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Lord Renton: My Lords, during the hearing of this case, was the attention of the Court of Human Rights drawn to the law in this country and the sentencing

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practices that have arisen under it? And was the court told of the likely effect in this country of the decision that it reached?

Lord Mackay of Drumadoon: My Lords, my understanding is that the court was fully informed as to the law in this country and the procedure that has been followed in such cases for many years. I am sure that the noble Lord is aware that detention during Her Majesty's pleasure was introduced as long ago as 1908. The procedure followed since then has been to sentence young offenders to be detained without any limit being specified to the time of the detention. Subsequently, at an appropriate juncture, the issue of when they fall to be released is considered by the Parole Board.

The Government were represented before the court by David Pannick, QC. I have copies of both judgments before me this afternoon. Having read them, and from the advice I have received, I am quite satisfied that the court had placed before it not only the law but the implication that a change to the law would be required were the decision to go against the Government, as in each case it did.

Lord McIntosh of Haringey: My Lords, the Minister has given answers that are both factual and helpful, but has he not considered the possibility that the judgment may apply not only to those who are detained at Her Majesty's pleasure but also to those whose tariffs may be affected by the Home Secretary? In other words, the issue may be wider than previously supposed, and the involvement of the Home Secretary--a politician--in sentencing may not be at risk. Have the Government considered that possibility?

Lord Mackay of Drumadoon: My Lords, the Government have given consideration to that possibility. The advice that the Government have is that the decision does not affect the power of the Home Secretary to impose a tariff in cases of this nature in England and Wales.

Lord Harmar-Nicholls: My Lords, the Minister did not appear to answer the question put by my noble friend Lord Boyd-Carpenter. My noble friend asked whether we had to change the law to fit in with this ruling or could refuse to do it. Are we, under treaty, obligated to alter our law to fit in with the court, or can we leave it as it is if we wish?

Lord Mackay of Drumadoon: My Lords, I believe that the attitude of the Government to the decisions of the European Court of Human Rights is well known. On occasions its judgments are not welcomed or agreed with, but because the Government believe in the rule of law those judgments are respected. That is what is to happen in this case. The effect of the judgment will be respected, and as soon as practicable my right honourable friend the Home Secretary will bring forward proposals to amend the law in England and Wales.

Lord Callaghan of Cardiff: My Lords, is the Minister aware that to those of us who remember the hard work put in by the noble Viscount, Lord Eccles,

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and Sir David Maxwell Fyfe (as he then was) towards bringing in the Convention on Human Rights in Strasbourg and securing its adoption by other European countries, this decision sounds a very sensible one?

Lord Mackay of Drumadoon: My Lords, I am fully aware that the British Government and senior Government Ministers at that time did a great deal of work in setting up the convention. As is well known to noble Lords, the Government have no quarrel with the terms of the European convention itself.

The problems that have arisen over the years, and particular recent ones, have related to the decisions of the court. Because of that, my right honourable friend the Prime Minister announced in another place early in December that steps were being taken to discuss with members of the Council of Europe, and members and officials of the court, whether or not anything could be done to improve the court's procedures so that its decisions commanded greater and wider public respect than unfortunately has been the case in recent months. While the convention is clearly important and falls to be respected, and some noble Lords may welcome the decisions in these two cases, the issue whether or not the Government welcome it is neither here nor there. The Government respect the judgments and will act accordingly.

Lord Mackie of Benshie: My Lords, is the Minister able to tell us what the position is in Scotland?

Lord Mackay of Drumadoon: My Lords, not surprisingly the position in Scotland has been considered by the Lord Advocate since it was suggested that he might answer this Question! Having given the matter the briefest of consideration, although not having had the opportunity to discuss it with my right honourable friend the Secretary of State for Scotland, I have little doubt that consideration will have to be given to amending the law of Scotland as well. In Scotland, no tariffs are set for young people who are detained at Her Majesty's pleasure. Therefore, two issues will have to be looked at in Scotland: the setting of a tariff and a procedure to deal with the release of such prisoners once the tariff has expired.

Lord Stoddart of Swindon: My Lords, is one to understand from the answers given by the noble Lord this afternoon that the Government now believe that the public interest is best decided by the European Court of Human Rights rather than by the elected government of this country?

Lord Mackay of Drumadoon: My Lords, the noble Lord is wrong to jump to that conclusion, as I suspect many Members of the House will readily appreciate. The issue comes down to the basic question of whether or not we respect the judgments of the court and act in accordance with them. Those who are bound by the rule of law occasionally have to follow decisions of courts with which they do not agree. That is what the rule of law is all about. Procedures are set up to adjudicate on cases. When the court rules accordingly, those bound by the decision have to take it into account. That applies

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to individual members of society as well as to this Government, of which I am a Member. The Government do not suggest for one moment that the European Court is the place to decide these issues in preference to Parliament, but when an issue arises they have to consider it. It is then for Parliament to decide what new procedures are put in place.

Lord Brabazon of Tara: My Lords, my noble and learned friend said that legislation would have to be introduced to change the law of this country to bring the judgment into effect. What happens if both Houses of Parliament unceremoniously throw out such legislation?

Lord Mackay of Drumadoon: My Lords, as a new Member of your Lordships' House I find it difficult to answer any question. I find it impossible to answer hypothetical questions, and I decline to do so.

Business

3.24 p.m.

Lord Strathclyde: My Lords, at a convenient moment after 4.15 p.m., my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is to be made in another place on Northern Ireland.

I should also like to say a word about today's debate standing in the name of the noble Lord, Lord Winston. Other than the mover, Front Bench spokesmen and the Minister replying, speakers will be limited to 10 minutes. I should remind your Lordships that if any noble Lord speaks at greater length he will do so at the expense of subsequent speakers in the debate. I also remind your Lordships that when the digital clock shows 10 minutes the full 10 minutes have elapsed and the speaker will already be trespassing on the time of others.

Business of the House: Debates, Friday, 8th March

The Lord Privy Seal (Viscount Cranborne): My Lords, I beg to move the first Motion standing in my name on the Order Paper.

Moved, That Standing Order 38 (Arrangement of the Order Paper) be dispensed with on Friday, 8th March to enable the Motion standing in the name of the Earl Howe to be taken before the Second Reading of the Defamation Bill [H.L.].--(Viscount Cranborne.)

On Question, Motion agreed to.

Business of the House: Debate this Day

Viscount Cranborne: My Lords, I beg to move the second Motion standing in my name on the Order Paper.

Moved, That the debate on the Motion in the name of the Lord Winston set down for today shall be limited to four hours.--(Viscount Cranborne.)

On Question, Motion agreed to.

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Housing Grants, Construction and Regeneration Bill [H.L.]

The Minister of State, Department of the Environment (Earl Ferrers): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That it be an instruction to the Committee of the Whole House to whom the Housing Grants, Construction and Regeneration Bill [H.L.] has been committed that they consider the Bill in the following order:

Clauses 1 to 100, Schedule 1, Clauses 101 to 121, Schedule 2, Clauses 122 to 145, Schedule 3.--(Earl Ferrers.)

On Question, Motion agreed to.

National Health Service

3.27 p.m.

Lord Winston rose to call attention to the level of concern among health service staff about current developments in the National Health Service, and the potential effects upon patients; and to move for Papers.

The noble Lord said: My Lords, first I do not intend to indulge in political invective. In particular, no disrespect is intended to the noble Baroness, Lady Cumberlege. This is not personal. She is honourable and her reputation is high because she appears to listen and clearly cares about the health service. She is highly respected by many of my colleagues throughout the country, but sadly her attitude does not entirely reflect the damage that I feel has been done to the National Health Service over 16 years of this Government. I do not blame her.

Secondly, I do not want to indulge in the politics of invective or hysteria. That is something which occurs in another place. I speak simply from the coal face. I do not come here with a political motive. I do not believe that the National Health Service should be a political football. This House is respected for its reasoned argument and consideration of the facts. I have no desire to be vexatious. However, it is difficult for me not to use strong language for what many of us feel is the disgraceful mismanagement of the National Health Service, for which this Government have been largely responsible. I ask the House to forgive me if I speak with some emotion. These are very emotional matters.

I shall not introduce all the things that are wrong in the National Health Service. Other speakers will deal later with, for example, nursing staff, who, quite rightly, are regarded as the backbone of the health service; general practitioners; primary care and care in the community. I intend to deal mainly with the latest, most important and significant reform; namely, the National Health Service internal market.

The principle is simple enough. Noble Lords will forgive me if I explain what may be well known to some of your Lordships. I do so because many members of

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the public do not understand the internal market. Indeed, one might add that because the far-reaching changes were thrust without proper consultation upon the National Health Service itself, many people working in the National Health Service, including doctors, do not fully understand them either. I do so because this issue will undoubtedly become one of the most important electoral issues in any forthcoming General Election. Inevitably, too, I have to say, the press will be listening and it is important that what is happening in our health service should be explained to them. In my clinic, I find that very few patients indeed, even those with high qualifications and university degrees, understand the implications to them of the reforms of the health service. This is not a political point. Any hospital consultant can confirm it, unless he is extremely partisan.

Among other things, the reform means that purchasing health authorities, responsible for providing care to their local populations, are given a sum of money to buy medical treatment to meet their catchment area's needs. Providers, which in my case means most hospital based medicine, are the NHS Trust Hospitals. They compete with each other to tender the best contracts for medical services to the purchasing authorities, who then decide on the basis of various criteria whether they will agree to contract for those services.

It would be entirely foolish to say that there are not signal advantages to that system. Indeed, the Government repeatedly take credit for the improvements. The internal market has resulted in many hospitals improving outpatient facilities, improving comfort for patients, improving waiting times in clinics and in some cases improving waiting lists. There is no doubt that that has happened. It has resulted because hospitals are more assiduous and give better information to patients, and because any hospital not making those simple improvements would be likely to lose its contracts and hence its essential funding.

However, I and many of my colleagues feel that the internal market was largely an attempt to mask underfunding and to ration healthcare locally. It has so many adverse facets, as it was envisaged, that it now stands as a monument to government deafness, bureaucratic inefficiency and incompetence. What are its effects? Let me examine some of them.

First, this is the Government of choice. Yet we see a loss of patient choice. It was no idle boast in the old health service that any patient could be referred to the most expert person involved in managing his or her condition. That was one of the star qualities of the National Health Service. It was much envied all over the world, including in the United States of America. For example, in the 1970s and 1980s in my unit at Hammersmith I saw patients for complex surgery from Truro, Inverness, Belfast and all over the United Kingdom. What did that mean? It meant that we grew in expertise and were able to give an unparalleled service. We could provide medical improvements in that particular condition which were copied all over the world. Indeed, post-graduate students came from over 80 countries to study there during that period of time.

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What has happened since then? No longer do we get those patients. Now they go for that treatment to their local health authorities. Nobody wants to purchase that treatment because of the competing demands made locally and the need for contracts. It now means that instead of doing 12 or 18 of those operations a week, sometimes in a good week--when beds are available of course--we might do only three to six such operations.

Let me give another example about freedom of choice. Perhaps noble Lords will excuse me if I mention my mother. Her problem took much of my time this week on the telephone. She is a brittle diabetic, very sensitive to insulin. She responds very rapidly to overdoses and underdoses of that drug. She has been cared for at Hammersmith Hospital for 15 years. During that time, she has attended in acute diabetic coma many other hospitals: University College Hospital, the Middlesex Hospital, the Royal Free Hospital and other hospitals in London; and, when she did community work outside this country, hospitals in The Hague, South Africa and so on. She has been to more hospitals than I certainly have. Invariably, after those comas, she came back to Hammersmith because she needed stabilisation. Like many older people with diabetes, bits stop working. Consequently, from time to time she has been to see the urologist at Hammersmith Hospital, the gynaecologist at Hammersmith Hospital, the chest physician at Hammersmith Hospital, renal people at Hammersmith Hospital, the vascular people at Hammersmith Hospital and the orthopaedic people at Hammersmith Hospital.

What happened last week? Despite a bad cold she went to Buckingham Palace to receive an honour for her longstanding public service. It was a cold day and she developed a worsening chest infection. My sister tried to arrange an urgent chest appointment for her to be seen by the Hammersmith Hospital chest physician, whom she knows very well and who knows her. However, because she had not attended that particular part of Hammersmith Hospital for the past two years, where, of course, her notes were, she was refused an appointment; they needed a referral letter from her general practitioner. That was not done on clinical grounds but simply because it was the required form. On the other hand, a general practitioner refused to give her that referral because he was contracting with another providing authority.

That bureaucratic muddle resulted in delay in her being seen in the proper chest clinic. The matter has been resolved because nature intervened and her chest got better despite treatment, as so often happens in medical practice. But many hundreds of thousands of older people in this country do not have somebody who can clout for them and go in there and bat for them.

Secondly, the internal market has meant competition, not co-operation, between doctors. It has meant that many hospitals now compete to try to give the same medical services. I give noble Lords one trivial example from my own area, but it is one that shows very clearly the potential wastage of National Health Service resources. Chelsea & Westminster Hospital has recently set up an IVF clinic. Indeed, it was in the news recently. It was prepared, it said, to try to undercut any of the other National Health Service hospitals in its area

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and would try to provide a cut-price service on St. Valentine's day and indeed advertised that. Just down the road is Hammersmith Hospital, which has the most expert NHS IVF service in the country, probably in Europe, and is offering that treatment at some 15 per cent. to 20 per cent. less than the cost in the Chelsea & Westminster Hospital. Moreover, Hammersmith Hospital has a huge number of patients, so it is extremely efficient, with a very short waiting list of less than three months, thanks in part, admittedly, to the Government's waiting list initiative.

These are not bad doctors but they have been corrupted by the system in which they work. This week, a patient who had been referred to me by her general practitioner, in error telephoned the Chelsea & Westminster Hospital. Over the telephone, without investigation and without assessment it said that it would offer her treatment which would undercut the Hammersmith Hospital's IVF unit. That would have been in a unit which cannot offer the specialised service and the degree of skill that we can offer because of our huge expertise and large scientific background. What will happen if that practice continues? It will mean that Hammersmith will inevitably lose patients and will have to put up its prices, again increasing the costs to the health service. It means loss of research to an alpha-rated department and probably lowered IVF success rates. Also, because it has not costed its operation properly, it will probably mean that after two years' wastage of money the Chelsea & Westminster Hospital will have to close that unit.

We have a burgeoning administration in the health service. Other noble Lords will speak of that. But one of the things the Government did was introduce a massive administration without the proper information technology. The Secretary of State now wants to decrease the managers by 8 per cent. and to do so, of course, would bring further chaos. In the absence of information technology, they cannot know what the cost of the market is. In fact this is not a market; it is a lottery. There is no serious audit; there is no professional basis for making judgments about buying on behalf of purchasers.

Let me draw your Lordships' attention to a letter I recently received from Professor Jacobs, who is a particularly distinguished professor of endocrinology and Britain's leading reproductive endocrinologist. He says,


    "At present, patients see me either because they are part of a block contract, because they're referred by GP fundholders or because they are extracontractual referrals. The cost of these referrals varies according to type. The number of GPs becoming fundholders is steadily increasing and there is expected to be a new tranche of fundholders on 1st April. Of course, as new contracts are forged, so the number of people who come to us as ECRs varies. It turns out that if a patient is being seen as part of an overperforming block contract and that patient comes from a practice that has become a GP fundholder, by definition the swap from the overperforming block contract to GP fundholding increases the income to the institution. If, on the other hand, the patient was an ECR but now the patient's doctor becomes a fundholder, the institution will almost certainly lose. If the ECR patient does not have many re-attendances, there is no gain to the institution by the patient becoming that of a fundholder, but if the patient has a high

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    rate of re-attendance (clearly a chronic and severe disease) then the institution gains because fundholders are requested, at least by this institution, to pay per attendance".


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