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Baroness Gardner of Parkes: I find this a strange amendment. For 20 years I have sat on an industrial tribunal. If one has rights, under employment legislation those rights continue. Therefore, in that respect the amendment should not be necessary.

As regards the aspect of confidentiality, to which the noble Lord, Lord Carter, referred, I understand that this relates to people transferring from one employment to another. It is possible that one might negotiate terms which include a confidentiality clause. That is not an unusual clause. It occurs frequently in ordinary business.

I agree with the noble Lord that people should not feel inhibited about whistle blowing. It is right that people should draw attention to problems. I recall a case many years ago of an elderly patient being brutalised by one nurse in the hospital. It was extremely important that someone drew that fact at the time to the attention of the health authority, otherwise we would not have known about it. The person using that brutality said, "No, this old lady fell". Therefore I appreciate that such cases exist. However, I am not sure how I regard the amendment.

The noble Lord, Lord Carter, implied that there was something sinister or mysterious in a sum of money being paid over the day before the industrial tribunal hearing. In the employment field that is common. Indeed, papers are no longer sent out in advance of a hearing. The tribunal members pick them up on the morning of the hearing because a large number of cases are settled. It would waste members' time to read those cases because they never come before the tribunal. I do not believe that there is anything sinister in that point.

The loss of Crown immunity means that all bodies in the health service now have to be very careful. Although litigation is necessary, unfortunately, that awareness has crept into all areas of the health service and in general. Everyone is aware of litigation. They have to be very careful. No one wishes something said that would bring a legal case against him which was not justified. He would wish to have the opportunity for the whistle blowers (to use the noble Lord's expression) to bring the case forward to be investigated thoroughly rather than to have a sensational piece in the press which might or might not be accurate and might lead to a major legal case. I find the amendment unusual, but I believe unnecessary.

Baroness Cumberlege: I am grateful to my noble friend for putting the position on record with such clarity and accuracy. She is quite correct that staff who are transferred to a special health authority or NHS trust will retain exactly the same rights to speak openly as they enjoyed previously. There will be no reduction in the right of health authorities to represent publicly the needs of their population.

The regional offices will have a different role from that of RHAs. The new health authorities will be the operators in the new system. They will be taking the decisions which will directly affect local people.

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The regional offices will contribute to the development of central policies for the NHS, monitor the health authorities and trusts in their areas and intervene managerially where necessary. These are responsibilities appropriate to the Civil Service and it is therefore right that regional office staff should be civil servants. Clearly this change of status reduces the rights of regional office staff to "speak out", but it gives them more effective influence on central policies. As civil servants, they will have enhanced opportunities to shape central policy making by offering advice to Ministers.

The Government issued to NHS employers in June 1993 guidance for staff on relations with the public and the media. That document sets out the rights and responsibilities of all staff when raising issues of concern about healthcare matters. NHS staff have a right and duty to raise with their employer concerns about health service issues. In no circumstances are employees who express their concerns in accordance with the guidance to be penalised. I am concerned by some of the examples that the noble Lord raised.

NHS employers are required to introduce procedures for handling of staff concerns after consultation with local staff and should promote a climate of openness and dialogue within the NHS so that staff concerns can be dealt with properly and effectively. I believe that the situation is quite clear. We tackled the issue in June 1993. I hope that the noble Lord will withdraw his amendment.

Lord Carter: I am not surprised by the response from the Minister. The noble Baroness, Lady Gardner of Parkes, gave the game away when she referred to the industrial tribunal. Those tribunals deal with employment rights. The amendment deals with what I have described as the "gagging" clauses. The noble Baroness referred to "ordinary business" and business confidentiality. We are not referring to factories or shops. We refer to hospitals, clinics, doctors and nurses. It is interesting that the Minister did not deal with any of the examples I gave regarding public health directors and trust hospitals.

Baroness Cumberlege: Perhaps the noble Lord will give way. I dealt with that point. It is the regional directors of public health who will join the regional offices. As I said, quite rightly they become civil servants. The directors of public health at health authority level will have the opportunity to join the faculty, to speak out and to do things that they have done in the past, subject to their contract.

Lord Carter: That is the whole point. The regional directors have to advise the Executive; they will not be able to become office holders in the faculty of public health medicine. That is the point I make.

Baroness Cumberlege: Does the noble Lord agree that one would not expect civil servants to speak out?

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Lord Carter: I would expect public health directors to speak out about public health.

Baroness Cumberlege: At health authority level, they would be able to do so.

Lord Carter: We shall not agree; we are not talking the same language. That is why there is a difference between the two sides of the Committee. Civil servants give advice to Ministers. That advice is never published. We never know whether Ministers take it. We do not know the quality of that advice. We do not know whether Ministers are warned of the problems.

I gave a few examples of various cases—the Minister did not deal with them in her reply—which we know exist. This is a taxpayer's service. It is paid for by the taxpayer. The information should be made available. It should be a duty on employers in the health service to bring these matters to the attention of the public and to give their professional opinion about their concerns regarding the health of the public. The Government see the health service as a business. We heard such words as "customers" rather than patients. There was reference to "ordinary business", "commercial confidentiality". That is what is happening to the health service. That is why the gagging clauses have been introduced. We know that they exist. When we form the Government we shall end them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 34:

Page 43, line 43, after ("duties") insert ("(including full recognition of the appropriate trade unions)").

The noble Lord said: I have a feeling that I may receive the same answer to this amendment as to Amendment No. 33. The amendment proposes,

    "including full recognition of the appropriate trade unions".

We know that the Government feel the same way about trade unions as they do about the health service.

The amendment provides for the continuation of full recognition of appropriate trade unions for staff transferred to National Health Service Executive offices. I expect the Minister to say that those members of staff will be able to retain their personal membership of trade unions. Even under this Government that is possible. We welcome that.

I understand that in another place the Minister and the Under-Secretary have talked separately about accepting the TUPE regulations about pensions. It has been pointed out that the functions of the regional organisations are different from those of the regional health authorities. That point was made on the previous amendment by the Minister. We believe that there is good reason to ensure that the trade unions, UNISON, the RCN and the BMA, all of which have members at regional health authority level, should be fully recognised when the staff transfer to new NHSE offices. We shall deal with the TUPE provisions later. They are meant to protect union recognition. I hope that the Minister will confirm that the recognition will be protected and that she will accept the amendment.

The RCN and the BMA are not affiliated to any political party. They are certainly not affiliated to the Labour Party. Of course, we know that UNISON is. This

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is not a Labour Party amendment; it is an attempt to ensure that the proper rights of members of trade unions are protected when the changes envisaged under the Bill take place. The amendment asks for the full recognition of appropriate trade unions. I beg to move.

Lord Stoddart of Swindon: I support the amendment. I declare an interest as a consultant to UNISON.

I shall be brief because my noble friend has put the relevant points. However, I wish to emphasise that trade unions are, I think rightly, suspicious of government intentions towards them. We have seen many instances where trade unions have been pushed aside, not consulted when they should be, and given the impression by government that they have no real part in the industries or services in which they are employed. Where such a reorganisation comes about, it is bound to engender in the breasts of trade unionists that it may be another opportunity for the Government to remove some of the rights which they have hitherto enjoyed.

The noble Baroness may tell me and members of trade unions that their fears are quite unwarranted. I hope that she will. If so, I feel quite sure that the Government will not mind strengthening their assurances by agreeing to the amendment. I hope that they will do so.

5.30 p.m.

Baroness Miller of Hendon: I must tell the noble Lord, Lord Carter, that the Government have the highest regard for the National Health Service and we have the greatest respect for the trade union movement. I hope that the noble Lord, Lord Stoddart, is pleased to hear that.

I understand the anxieties of both noble Lords, but the amendment is not consistent with general employment legislation, which does not impose a statutory obligation on employers to recognise unions. More important, it is also unnecessary. Where transfers of staff take place from the district health authority, family health service authority and regional health authority to a new health authority, the same unions will be involved on either side of the transfer.

The amendment is clearly aimed at the transfer of staff from the National Health Service to the Department of Health. The noble Lord, Lord Carter, may be worried about staff moving into the Civil Service, but I can assure him that the department is committed to consulting the recognised Civil Service trade unions. There is a well-established consultation machinery in place which is capable of representing the transferring staff. In addition, certain National Health Service unions are affiliated to political parties, and by convention government departments may not recognise such affiliated organisations.

The transferring employees will have the opportunity to transfer to Civil Service unions when they become civil servants and to have their views represented through the existing consultative arrangements. I hope

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that I have managed to reassure the noble Lord, Lord Carter, and that he will realise that the amendment is not necessary and will withdraw it.

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