higher costs and proposed treatments and fees in relation to certain services that are not specifically provided in the statement of dental remuneration. Therefore, it approves associated charges. Recently, it has also been directed, under Section 122A of the 1977 Act, to recover charges and other payments.

It is established under Section 37 of the 1977 Act, and the legislation also states, that the chair must be a dentist, as must be the majority of its members. At the time that the legislation was written, that made a great deal of sense: the board itself was making clinical decisions about proposed treatment. The board no longer concerns itself with clinical issues. Indeed, it has dentists on the staff who provide the clinical advice. Therefore, the board no longer needs that in-built dental majority.

The problem with the current structure is that it is inflexible. It cannot take on the additional functions that do not relate to general or personal dental services because its functions are set down in primary legislation. Therefore, it is difficult to match the capacity of the organisation to changing functions. It does not make best use of its staff. A more modern and flexible foundation for the DPB is long overdue. This is the opportunity for that.

Clause 177 provides for the abolition of the PCB and for the special health authorities to be established under Section 11 of the 1977 Act by the Secretary of State and the Assembly. It is a cross-border SHA and will undertake functions both in relation to England and Wales. As an SHA, it is capable of having functions transferred to it by directions.

The DPB has an enviable reputation of paying dentists correctly and on time. The profession draws confidence from that; we aim to maintain that confidence during the transitional period. We are discussing how best to achieve that with the relevant stakeholders. We also know that it plays an important role in verification of patient charges. Even under local contracting it will be important to ensure that the correct charge is being calculated and collected. We spoke a little about that issue in the early hours of Tuesday morning.

The continuing role of the DPB and the special health authority will maintain that important national perspective. Subject to consultation, the assets, liabilities and staff would be transferred, under Section 11 powers, to the new SHA. In addition to the payment function, the SHA will undertake monitoring and quality assurance—an area we want to see developed.

In terms of the transfer of functions, it may help Members of the Committee if I outline the timetable that we envisage. The DPB will continue to pay dentists on behalf of all PCTs from April 2005 at least through the transitional period, which is likely to run to 2008. However, we shall use the transitional provisions set out in the Bill to enable it to carry out functions in relation to the new contract. We anticipate that the special health authority will be established during 2005 and that it will gradually take on the functions of the DPB until the point at which all those functions have been transferred, when it will be abolished.

We have not yet set a date in 2005 for that, so there will be an element of overlap while the transition is completed. Obviously, funds for primary dental services will be allocated to PCTs in the usual manner. The new SHA will pay out moneys on behalf of PCTs, much as the DPB is doing now. That is how we envisage the timetable for the transfer process.

I turn now to Amendment No. 476, which seeks to make the commencement of Section 177 covering the abolition of the DPB the subject of debate in both Houses under the affirmative procedure. As I have said, for operational reasons the SHA will need to be established before the DPB is abolished. 1 suggest, therefore, that the amendment would not be appropriate since a debate on the regulations under the affirmative procedure at the point of the imminent abolition of the body would be less appropriate than the opportunity we have now to consider the implications. A debate at the point at which the regulations are laid would take place rather after the fact.

For that reason, and given the explanations I have put before the Committee, I hope that the noble Earl will feel able to withdraw his opposition to Clause 178 standing part of the Bill.

11.30 a.m.

Earl Howe

The noble Baroness has made a very beguiling point and I am tempted to succumb to it. I apologise to the Committee for having inadvertently misled it by referring to a strategic health authority rather than a special health authority. I am grateful to the Minister for the useful explanatory background to the process.

However, I still feel that, given the current position of the dental majority moving to a membership and a remit that is not yet clear, there is an important role for Parliament to examine the new arrangements. Perhaps the noble Baroness is right to say that it would not be appropriate to do that at the point at which the old arrangements are abolished. However, I shall have to reflect on the matter and. if necessary, return to it at a later stage.

Clause 178 agreed to.

Clause 179 [Charges for dental services]:

Lord Clement-Jones moved Amendment No. 462A:

Page 96, leave out line 13 and insert— "(b) for the manner in which patients should be informed about charges;"

The noble Lord said: I shall be very brief on this subject. Amendment No. 462A is similar in nature to Amendment No. 441A which we debated during the small hours the other day. I think that the Minister accused me of calling him a creature of the night; I would not dream of saying such a thing, but I daresay we could all be so accused. The debate this morning feels rather like the lull after the tempest, which is a far preferable way of considering these issues.

Put simply, it is important to ensure that patients are informed about dental charges as a matter of course. There should be transparency in this and in a number of other related aspects so that they know what their treatment is going to cost. The Minister confirmed that and gave us certain assurances when we debated Amendment No. 441A. I beg to move.

Lord Skelmersdale

Our Amendment No. 464 has been grouped with this amendment. However, before I speak to it, I wish to point out that, in my view, the proposal to leave out line 13—that is, the provision for calculating the amount of any charge—and replacing it with, the manner in which patients should be informed about charges", is a little strange. I much prefer the second amendment tabled by the noble Lord, Lord Clement-Jones, which would retain the original wording and add his additional form of words.

I turn now to Amendment No. 464. The Explanatory Notes on clauses explain that under Section 79A of the 1977 Act, the arrangements under the existing regulations provide for dental charges to be calculated on an item of service basis, which is what I suspect the new regulations will do as well. However, the notes go on to say: The existing system may act as an incentive for the dental practitioner to maximise the items of treatment provided to a patient to maintain income". That is quite a charge to make, and to say the least it is a little vague. While it does not say that such practices are going on, it suggests that they could. Clause 179 therefore inserts a new section and schedule into the 1977 Act. My problem is this: how will such possible overcharging by dentists be avoided under the new scheme?

A further point occurred to me while looking at the new arrangements. First, presumably new Schedule 12ZA is to be amended by the regulations to be laid under Clause 179(1). I say "presumably" because it is certainly not made clear in the drafting of the clause. Secondly, as I have said already, if I am right and it is intended to have regulations at some point in the future to amend exemptions, then it is quite unsatisfactory to do so by negative statutory instrument. It should be done using the affirmative procedure, a point that I made over and over again at some time between midnight and half-past two on Tuesday morning.

Baroness Andrews

We all had something of the night about us on Tuesday morning, although I thought that we were heroic in our efforts. However, it is nicer to debate these matters when one is feeling relatively more awake.

Let me put the noble Lord's mind at rest on the various questions he raised. Under the current law, Section 79A of the 1977 Act provides for the charges paid by a patient for dental treatment under general dental services to be based on the remuneration paid to the dentist. As the noble Lord pointed out, the present regulations provide for such charges to be calculated on an item of service basis.

The first problem with this system is that patients, dentists and representatives from the Audit Commission have all said that it is very unclear. Dental charges are difficult to understand and raise concerns about the potential cost of treatment, and blur the point at which treatment provided under the NHS moves across, as it were, into private treatment. According to a recent survey undertaken by the British Dental Health Foundation, some two-thirds of people are ignorant about NHS dental charges. We want first to clarify exactly what people are paying for, thus answering clearly the question: how much will NHS treatment cost when I go to the dentist?

In future, dental charges will continue to bear relation to the level of service provided, such as a charge per course of treatment or per visit, but they will not be limited to whether one has had scaling and polishing treatments, or those involving fillings and so forth. We are breaking the link between what the dentist charges per item and his remuneration. It will also be based on volume, quality of service and costs, which is much more sensible.

The noble Lord also asked how we know that the system has operated unsatisfactorily and that there has been a degree of over-treatment. Evidence provided by the BDA suggests that dentists themselves have described the system as a "treadmill": the more treatments they offer, the more they are paid, and thus a perverse incentive base is built into the process. That is why, for example, patients who do not require treatment reviews every six months are nevertheless called in, simply to be told that they are all right. There is consensus that the system needs to be changed.

The new system will avoid such overcharging because it is to be based on a more sensible and strategic framework of charging so that people are treated for what they need rather than what dentists provide. Further, the new arrangements will apply nationally. They are not intended to increase the level of charges, but to ensure greater clarity.

Within this process we shall follow the advice which will be generated by Harry Cayton, the director of Patient Experience and Public Involvement. The majority of people on that body are patient representatives who provide consumers with professional advice. They are considering the charging regime, as the Audit Commission recommended, and we are awaiting their findings, which we expect early next year.

The point about exemptions is very important. I stress that there will be no changes to the current exemptions and that it is not our intention to increase charges. Those two important matters need to be on the record.

Clause 179 replaces Sections 78A, 79 and 79A of the 1977 Act with one streamlined section, proposed new Section 79. Amendments Nos. 462A and 463 seek to make clear on the face of the Bill that regulations made under Section 79(1) may include arrangements under which patients are informed about dental charges. Like the noble Lord, Lord Skelmersdale, I am not entirely sure why the noble Lord, Lord Clement-Jones, seeks to remove the reference to the calculation of charges. It is extremely important—it goes to the heart of the provisions—and should remain in the Bill.

As I said in an earlier debate in relation to Amendments Nos. 439 and 441A, I can confirm our commitment to improving patient information. As I said then, we want that to be set out in national contractual requirements to ensure uniformity and to ensure that these issues can be properly and fully addressed within the regulation-making power under Section 280 rather than within the proposed new Section 79 regulation-making powers. I am unable to accept the amendments for that reason.

Amendment No. 464 seeks to make the regulation-making power for the recovery of charges for dental treatment subject to the affirmative procedure. The Delegated Powers and Regulatory Reform Committee made no recommendation in relation to this, but I understand the concerns that it is a large and wide regulation-making power. The kind of issues raised by the noble Lord are related to other issues in regard to the power itself. We shall look again at the provision to see how the regulations might be made subject to additional scrutiny.

Lord Skelmersdale

This is one of those occasions when, from the point of view of the noble Lord, Lord Clement-Jones, it is slightly unfortunate that these three amendments are grouped. Be that as it may, I was delighted to hear in the noble Baroness's long explanation that there is no intention—certainly at the moment—to make any changes to the exemptions. I am also delighted that the department and her noble colleague have decided to look again at the whole subject of regulation-making powers—which is what I understood her to say—from Part 3 onwards through the Bill. Is that what the noble Baroness said?

Baroness Andrews

I was referring specifically to the regulations governed by the clause.

Lord Skelmersdale

I may therefore have to retract on Part 3. But, certainly so far as concerns this clause, I am delighted with the noble Baroness's response.

Lord Clement-Jones

It gives me great pleasure to see the noble Lord, Lord Skelmersdale, in such jovial form in response to the Government's response, so to speak, compared to some of his contributions at an earlier hour.

Far be it from me to disagree with the Minister. I entirely agree with both her and the noble Lord, Lord Skelmersdale, in regard to line 13. I am delighted that her response to Amendment No. 462A is consistent with the Minister's response to Amendment No. 441A. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 463 and 464 not moved.]

Clause 179 agreed to.

Clause 180 agreed to.

Schedule 11 [Part 4: minor and consequential amendments]:

11.45 a.m.

Lord Warner moved Amendments Nos. 464ZA to 464ZG:

Page 148. line 21, at end insert— "() in paragraph (d), for "or a section 17C employee" substitute ", a section 17C employee or an Article 15B employee" Page 148, line 22, at end insert— "(2A) In subsection (2), after the definition of "the 1978 Act" insert— ""Article 15B arrangements" means arrangements for the provision of services made under Article 15B of the Health and Personal Social Services (Northern Ireland) Order 1972 (1972 No. 1256 (N.I. 14)): "Article 15B employee" means an individual who, in connection with the provision of services in accordance with Article 15B arrangements, is employed by a person providing or performing those services"." Page 148, line 25, at end insert— "15A In section 28EE(2), for "personal" substitute "primary"." Page 152, line 43, leave out "a list" and insert "all lists" Page 152, line 44, leave out "such a list" and insert "a list under that section" Page 154, line 15, leave out "28U" and insert "28TA" Page 154, line 24, at end insert— "38A (1) In Schedule 7A, paragraph 3 is amended as follows. (2) In sub-paragraph (1)— (a) after paragraph (f) insert— "(fa) persons providing primary medical services or primary dental services under Part 1 of this Act;"; (b) in paragraph (g), omit the words from "or under" to "this Act". (3) In sub-paragraph (2), for "(l)(g)" substitute "(1)(fa), (g)"."

On Question, amendments agreed to.

Schedule 11, as amended, agreed to.

Clause 181 [Replacement of Welfare Food Schemes: Great Britain]:

Lord Clement-Jones moved Amendment No. 464A:

Page 98, line 36, after "more" insert "pilot"

The noble Lord said: I hasten to reassure the Minister that this is a probing amendment. I was quite amused to read the Minister's response when he stated that, as drafted, the amendment would condemn the scheme to being run as a pilot for evermore. I had a vision of the scheme being held in purgatory. I wondered whether officials had recently been reading Dante's Inferno. I was not entirely sure, but a nice image was conjured up.

There is a great deal of support for the Healthy Start scheme, for the principle of reforming the welfare food scheme and for the broad principle of widening the nutritional bases. However, the devil lies in the detail. A great number of organisations have an interest in the scheme—the National Childbirth Trust, the CPHVA, the Infant and Dietetic Food Association, the Royal College of Midwives, the Royal College of Nursing, the Maternity Alliance, the British Retail Consortium, the Royal College of Paediatrics and Child Health and so on. So it is not surprising that there are a number of differing views and the Government and COMA have tried to pull together some of the voices on this issue.

But it is not all about differences; there is a great measure of agreement on the scheme and on some of the difficulties it faces. It is this area that I wish to explore and to put forward the thesis that it is extremely important to test out the way in which the scheme will work in practice. Therefore, whether it is called a pilot or a partial roll-out—whatever the language used—it is very important to try out different ways of making the scheme work. It is not entirely clear how it will operate and whether or not mothers will receive the right balance of nutrition from the scheme.

I shall not deal with registration. The amendment of the noble Earl, Lord Howe—which we support—in the next group of amendments deals with that aspect, on which many of the organisations have a common position.

I wish to deal with the value of the vouchers. There is a big issue in regard to their value, currently stated to be the equivalent of seven pints—about £2.20p. That would not be sufficient to pay for the cost of formula milk. For 900 grammes of formula milk, the voucher would need to be worth between £6 and £7. There is great concern that that could cause mothers to move to cows' milk too early, with all the attendant problems that that would involve.

The idea has been put forward, rather imaginatively, by organisations such as the Maternity Alliance and others that a differential could be established so that in the early months—the first six months or, indeed, the first year—the scheme would have a higher value and then in the last years—all within the same overall budget—it would have a lower value. It is very important that that aspect of formula milk provision is dealt with. It would not be cheap, but the scheme could discriminate against mothers who are not breast feeding. Committed organisations such as the National Childbirth Trust—of which I am a patron— and others are very worried about the infant formula aspect.

There is an issue about whether or not the voucher should have a cash value or a food value. Without a food value being attached to a voucher there could be potential discrimination in favour of those with good access to supermarkets. I remember that Tessa Jowell, when she was the public health Minister, carried out a fair amount of work on the aspect of food deserts. We do not all have good access to supermarkets, so that is a real live issue.

There is also the issue of the actual physical delivery of vouchers, which is a problem. In addition, the Maternity Alliance and Royal College of Paediatrics and Child Health are concerned about the introduction of the new tax credit scheme that comes into force this April. It will reduce the numbers of those eligible for the scheme.

On food choice, there is some divergence of view about whether a unified voucher ought to be given, but that is precisely where a pilot scheme would be beneficial. I sympathise with the idea that we should not be a nanny state, that we should allow mothers the choice and enable them to go to supermarkets with a voucher and, within the overall value of the voucher, choose the foods that they think are appropriate. We should also pilot the scheme to see whether that is the best way, or whether it is better to specify that an element of the voucher goes towards fruit and an element towards milk. That is quite important. The British Retail Consortium has qualms about that issue.

It is vital that different options should be piloted and evaluated before the national scheme becomes operational. There are quite a number of questions in that context that need to be raised. Is the value of the scheme going to be roughly the same as it was previously? It has been estimated variously at between £147 million and £167 million. Is there going to be a further cash injection? How many mothers and children do the Government estimate will be eligible for the scheme? On the value of the vouchers, have the Government considered whether there should be a differential between the early and later years?

How will the success of the scheme be actually measured? After all, this is an area in which evidence will be absolutely vital. This is a new scheme, and we do not want to be in a situation in which we take a leap of faith and the scheme is not reviewed or evaluated in a proper fashion, but goes on for as long as the original welfare food scheme.

What "healthy foods" will actually be included in the scheme? Who decides? Will it be COMA or an expert committee involving dieticians and paediatricians? What is the process for that? How will the cash value, if it continues to be the value of the voucher, be protected in future?

A great number of questions hang over the scheme. It has a fair wind in terms of general support, but the reason for wanting it to be piloted is the large number of question marks hanging over it. A large number of organisations want to see the answers to those questions. I beg to move.

Baroness Noakes

We support the noble Lord, Lord Clement-Jones, in his desire for more pilots. He has raised a number of practical issues about how the new welfare food scheme will develop. I shall raise a few concerns now that we would otherwise have raised in the stand part debate. It is probably better to wrap all the concerns up at this point rather than have a separate stand part debate.

We are concerned that, if milk is dropped from the scheme as an essential component, we move from having something of known nutritional value to a scheme in which it may be much less clear whether the equivalent nutritional value will be achieved. We know that the vitamin and mineral intakes for children under five can be, and are, improved by intakes of milk, with some rare exceptions. We do not know how the welfare food scheme might develop in other directions. Dropping milk is a potential problem, because we are moving from something certain to something far less certain.

The noble Lord, Lord Clement-Jones, did not mention the impact on the dairy industry and, through it, on consumers. I am aware that the Government are aware of that aspect, but they seem to be unconcerned about it. Welfare milk is said to account for around 5 per cent of doorstep milk sales, and not all suppliers could cope with the loss of that business. Of more concern is the impact on the loss of milk rounds, because the people who will be affected by them are the more vulnerable people in society, who depend on those deliveries. The Government's response seems to be, "Let the milkmen sell fruit and vegetables", but that is not an easy proposition and it is by no means clear whether it is viable.

My last area of practical difficulty relates to the abuse of the scheme. If we have value-attached vouchers, we must have real concerns about whether those vouchers will be used for nutritious food or for junk food, or worse. I take Members of the Committee back to the days of luncheon vouchers, which I recall from the early part of my employed life. I soon found suppliers who would give cigarettes for luncheon vouchers. I have no doubt that something similar would happen if a monetary value were attached to vouchers. That is why we are concerned about rushing into a new scheme without greater knowledge of what we are doing, because we are potentially throwing away something that has been of undoubted value to young children.

Amendment No. 465 relates to the requirement for the affirmative resolution procedure. We believe that there should be proper parliamentary scrutiny when a new welfare food scheme is introduced. The Department of Health, in its submission to the Delegated Powers and Regulatory Reform Committee, said that it may need to adapt the range of foods regularly. Paragraph 303 of the submission said: This flexibility would be lost if the range of food were … required to undergo a separate and more demanding legislative procedure than the affirmative resolution procedure that applies currently". We are not asking for a more demanding procedure than currently applies, because the current procedure under the welfare food scheme requires the affirmative procedure. We are, in fact, sticking with the affirmative procedure. I would take a lot of persuading that that flexibility means that we have to move away from the affirmative procedure. I accept that scientists' advice, over time, may change the approach to nutrition and, therefore, the composition of the scheme. However, I entirely reject the notion that the affirmative procedure would act as a serious brake on our ability to flex the welfare food scheme over time.

I hope that the Minister considers seriously the points encompassed in the thrust of the amendment introduced by the noble Lord, Lord Clement-Jones, if not its exact wording, and the parliamentary procedures applied to any new scheme.

Baroness Howarth of Breckland

I was going to make various points, but the Olympian canter that the noble Lord, Lord Clement-Jones, made through the whole argument leaves me wanting to make just one strategic point. There may not be a need to support a pilot scheme, but there is a real need for research into the possible outcome of the changes. Having said that, I am very much in favour of modernising the welfare food scheme.

The Food Standards Agency, of which, as Members of the Committee will have heard me declare several times, I am a board member, has, with the Department of Health, been seriously challenged by the difficulties of developing a good nutritional policy that would change the eating habits and improve the health of the nation. Your Lordships' recent debate on obesity, particularly in children, illustrated the difficulties we face.

The replacement welfare food scheme will ensure the availability of a wider range of foods and will provide greater opportunities for families to receive expert advice on food for children. We shall debate some of the difficulties of registration. The replacement welfare food scheme will contribute to the wider task of the agencies in their strategic aim and give mothers in particular a new relationship with the health service. It is vital to know and understand how it works. I do not necessarily support pilot schemes as I believe that we need to change the whole scheme. However, it is utterly vital that we have something in place to measure the impact of what we are doing.

Noon

Baroness Finlay of Llandaff

I hesitate to join the debate having missed the marathon session. I am not sure whether my flu did me a favour or a disservice as that session appears to have been an entertaining night. I support the concept of a pilot scheme as proposed by the noble Lord, Lord Clement-Jones. As the noble Baroness, Lady Noakes, pointed out, the devil is in the detail. There is potential for abuse. Until a scheme is implemented and monitored on a day-to-day basis, and the results of that monitoring are available to the Government, the potential for abuse of a scheme, and its potential to educate the eating habits of the nation, will not become apparent.

The noble Baroness, Lady Howarth, referred to the debate on obesity. The appalling deteriorating nutritional state of children in this country is evident. There certainly is a need to do something in that regard, but without a careful weighing up of the pros and cons of any scheme we shall be unable to assess the complexities of implementation. Therefore, I strongly support the concept of a pilot to gain the evidence that we so badly need.

Baroness Andrews

I am very grateful to everyone who has spoken in the debate and for the warm welcome from noble Lords on all sides of the House. I understand the difficulties that the Committee has in debating a scheme which is in development, as it were. Many details are currently out for consultation. I hope that I can address most of the questions that have been raised and provide some background.

The Committee is aware that, since its inception, the welfare food scheme has been of tremendous value to millions of families. However, it was introduced in 1940–63 years ago—and was designed to reflect the specific needs and expectations of families during wartime. The needs of families have changed, as have their expectations. Our knowledge of nutrition and child development has changed. We are in a very different situation now from that of 1940. The only thing that has not changed is the scheme itself. We have taken steps to ensure that we can effect permanent change taking with us not just the people who are knowledgeable about nutrition but also the beneficiaries of the scheme and the dairy industry. I shall discuss that matter later.

The noble Baroness, Lady Howarth, talked about the strategic importance of making the link between what we intend to put in place for young mothers and babies and the nutritional choices and issues facing the nation as a whole. That is indeed part of the context in which we are working to change eating and nutritional habits and to help people to build up a lifelong habit of healthy eating and good health. The second part of that strategy is to create better ways for young disadvantaged families in particular to link into the NHS itself so that they can get the added support, information and help that they need to make nutritional choices that will suit them and their families throughout their lives.

I have outlined the main aim of reforms but the Committee will want to know more about the regulations. I completely accept that consultation and debate are essential if we are to introduce reforms which low-income families want and which food suppliers can operate. In March this year we published our consultation document based on almost 500 responses, which demonstrated broad consensus across the spectrum on the need for reform as well as support for the principles of reform, and particularly the introduction of greater choice in the range of foods provided. Questions and concerns were raised on the detail. We are continuing that dialogue informally but consistently with key stakeholders, including beneficiaries and the dairy industry. Recently we produced a report with beneficiaries which contained germane questions about points of access and registration. To our pleasure, the overwhelming number of responses were positive. We shall let noble Lords have that information as soon as we can.

We do not want to lose out on opportunities to support new mothers in the pre- and post-natal stages. All we know about health inequalities indicates that they start at birth. I refer to low birth weight babies, higher mortality and higher morbidity for disadvantaged families throughout their lives, which result in the tragic statistics of shorter lives. It is extremely important to get young mothers into contact with the health service, to give them the information that they need and to expand the range of nutritional support through the scheme.

Officials have met representatives of the dairy industry, infant formula manufacturers, retailers and health professionals on a regular basis and their views are being, and will increasingly be, fully considered. As I said, feedback has been extremely important. We expect to publish the full details of our plans for reform later in the year. We shall obviously consult fully and publicly on the draft regulations for the scheme in 2004.

I turn to the case made for piloting and testing by the noble Lord, Lord Clement-Jones. We have full sympathy with that case. The regulations will encompass whatever arrangements for phasing in and testing prove appropriate. I assure the Committee that we do not think it would be fair on beneficiaries or providers to bring in new systems without ensuring that they will work in the way we hope and expect they will. To that extent we are minded to pilot or phase in the introduction of the scheme. We are still consulting on how best to do that but I certainly give the Committee that assurance. The problem we have with the amendment that the noble Lord has tabled is that it would restrict the scheme only to pilots. That is obviously something that we find difficult to accept. It would prevent us making the changes that we know from our feedback beneficiaries want without further primary legislation. It would also take time. After 63 years we are anxious to move swiftly on this proposal. It is not clear from the amendment what a pilot might comprise, how long it would last and what would happen to the scheme in the mean time.

The noble Lord asked some very specific questions which I shall try to answer. The noble Lord asked about the value of the voucher regarding younger infants. We consulted on that matter. It was widely welcomed. We propose to give the parents of younger infants more help with the cost of infant formula. One of our main intentions is to increase the incidence of breastfeeding. We want to be certain that whatever we come up with will encourage young mothers to breastfeed. That is perfectly consistent with what the Government have said recently about breastfeeding.

At the moment the specific value of the voucher has not been set. We proposed in the consultation document that the value should be broadly equivalent to seven pints of liquid milk. We are taking all views fully into account and considering how best to assess the various options for the voucher value. Currently we spend £142 million on the scheme as a whole. We should like to keep the scheme within those bounds.

I shall now address the question of the number of beneficiaries. I was asked how many people would receive the benefit. Currently, 800,000 new mothers, pregnant women and those with children under the age of five get the voucher. We would expect that number to be sustained. The number of beneficiaries obviously varies according to the number of people on benefit.

At the moment one does not receive the voucher unless there is evidence of pregnancy, and the maternity benefit form is used as evidence of that, so many young mothers do not come into the scheme until quite late in the pregnancy. Through the registration system we are aiming to bring young mothers in earlier so that they have a better chance of being supported through the pregnancy by the health professionals. We believe that that could be a more successful way of dealing with the matter.

The noble Lord also asked about monitoring and evaluation, which is a very important element. As I have said, if we phase it in that will enable us to learn from experience. We are also very keen to get robust evaluation. We shall certainly discuss how best to do that, whether it will be academically-based or practitioner-based. We have no intention of proceeding without a very robust evaluation scheme.

The noble Lord also asked about healthy foods. We have talked about fruit and vegetables and cereal-based foods: that could be pasta or bread. We are still discussing with the nutritional experts the range that might be possible to achieve. As I shall argue in a little while, one of the arguments for flexibility is to have the ability to add different foods. For example, and speaking very personally, fish oil has been shown in recent years to have a significant impact on the brain development of young children. We are constantly faced with new information about nutrition.

I shall now move to some of the questions which the noble Baroness raised. She asked about milk in particular and the difficulty in exchanging its nutritional value for new food. The important thing is that milk is not going to be withdrawn. If families so choose, it will be possible for them to use their vouchers for a high proportion of milk. We are following the scientific advice of COMA in this matter. The scheme has, and will continue to have, a scientific base. We want to be certain about that.

As regards the impact on the dairy industry, the Government are certainly not unconcerned about it. We have consulted widely with the dairy industry. We know that there are a number of milk roundsmen who receive more than 7 per cent of their income from milk deliveries. We know that vulnerable people often depend on the milk round. We continue to consult with the retailers and the dairy industry on the matter. We have commissioned KPMG—the noble Baroness has an insidious influence on our tendering. I am not quite sure how to explain it. We are looking to that company to advise us on the specific area of milk delivery systems.

We are also looking at abuse. There is abuse of the system under the present scheme and most of it seems to derive from the suppliers and retailers charging over the odds, as it were. If we have a fixed rate voucher we believe it will remove that problem. We shall have four teams checking on the retailers to ensure that they sell the right range of foods. We shall require suppliers to sign up to a range of foods on registration. We are definitely not dropping milk. We shall be involving retailers in the decisions as they emerge. If I have not answered some questions I shall be happy to write to Members of the Committee.

I now turn to the affirmative resolution point and try to explain why we are convinced of the necessity for such regulations on this aspect. Affirmative regulations do have some disadvantages in the context of flexibility. The noble Baroness mentioned scientific evidence. Other potential changes are coming along in social security, tax benefits, and changes to health service delivery. The affirmative resolution procedure is more complicated. All the regulations covering the current scheme follow the negative procedure except for those describing the food to be provided. It is very interesting to note that the scheme has been changed over the past 63 years in every respect except this. This one area, which has been subject to the affirmative resolution, has not been changed since 1988. That of itself illustrates part of the problem we face.

In reviewing the existing scheme, the committee dealing with medical aspects of food and nutrition policy was clear that any scheme needed to offer a broader range of foods. So we believe that it is essential that the scheme is sufficiently responsive to the needs of the beneficiaries. As I have said, we propose to pilot, monitor and evaluate; we propose to build in as much flexibility as possible so that we can keep the scheme going. For example, it might be possible to phase in new foods. We need operational flexibility because of the major changes in tax credits and the changes in the way the food is supplied. We are very anxious indeed to avoid inflexibility, restrictiveness, and slowing down the necessity for change after all these years.

The Delegated Powers and Regulatory Reform Committee did not disagree with that proposal. It took the point that the negative resolution procedure served the scheme better. I urge Members of the Committee to think carefully about the implications of the affirmative resolution procedure for low-income beneficiaries who rely on the scheme to contribute 20 per cent of their weekly food budget. We want to move fast and to be flexible. On those grounds and in view of the explanations that I have given, I hope that the noble Lord will be able to withdraw his amendment.

12.15 p.m.

Baroness Noakes

Before the noble Lord, Lord Clement-Jones, decides what to do about his amendment, perhaps I may return to a couple of points. The Minister said that she needs to move quickly. We cannot see the need for that. The current scheme is not failing. There may be some problems with it and issues of abuse at the margin. But the scheme is delivering milk, which has a known, life-time nutritional effect, particularly on young children. We are moving towards a scheme which has potential problems. I am not disputing that other foods have good nutritional value, but turning that into a food scheme is far from easy. The noble Baroness said that she is sympathetic towards pilot schemes, but she wants to move quickly. I believe that means the exclusion of pilot schemes, which are the subject matter of the amendment moved by the noble Lord, Lord Clement-Jones.

As regards my own amendment, I am far from convinced that the affirmative procedure, which merely adds another few weeks to making changes, is inappropriate. It is certainly appropriate for Parliament to have a really thorough look at the scheme when it is first introduced. I will not be pressing the amendment today, but I put the noble Baroness on notice that we are quite unmoved by her argument on not wanting affirmative regulations for this scheme.

Baroness Andrews

I shall respond to the point about moving quickly. I reiterate that we wish to get the matter right. I am serious when I say that we want a pilot scheme because that is extremely important. We would certainly not sacrifice getting the measure right for the sake of speed. We need to identify potential problems.

The present scheme has been successful, but it was conceived at a time when the need for milk was overwhelming. While milk will not be dropped from the scheme and it will be a major part of it, we are now offering nutritional choices which match our knowledge of what children and mothers need and which can be provided as part of our general drive to try to raise health standards. As I have said, the affirmative regulations are important because they mean we can continue to build in flexibility as the scheme develops and as tax credits, social security schemes and health delivery schemes change. I hope that the noble Baroness will be able to reconsider her view.

Lord Clement-Jones

I thank the Minister for her reply to my Amendment No. 464A and I thank all noble Lords who took part in the debate. I was interested in the description of me given by the noble Baroness, Lady Howarth—going for an Olympian canter. I assume that that makes me Bucephalus for this purpose, but I am not sure.

All noble Lords said that it is vital to know how the scheme is working and to measure its impact. We all accept the point on strategic importance, made by the noble Baroness, Lady Howarth. It was interesting to hear the Minister unpick the strategy. We all accept the nutritional strategy, but the question which will arise under the next amendment is how far should the second limb of the strategy be pushed. It links disadvantaged families into the health service—the gatekeeper issue—and is an important aspect.

There has been a consultation exercise and the broad thrust of the reforms is generally welcome. However, the road map from here which relates to these proposals will be important. We want all the multifarious organisations to get behind the scheme. I welcome the Minister's comments that there is a commitment to a pilot scheme or phased roll-out, whatever it is called. However, the sooner the Government can set down a more detailed map of how that will work indicating what they have in mind, the better—and preferably before the Report stage.

There have been 63 years to work out alternatives, as the Minister made clear, but we have a shadowy outline of the way forward. I believe that it would be possible to say, "Right, this is the way we plan the roll-out and this is the way we plan the implementation. These are the ideas we have about actual measurement. This is the body which we think is the appropriate one. This is the kind of voucher and this is how they will be distributed". It is not beyond the wit of man or woman to get that right at this stage.

I hear what the Minister said about the value of the voucher, but she also talked about additional help with formula milk and so forth. I gained a vague impression that something is happening, but it is not entirely clear what that is.

The noble Baroness also mentioned a total cost of £142 million. That is interesting because it is the first time I have heard a concrete statement about the cost of the scheme. Some people would have put it rather higher than that. She also mentioned that 100,000 people will be eligible. I welcome the fact that in broad terms the Government expect the same numbers of people to be eligible.

However, many details—for instance, as regards the way in which implementation will take place and the basics of the scheme—have not been addressed. Have the Government addressed the issue of cash or food? There is a genuine point behind that question. Have they really considered whether different types of vouchers will be appropriate? That said, there is a big communications issue. It will be vital to communicate how the proposed scheme will work, starting at the beginning—which is now—saying, "Right, this is how we go forward". I therefore suggest that everyone gets their thinking cap on extremely early, starting this afternoon—

Baroness Andrews

I thank the noble Lord for saying that. We are very keen that the educational and information strategy is as good as it can be.

Lord Clement-Jones

That is great, but perhaps the communication of that to noble Lords at the Report stage would be a good way of demonstrating the Minister's commitment in that respect. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 465 not moved.]

Baroness Noakes

moved Amendment No. 466: Page 99, leave out lines 13 to 27. The noble Baroness said: The amendment seeks to delete subsection (4) of new Section 13 of the Social Security Act 1988. Put simply, subsection (4) reeks of the nanny state which we believe the Government would secretly like to create. They seem to crave interference in the private lives of the citizens, which is why, for example, there has been a massive creation of means-tested welfare dependency. For example, more than half the number of pensioners could, if the Government have their way, be subject to means testing. Of course that will not happen because elderly people value their dignity and privacy and will opt out of means testing, even if it costs them. And even the Government admit that because they anticipate that only two-thirds will receive their pension credit entitlement. Therefore, the Government know that schemes which undermine dignity and privacy will not work. But when we come to the new welfare food scheme, they have not learnt. We have another blatant attempt to interfere in people's private lives.

Subsection (4) can make a condition of receiving welfare foods attendance at a hospital, clinic or doctor's surgery; an examination; home visits by state busy-bodies; or being on the receiving end of lectures. Those lectures are not just about nutrition and diet; they can extend to any other health matter. So the state will exploit the vulnerable to keep its vice-like grip on those people's lives.

Subsection (4) is offensive, which is why we oppose it in principle. We also believe that it is likely to be counter-productive in practice. It will, like the means testing of benefits, drive many away. Others may subject themselves to the indignity, but to what effect? I do not believe that the Government have produced any evidence that their forced intrusions into private lives will have any beneficial effect. Will the Minister say on what evidence this particular part of the scheme is based? Have the Government measured the effectiveness of forced clinical and other interventions?

This subsection is bad law. It is opposed by the Royal College of Nursing and the Maternity Alliance, among others. It should not be allowed to remain in the Bill. I beg to move.

Lord Clement-Jones

The noble Baroness, Lady Noakes, has typically been extremely cogent in introducing the amendment. We on these Benches support her. Philosophically and nutritionally speaking, we are happy with the overall concept of the new "healthy start" scheme, but the subsection is one of the major stumbling-blocks.

I sense from the Minister's letter that as regards the clause the dish has run away with the spoon. Someone who had clearly been working in the Soviet health system decided that it would be nice to insert subsection (4) and no one spotted it until it was too late. It is now in the Bill and the Government are having to decide whether it is a good idea.

There has been a universal ruffling of feathers from many organisations which are intimately bound up with child health, primary care and general practice. The noble Baroness, Lady Noakes, mentioned the Maternity Alliance. It states: Opposition to the proposal to make midwives and health visitors gatekeepers of Health Start is both philosophical and practical… penalising a child for the non-compliance of an adult could never be justified … far from improving contacts with health professionals, it may simply decrease uptake of Health Start". The CPHVA states: We object strongly that professionals, in particular health visitors, become gatekeepers to benefits in this way". The RCPCH states: Insistence on early registration might exclude. The system should be flexible so that mothers can register at any point during their pregnancy or their child's first five years". That is a slightly different view.

The RCN has been particularly strong. It states: The RCN is opposed to compelling beneficiaries to register for the scheme and believes that it would detrimentally affect the nurse/client relationship and may also deter mothers from low-income families seeking assistance". Its concerns are highly specific. It is philosophical. It believes—we on these Benches strongly agree, as do, clearly, the Conservative Benches—that the principle of conditionality in respect of this type of welfare is wrong. There is a human rights issue; there are practical objections to the measure; and, as is clear from my earlier quotation, the RCN believes that the nurse/client relationship could be affected by the measure. Of course, that applies to the other health professionals who are potentially involved in administering subsection (4).

I suggest that the Government take away this subsection, burn it and think of something entirely different and far more appropriate and acceptable in the circumstances. They will find a great deal more buy-in to the scheme as a result.

12.30 p.m.

Lord Chan

Having listened to noble Lords who have spoken about this subsection, I begin to wonder whether the Minister has a special reason for inserting it. I should have thought that the 800,000 people who will come under the scheme would be those living in areas of deprivation. They would also have health inequalities and would, in any case, require help from the NHS—particularly at primary care level. Therefore, they would be in touch with local health professionals, who would assist them and, it is hoped, would also encourage them to make good use of the scheme.

The subsection reads as a rather heavy-handed way of requiring people who use the vouchers to attend hospital and so on. Therefore, I am not clear why this provision is included as part of the scheme. I should like the Minister to help me with an explanation.

Baroness Finlay of Llandaff

As my noble friend Lord Chan rightly pointed out, the very people who will be subject to this scheme will be those in areas of deprivation. I want to add a little detail to the debate for consideration by the Minister. I want to draw attention to the GP vacancies which exist, particularly in areas of deprivation. Anything that changes the role of the GP in those areas from being a person who works with his patients to being someone who is seen in an administrative role inevitably will drive young trainees further from such areas of deprivation.

In the past year, there has been an increased vacancy factor of 3.4 per cent in general practice. That is a very worrying trend. There are huge recruitment problems in areas of deprivation. One thing that may attract younger trainees to such areas is the possibility of working in a different way—that is, in not such an administrative way—with their patients in the future. Therefore, I am concerned that the scheme may be cumbersome and rebound on areas other than directly on the scheme itself.

Baroness Howarth of Breckland

I think I understand the aim of the clause, but I believe that the implementation of the scheme would be extraordinarily difficult and therefore I cannot support its inclusion. But I understand the need to get young mums in difficult areas to make a link with the health service. I would support that as part of the broader nutritional strategy, which we are all trying to move forward.

However, I believe that the communication/ education phrase is probably a better one, and there are other ways in which the scheme can be carried out. To gain the vouchers at all, even under the present scheme, there will have to be a link with verification of pregnancy or of having children in the family. Surely we can develop that. But also, as changes in the type of credit available are introduced, surely we could include leaflets in that information. A wide range of alternatives is available which would not interfere with the relationships between the health professionals and the sometimes extraordinarily difficult to access families with whom they are trying to work.

Baroness Andrews

I am grateful to all those who have spoken in the debate. There has certainly been some very strong language, especially from the Opposition Front Benches. Nothing could be further from our intention than that we should exploit vulnerable people. The scheme is about creating better links in order to support vulnerable, disadvantaged people. The aim is that the health service should move nearer to their needs in more comfortable and more effective ways so that they have better lifelong relationships with the NHS and so that their children stand a better chance of receiving nutrition which helps them to grow healthily, avoid obesity and become healthy and active citizens. Therefore, I take issue with the language that has been used.

I understand that there are concerns about subsection (4) and I shall address the specific issues. However, first, perhaps I may answer a few of the questions raised. I turn to the matter referred to by the noble Lord, Lord Chan, who has enormous experience, which I respect a great deal. Our experience and evidence suggests that low-income families are less in touch with health professionals than middle-income families. To an extent, that explains their reluctance to go to the doctor or to make contact with a health visitor. That happens for all sorts of reasons—particularly in the case of young women. They attend later in pregnancy than higher-income women and they come with complications. They come not having had the proper nutrition that, thankfully, people such as us take for granted. We need to encourage and inform them.

I say to the noble Baroness, Lady Finlay, that the scheme is not about an administrative role for GPs. I hope very much that in the information that we distribute we make that clear. It is about bringing in low-income families on a confident, comfortable basis in the same way as we do with higher-income families and those who are more used to dealing with authoritative figures in society, of whom the doctor is certainly one.

We have also tested out the scheme with beneficiaries. Many beneficiaries welcomed the idea of receiving more support to help them to eat a more healthy diet and to navigate their way through the available information about what is and is not healthy. That information is often very confusing. They also welcomed the idea of being encouraged to obtain help with budgeting and to know that cooking is sometimes an easy alternative. I say that without being patronising. This is nothing to do with nannying; I believe that many people simply need to get their hands on the right information. We certainly welcome the schemes that exist. The Sure Start scheme has been a great success because it has made the link between low-income families and sources of support. I consider it to be a very good model for this scheme and we want to build on that.

We also know from the Acheson inquiry into health inequalities that breast-feeding confers short and long-term health benefits. However, the vast majority of mothers still choose to bottle-feed and we want to address some of those issues in relation to young mums, as mentioned by the noble Baroness, Lady Howarth.

As I said, we are talking about 800,000 eligible people. However, I reiterate that the current scheme is missing a major opportunity to bring the family within the framework of the National Health Service in more effective ways and to tackle health inequalities that start at birth. The aim of the reformed scheme is to make better use of that potential and, indeed, to offer the health professionals themselves a better way of becoming involved. The scheme provides the most significant opportunity that health professionals have had for a generation to achieve their aims of improving nutrition and health outcomes. That is why we want to implement a new system of support, advice and guidance and why information and help is so important. It is important to get the communication right.

It is not our aim to introduce a series of new contact points; nor is it our aim to place undue burdens on the NHS or the beneficiaries or to put at risk the important relationships that exist. That is precisely why we are consulting so widely. We are going to build on existing NHS practices and contact points for pregnant women and young mothers in a way which is proportionate— proportionate with human rights as well—and which complements the role of health professionals. We are going to use the existing network. We want to encourage a more effective take-up of ante-natal services. But I assure noble Lords that we would not expect to set up schemes outside the normal provision which is available to all. We shall not insist that low-income women be subject to any examination outside the normal procedures that take place at present when any woman confirms her pregnancy. To receive maternity benefits at the moment one has to provide proof of pregnancy and that is why people have to fill in forms.

These aims are wholly consistent with our wide objective to reduce child poverty and to reduce disease. As I have said, a similar model is set out in Sure Start, which has a 95 per cent take-up rate. We anticipate similar levels of take-up. If the amendment were to be accepted, this vital opportunity to tackle health inequalities would be severely threatened. We would lose that opportunity. We would lose the potential of a very important change in the way that we do things.

However, I have been listening very carefully to the points that have been made. I understand that people feel seriously about this issue, particularly about the requirements relating to physical examination. We know that that has caused some concern. Therefore, I am minded to take the amendment away for reconsideration. On that basis I hope that noble Lords will withdraw their amendment.

Baroness Noakes

I thank the Minister for that reply. If it had not been for her last comment, my response would have been framed in the strong language that she does not like. If she wants to hear strong language, perhaps she would come to my room later where she could find out what really is strong language.

I thank all other noble Lords who have taken part in this debate. Some important issues have been raised. We are not at odds with the Government in wanting to help young mothers do well for their children and for themselves. We want that as much as the Government do. The question is the means. We have been most concerned about the compulsion behind subsection (4). The noble Baroness, Lady Howarth, spoke of helping, encouraging and informing. That is what we should be doing, not prescribing that a woman has to have a physical examination or a lecture or has to allow someone into her home and so on. That is why we find subsection (4) so wrong—not because we disagree with the aims.

We believe that the scheme could perfectly well be carried out in a proper way—without subsection (4)— by encouragement, and not by compulsion. I am very glad that the noble Baroness will take the amendment away and reconsider it for Report stage. I encourage her to think very hard about it before then. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 181 agreed to. Clause 182 agreed to.

[Amendment No. 467 not moved.]

Clause 183 [Appointments to certain health and social care bodies]:

[Amendment No. 468 not moved.]

Baroness Noakes moved Amendment No. 469:

Page 102, line 24, at end insert— "() If the Secretary of State holds any appointments functions in respect of which he has not made a direction under subsection (2), he shall make an annual report to each House of Parliament setting out the appointments functions concerned and the reasons for the retention of exercise of those functions."

The noble Baroness said: Having dealt with the welfare food schemes, I believe that we have turned the final corner on this Bill. In speaking to Amendment No. 469 I shall speak also to Amendment No. 470. We have already debated the thrust behind Clause 183 on several occasions. It concerns the various appointments that are made in the NHS being delegated to the NHS Appointments Commission. We discussed that when we talked of the regulator, CHAI and CSCI.

Amendment No. 469 simply provides for parliamentary scrutiny of those appointments that are retained by the Secretary of State. It is all very well setting up a power to transfer the requirements if some appointments functions are retained— I do not think that this is the time to debate which will be retained— but this amendment concerns the transparency of the appointments that are kept, stating the reasons for them being kept.

Perhaps the Minister would mention the directions given by the Secretary of State. Subsection (2) talks of making a direction and of giving a power of appointment to the commission. Will the Minister say whether, having made a direction, the Secretary of State can take that power of appointment back again? I am working on the assumption that that is the case and, therefore, that it would be right, over time, to retain the visibility of what is or is not being delegated. Perhaps the Minister could confirm that.

Amendment No. 470 is a probing amendment. Paragraph 2(2) of Schedule 12, which the amendment deletes, transfers the appointment powers of Her Majesty the Queen to the Privy Council, with the intention that the Privy Council delegates to the Appointments Commission. That relates to the General Medical Council. My question is simple: have the Government consulted Her Majesty before attempting to remove her powers? I beg to move.

12.45 p.m.

Lord Warner

On taking the direction back, the answer is yes, the Secretary of State can.

I put on the record that it is expected that most of these appointments will be delegated to the Appointments Commission but there is a need to retain some appointments. That is particularly so in the area of highly specialised advisory bodies, where the relevant specialist skills and knowledge are likely to be within the department. That puts the matter into context.

As the Committee is aware, the Appointments Commission is a relatively new innovation, but it is an innovation particular to the Department of Health. Most other public appointments outside the health area are still currently handled and made by the other departments and the Ministers concerned. Details of those appointments are published via press releases as well as being set out on an annual basis in the Cabinet Office publication, Public Bodies.

That will still be the case in relation to appointments for which the Secretary of State in the Department of Health continues to be responsible, including both the appointments made by the commission and those made directly by Ministers. Any appointments made by Ministers will be subject to audit by the Commissioner for Public Appointments and she will also consider any complaints made about the appointments process in exactly the same way as she does for appointments made by other government departments.

Therefore, I can see no reason why there is a need for Department of Health appointments to be singled out and treated differently from public appointments made by Ministers of other government departments. It implies that the occupants of Richmond House are rather more disreputable—that is an offensive remark—than other public appointments made by other Ministers. We are singling out the Department of Health, and if that is what the noble Baroness is saying perhaps we should get it on the record.

Amendment No. 470 changes the context. On the question of whether Her Majesty was consulted, where there is change in legislation that affects Her Majesty the normal practice is that consultation takes place with the Palace. I shall check that and let the noble Baroness know.

Baroness Noakes

I thank the Minister for his reply. I did not suggest that the Department of Health was disreputable. That is too strong a term. But the Department of Health has been criticised by the Appointments Commissioner for the over-politicisation of its appointments, which is why the NHS Appointments Commission came into being in the first place. My amendment is a logical end point of that process. The reason is that the Department of Health was perhaps thought, in some quarters, to have had a case to answer. I shall consider carefully what the Minister has said.

Lord Warner

I believe that the department has answered the question and the concerns by setting up the NHS Appointments Commission.

Baroness Noakes

That is quite so. That is why, if the department hangs on to anything, we have tabled this amendment which is about transparency. I shall not pursue that point today. I look forward to hearing the Minister's confirmation or otherwise in relation to my probing Amendment No. 470.I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 183 agreed to.

Schedule 12 [Privy Council appointments]:

[Amendment No. 470 not moved.]

Schedule 12 agreed to.

Clause 184 agreed to.

Clause 185 [Validity of clearance for employment in certain NHS posts]:

Baroness Noakes moved Amendment No. 471: Page 103, line 28, leave out subsection (2).

The noble Baroness said: I shall be extremely brief in moving Amendment No. 471, which amends Clause 185. It is a probing amendment. We support the protection of vulnerable adults scheme introduced by the Care Standards Act 2000. We have no problem with the basic thrust of Clause 185. My question to the Minister is: what has happened to the scheme? When will it actually start to protect the vulnerable adults whom it is supposed to protect? I beg to move.

Lord Warner

Consultation is still taking place on the scheme. We would hope to introduce it as quickly as possible. That is why provision is being made in the Bill.

Baroness Noakes

Will the Minister elaborate on "as quickly as possible"? It is a little like "shortly"; it is one of those elastic terms that we come across a great deal in Committee.

Lord Warner

I do not have a date in my notes, but outside the Committee I shall be happy to give the noble Baroness our best estimate of when the scheme will come into operation.

Baroness Noakes

I thank the noble Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner moved Amendment No. 471A: Page 104, line 9, at end insert— () The effect of subsections (1) to (3) is to be disregarded in determining for the purposes of section l of the Regulatory Reform Act 2001 (c. 6) (power by order to make provision reforming law which imposes burdens) whether any provision of either of the following Acts falls within subsection (4)(a) of that section (provision amended by an Act within previous two years)—

1. (a)the Protection of Children Act 1999 (c. 14);
2. (b)the Care Standards Act 2000 (c. 14)."

The noble Lord said: The Department of Health, as I said in a previous amendment, plans shortly to begin a public consultation exercise on the commencement of the protection of vulnerable adults (POVA) list provisions contained within the Care Standards Act 2000. There will be a public consultation exercise on that.

The POVA list will be a list of people judged unsuitable to work with vulnerable adults. As part of that consultation we shall be asking for views on certain easements; for example, should a check against the POVA list for work with one agency remain valid for work with another agency? At the moment, a person would need to apply for a fresh POVA check each time he or she signed up to a different agency. Once the POVA scheme is commenced, this requirement may cause an unnecessary financial burden on employers and employees, in certain circumstances.

Should the response to this consultation proposal be positive, the Government would consider seeking a legislative vehicle—possibly a regulatory reform order—to provide easements in the Care Standards Act. An RRO cannot be used in relation to legislation that is less than two years old on the date that an RRO is made. Given that Clause 185 of the Bill makes amendments to the POVA provisions in the Care Standards Act 2000 and to the Protection of Children Act 1999, it is doubtful that we would be able to use an RRO to make further amendments within a two-year period. It is for that reason that we seek this technical amendment. I beg to move.

Lord Skelmersdale

Section l of the Regulatory Reform Act talks about order-making powers. What is the point of having such a power if primary legislation, such as this, extends the time limit for putting in the order? I do not understand the position.

Lord Warner

The noble Baroness supports the bringing of this scheme into operation as quickly as possible in order to reduce the risk to vulnerable adults. We are taking a precautionary measure so that we will not be delayed by the need for primary legislation in this area. The provision is very specific to this scheme. It merely deals with a public safety issue.

On Question, amendment agreed to.

Clause 185, as amended, agreed to.

[Amendments Nos. 472 and 473 had been withdrawn from the Marshalled List.]

• Clause 186 agreed to.
• Schedule 13 agreed to.
• Clauses 187 to 190 agreed to.
• Clause 191 [Orders and regulations]:

Earl Howe moved Amendment No. 474: Page 105, line 10, at end insert— () The Secretary of State shall have a duty to consult the Scottish Parliament or the Assembly before making any regulations under this Act which have an impact on the provision of healthcare by NHS bodies which serve patients both in England and in Scotland or. as the case may be, in Wales.

The noble Earl said: We had an extensive debate last week on the impact that devolution has, and will continue to have, on patients who cross the border of Wales or Scotland for treatment in England; and, indeed, vice versa.

I spoke of my concerns about differing standards that may apply on one side of the border relative to the other. I mentioned the risk of dual inspections and dual protocols. I spoke of the possibility of Welsh patients being at a legal disadvantage compared to English patients if a Welsh commissioning body sought treatment for those individuals in England.

The Minister was, if I may say so, rather too dismissive of those concerns. My amendment proposes that the Secretary of State should have a duty to consult the Scottish Parliament or, as the case may be, the Assembly before making any regulations under this Bill that have an impact on any NHS bodies in England which deliver treatment to Scottish or Welsh patients. I do not believe that that is a lot to ask. The Minister may not think that the issues I have flagged up are all that serious, or even real issues at all; but there are many who do; and I believe that the least we should do is to enable the cross-border impact of this Bill to be minimised from the very outset by allowing all those with a potential interest to discuss the issues among themselves. I beg to move.

Lord Warner

I thought that the Committee was aware that both the Assembly and the Scottish Executive are and will continue to be consulted as necessary on parts of the development of any set of Westminster regulations. We are not doing anything here which is unusual. We continue to have those consultations. This consultation can take place at ministerial or official level. Day in and day out those kinds of discussions lake place. Of course the Assembly and the Scottish Parliament can hold to account as they see fit Assembly Governments and Scottish Executive Ministers.

We do not think that it is necessary to put the provision in the Bill. Post-devolution settlements are working properly. We do not think that it is necessary to specify this particular change in the area of health.

Earl Howe

I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner moved Amendments Nos. 474A and 474B: Page 105, line 14, at end insert—

"(4A) The Secretary of State may not make a statutory instrument containing—

1. (a)regulations under section 146(12),
2. (b)the first regulations made under section 149(2), or
3. (c)an order or regulations under this Act making, by virtue of subsection (l)(b), provision which amends or repeals any part of the text of an Act, unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."

Page 105, line 15. leave out "an" and insert "any other"

On Question, amendments agreed to.

[Amendment No. 475 not moved.]

Lord Warner moved Amendment No. 475A: Page 105, line 16, after "section" insert "22, 25(3), 28 or

The noble Lord said: Amendment No. 475A is technical and corrects a drafting oversight. Its purpose is to change the level of parliamentary scrutiny—from negative procedure to no parliamentary procedure— applicable to the delegated powers concerning various aspects of the operation of NHS foundation trusts, so as to make them largely consistent with similar provisions relating to NHS trusts under the NHS and Community Care Act 1990.

The Delegated Powers and Regulatory Reform Committee considered the amendment and found the change in the level of scrutiny to be appropriate. There was nothing in regard to the amendment to which the committee wished to draw the attention of the House. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 476 and 477 not moved.]

Clause 191, as amended, agreed to.

Clause 192 agreed to.

Schedule 14 [Repeals and revocations]:

[Amendment No. 477ZA not moved.]

Lord Warner moved Amendments Nos. 477ZB to 477ZE: Page 169, line 24, column 2, leave out "and (j)" and insert ", (j) and (k) Page 170, line 32, column 2, at end insert— In Schedule 7A, in paragraph 3(1)(g), the words from "or under" to "this Act". Page 170. line 40, column 2, leave out "paragraphs 6 and 7" and insert "paragraph 6 Page 171, column 2, leave out line 42.

On Question, amendments agreed to.

Schedule 14, as amended, agreed to.

Clause 193 agreed to.

Clause 194 [Commencement]:

Lord Warner moved Amendment No. 477A: Page 106, line 10, after "115," insert "section 143 and

The noble Lord said: This is a technical amendment that corrects an error. It simply provides that the power to commence the minor and consequential amendments provided for by Clause 143 and Schedule 9 is exercisable by the Secretary of State, with respect to England, and by the National Assembly for Wales, with respect to Wales. I beg to move.

On Question, amendment agreed to.

Clause 194, as amended, agreed to.

Clause 195 agreed to.

Clause 196 [Supplementary and consequential provision]:

Earl Howe moved Amendment No. 478: Page 107, line 9, at end insert— () No order may be made under this section unless a draft of the order has been laid before and approved by both Houses of Parliament.

The noble Earl said: By any measure, the provisions in Clause 196 are out of the ordinary. They enable ministers to make such supplementary incidental or consequential provisions as is thought appropriate to give effect to the Bill. That includes in subsection (3) a power to modify any Act, including an Act of the Scottish Parliament or subordinate legislation. It is understood that that includes repeals.

The Select Committee on Delegated Powers and Regulatory Reform commented that it is not persuaded by the department's explanation of why the negative rather than the affirmative procedure should apply here. It recommends that the affirmative procedure should apply for those orders that amend Acts. I hope that the Minister will sympathetically consider my amendment in the light of that. As the Select Committee noted, this is a wide-ranging Bill. The scope for amending it and any of its subject areas under the powers set out in the clause is enormous. I suggest to the Minister that the Government abandon the negative procedure not just for subsection (3) but for the clause as a whole. I beg to move.

Lord Warner

There may be a misunderstanding. In response to the recommendations of the Delegated Powers and Regulatory Reform Committee, we tabled government Amendment No. 474A, which we debated—it seems only yesterday but it was actually early on Tuesday morning. That will have the effect of making any order or regulation that amends or repeals any part of the text of an Act of Parliament subject to the affirmative procedure. So we have already responded in part to Amendment No. 478, in that any consequential provision that amends part of the text of an Act would be debated in both Houses.

However, Amendment No. 478 goes further and would require all orders to make consequential provision—whether or not they amend Acts—to be subject to the affirmative procedure. In future, we may need to amend references to certain bodies referred to in regulations—for example, where the functions of the National Care Standards Commission are being taken over by CSCI. In those circumstances, we will need to change references in secondary legislation by order. Such an order would not amend primary legislation and it would go beyond the scope of the recommendation of the Delegated Powers and Regulatory Reform Committee for it to be subject to the affirmative procedure.

Earl Howe

I am grateful to the Minister for drawing my attention to government Amendment No. 474A, to which I should have paid closer attention when he spoke to it on Tuesday morning. Clearly, I shall read what he said then. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 196 agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with amendments.