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Lord Simon of Glaisdale: My Lords, I am very disappointed that the noble Baroness did not add her name to this amendment. It was obvious from her speech in Committee that her brief on Report would end with the word "reject". I encouraged her to follow the example of the noble Earl, Lord Ferrers, when he was faced with that situation. He solemnly read out the negative brief and finally, in obedience to common sense, accepted the amendment. The noble Baroness could not go quite that far, but she did depart from what I surmised was at the end of her brief to say that she would consider the matter. I am sorry that the consideration has not led to support for the amendment of my noble and learned friend.

It was obvious from the reply of the noble Baroness at Report stage that parliamentary counsel and other advisers had a point. Naturally they want to close every possible loophole. But the point was an extremely subtle, remote and exiguous one. It is the sort of case where a Minister is fully entitled to override the advice

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that is tendered. I am extremely sorry that we are to foist on the ordinary people to whom this provision is addressed a farrago of incomprehensibility.

Lord Renton: My Lords, for the first time--and possibly for the last time--perhaps I can come to the rescue of the noble Baroness. She may have decided not to add her name to the amendment so that the credit for it could go to the noble and learned Lord, Lord Brightman.

Baroness Anelay of St. Johns: My Lords, I thank the noble and learned Lord, Lord Brightman, for his courtesy in writing to me on this amendment as he did at the last stage in relation to the amendments he tabled then. There are some issues upon which all sides of your Lordships' House can unite. The need to frame legislation in plain English has proved to be just such an issue.

We on these Benches made it clear at every stage of the Bill that we welcome efforts to improve the clarity and intelligibility of the Bill, with two provisos: first, that the amendment should not undermine the policy intention behind Clause 1(6); and, secondly, that amendments which seek to achieve clarification should not unwittingly create the loopholes which give lawyers the opportunity to while away fruitful hours--fruitful to them, that is--arguing different constructions of a clause.

As the noble and learned Lord, Lord Brightman, said, this is the third time upon which he has sought to help this House by amending Clause 1(6) so that it has greater clarity and yet still preserves the policy intention which underlies it. At Report we on these Benches supported the amendment which the noble and learned Lord tabled at that stage. I argued that he had successfully overcome the objections which the Minister had raised previously at Committee stage to the amendment he tabled then. But, since Report, I have had the opportunity to read carefully in Hansard the reasons put forward by the Minister for rejecting the amendment. At col. 1653 she pointed out that the amendment in a sense required precognition of the Secretary of State's opinion. She said:


    "The amendment sets out to identify the class of agreements to which subsection (6) is to apply by reference to the conditions in subsection (3) [and that] on close examination of the conditions, the exercise turns out to be very difficult, because it is necessary first to determine the attitude of the Secretary of State to the particular agreement. Paragraph (a) of subsection (3) requires that: 'in his [the Secretary of State's] opinion the purpose or main purpose of the agreement is the provision of facilities in connection with the discharge by the trust of any of its functions'".--[Official Report, 26/6/97; col. 1653].

I recognise that the Minister made a valid point on that occasion. The history of the discussions on the noble Lord's amendment has been one of the pursuit of that elusive creature--the simple but effective clause. I believe that the noble and learned Lord's persistence in pursuit of that elusive creature has brought him and thereby all of us in this House success in that the Minister has given assistance in this matter and shown that she is receptive to the amendment tabled today.

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The amendment overcomes all the objections raised by the Minister at Report stage. However, I hope that in general terms this will not be the end of our concerns for the pursuit of plain English. Last week I made the mistake of referring to my aversion to the complexities of Latin syntax. I say a mistake because, after that Report stage, a wag on my own Benches presented me with his own version of a Latin quote which he expected me to translate and scan. With that in mind I would say today that I hope that our efforts to improve the clarity of this Bill will be seen as a terminus a quo rather than a terminus ad quem--I risk being followed up on that later.

At Report stage the noble and learned Lord, Lord Simon of Glaisdale, reminded us that we have no right,


    "to legislate in a manner that is incomprehensible to the people to whom the legislation is addressed",
and that it behoves us all, including parliamentary counsel, to show a little humility.

I appreciate the fact that the Minister was receptive at that stage to the advice of the noble and learned Lord, Lord Simon, and to the efforts of the noble and learned Lord, Lord Brightman, to improve the drafting of Clause 1(6). I hope that the Minister is able to confirm today that she can accept the amendment. We on these Benches support it.

3.45 p.m.

Lord Hooson: My Lords, from these Benches it is our hope and I am sure the hope of all noble Lords that the noble Lord, Lord Renton, from his chivalrous position on his white charger, will be proven to be correct; that is, that the noble Baroness did not put her name to the amendment because she wished to give credit for it to the noble and learned Lord, Lord Brightman.

Baroness Jay of Paddington: My Lords, I am sure that I speak on behalf of the whole House--I am tempted to say on behalf of all democrats or at least all legislators--when I say how grateful we are to the noble and learned Lord, Lord Brightman, for what he has done in the course of our animated discussions on this subject. I am grateful to all noble Lords who have taken part this afternoon in continuing this discussion, particularly the noble Lord, Lord Renton, for what the noble Lord, Lord Hooson, rightly described as his accurate chivalry.

Since we debated this matter at Report the noble and learned Lord, Lord Brightman, has been extremely courteous in discussing his concerns with me, the parliamentary draftsman and counsel and with officials from my department. The amendment before us today sets out in the most plain and simple language what is a relatively straightforward notion: that is, that an agreement which has not been certified is unaffected by the Bill; it is left to stand or fall on its own merits.

Of course, those are my words and not the words of the Bill or the amendment. As we discovered in the course of our discussions both in Committee and at Report, those words alone would not suffice because they are too imprecise and open to legal

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misunderstanding. That is the essence of the problem we have faced in trying, all of us, to improve the wording of the Bill; there is always a danger that we may sacrifice precision on the famous altar of simplicity.

However, today we have before us an amendment which strikes a satisfactory balance, meeting the objectives of precision but translating the words into a form which may be more readily understood by all concerned. Your Lordships will see at a glance that the wording could not be more straightforward or transparent. As such it has achieved one side of the balance: it is obviously simple. But is it precise? The answer, I am advised by all of my advisers, both legal and in terms of the officials drafting the original Bill, is that it is precise enough.

The only direct consequence of accepting the amendment is that Clause 1(6) will refer to all agreements entered into by trusts and not just those which have been EFDAs--externally financed development agreements--if they had been certified. The subsection now makes clear that no agreement by an NHS trust, not even those which are patently not PFI deals, is invalidated simply because it does not have a certificate. This enlargement of the coverage of subsection (6) does not materially affect the Bill in any way. It is a very small price to pay for the clarity it brings. Importantly, banks waiting to lend into the lending schemes have confirmed that they are content with the change and the British Bankers' Association has also signalled its agreement.

Given your Lordships' enthusiastic support for the noble and learned Lord's proposal to simplify the Bill and indeed to simplify legislation in general, and in recognition of the fact that we have now before us both clarity and precision, I invite your Lordships to agree that amended Clause 1(6) should stand part of the Bill.

On Question, amendment agreed to.

3.52 p.m.

Baroness Jay of Paddington: My Lords, I beg to move that the Bill do now pass. This is an important if rather simple piece of legislation. The National Health Service is very much in need of new hospitals and the private finance initiative offers in many cases the best ways of providing them, the way that we feel offers the best value for money.

However, the banks which are ready to lend into the leading schemes have been concerned that NHS trusts might not have the legal power to enter into private finance contracts. For that reason, they have been reluctant to sign on the dotted line, and this has left us until now with many potential schemes but not a single major hospital actually built. I am glad to be able to tell the House this afternoon that the passage of the Bill through your Lordships' House in conjunction with the review of the private finance initiative schemes conducted by my honourable friend the Minister for Health in another place has already borne fruit.

The Department of Health has announced today that 14 major acute schemes have been selected for development, representing almost £1.3 billion of new capital investment in the NHS. The contracts for the

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hospitals at Gravesham and at Norwich which we have all awaited for so long have now been signed. The details of the announcement and the prioritisation review are being placed in the Library in response to a Written Question. With your Lordships' permission, I shall outline the Answer to the House as I feel it is clearly appropriate to do so as the Bill will be passing from this House to another place, we hope this afternoon.

The review--that is the prioritisation review--was undertaken by officials and all schemes were graded according to three criteria: (i) their service need; (ii) status--how far and well negotiations have progressed; and (iii) "PFI-ability"--how well the scheme fits with the PFI process and hence its likelihood of delivering a successful outcome.

This process was both fair and open. Officials from the department shared with the trusts the criteria against which the projects were judged and their relative markings. My honourable friend Mr. Milburn, the Minister of Health in another place, and the Secretary of State for Health as far as the schemes in the Northern and Yorkshire region are concerned examined the gradings and the reasons why officials recommended schemes either to be included or excluded. They also received representations from many local bodies and from many Members of Parliament.

The 14 schemes which most successfully met the three criteria will be asked to continue with their PFI proposals, with the objective of reaching an early and acceptable financial close over the next 18 months. A complete table listing of all the scores, along with a note explaining the criteria, has been placed in the Library. Officials have been instructed to prepare programmes and milestones for every successful scheme. The schemes will be subject to the normal rigorous approval processes and any of the 14 schemes that subsequently fail to deliver on time or price will be cancelled.

Those schemes not selected will be asked to cease any further action on their contract. They should stand down their partners if they have selected one and cancel all tendering procedures.

Any trust or consortium whose scheme has not met the three criteria and which wishes to make representations to the Secretary of State should do so within the next 10 days. Otherwise such trusts should now take steps to stand down their partners or cancel the tendering procedure.

Those schemes not selected will be eligible for consideration as part of a national capital prioritisation scheme exercised by the NHS Executive's Capital Prioritisation Advisory Group. This group will review major acute schemes for health service need and will recommend those which should go forward either as part of the next tranche of PFI schemes which we plan to announce next spring or for funding from the public sector capital that is available.

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The exercise did not consider the schemes affected by the London review, which is due to report in the autumn. These schemes are also listed in papers deposited in the Library.

The longer-term review of the PFI product and process will report its recommendations later this year. This will look to consolidate the improvements in the PFI begun with this new exercise.

As I said earlier, 14 schemes will go ahead immediately and two contracts have been signed. That was the object of the Bill before us. The Bill identified a specific issue--of blocking progress--which urgently needed resolving. It addresses that issue briefly, simply and effectively.

Moved, That the Bill do now pass.--(Baroness Jay of Paddington.)


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