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Lord Lucas moved Amendment No. 169:

Page 22, line 31, at end insert--
("( ) The Secretary of State shall publish within seven days details of any payments made under subsections (4) and (5) above.").

The noble Lord said: In moving to move Amendment No. 169 I shall speak at the same time to Amendment No. 179. My main interest is to hear the Minister's explanation of the Government's view of publishing this sort of information in the way my amendment suggests. I am not clear from what was said in relation to a previous amendment whether the names of those who default under the current voluntary scheme are made public. If they are not, I would be interested to know why. Thinking of the future, it would be thoroughly desirable if the Government's decisions under these two clauses were published. I beg to move.

Baroness Hayman: Clause 28, to which Amendment No. 169 is directed, among other things provides for the repayment of unreasonable profits made from the sale of medicines to the NHS or extra income derived from those sales gained by a price increase not agreed by the Secretary of State. It is the basis of a statutory scheme which is to operate when suppliers and manufacturers are not covered by a voluntary scheme.

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The amendment seeks to make details of payments under a statutory scheme public within seven days of their receipt. I agree that the effects of a statutory scheme are of genuine interest to many parties, but I can see absolutely no point in requiring the information to be made available piecemeal and at high speed in the way that the amendment proposes. I can think of no precedent for such a requirement, and also there is the need to respect the commercial confidentiality of suppliers and manufacturers. This is an important principle and the amendment could result in its breach. We shall be making available aggregated details of the operation of both the voluntary schemes, including repayment, but we do not think it is appropriate to have to do that within seven days.

In response to the noble Lord's specific question, the names of companies not complying with the scheme have not been made public, with commercial confidentiality being cited as the main reason.

Amendment No. 179 requires the Secretary of State to publish directions given to a supplier or manufacturer about the operation of statutory schemes in individual cases.

Clause 31(1) allows the Secretary of State to make regulations generally, or to give directions to a particular manufacturer or supplier. It is constructed in this manner for a specific purpose: it allows the Secretary of State to deal with a particular supplier or manufacturer in a manner which respects commercial confidentiality.

I recognise that the amendment seeks to achieve greater transparency, but I suggest to the noble Lord that it would defeat the object of respecting commercial confidentiality by placing in the public domain matters between the Secretary of State and a particular supplier or manufacturer about that company's professional and financial affairs. We do not believe that that is the right way forward. Therefore, I hope that the noble Lord will feel able to withdraw his amendment and accept the details of what I gave him when we discussed the earlier amendment; namely, that we will be making available aggregate details of the operation of both the voluntary and the statutory schemes.

Lord Lucas: I thank the Minister for her reply, but I do not find her answer satisfactory. After all, when the Ministry of Defence reaches an agreement with a supplier which results in that supplier paying a substantial amount of money back because of overcharging, or whatever it may be, the common practice is for the identity of that supplier to be made public. Can the Minister give me an example of what sort of considerations of commercial confidentiality apply where a supplier has been misbehaving itself to the extent that the Government have taken action under one of these two clauses? Can she give an example where it would be reasonable in all the circumstances, and taking into account the public interest, not to publish the name of that supplier?

Can the noble Baroness say how commercial confidentiality applies to such things as the actual cost of manufacturing a particular medicine, or the details of what has gone on behind the scenes? The fact that a

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manufacturer has transgressed and has been fined, say, half a million pounds, is surely not a matter to which any commercial confidentiality can apply without stretching that concept to an extent which would make a freedom of information Act--if we ever see one from this Government--entirely unnecessary because there would be no freedom.

Baroness Hayman: Rather than chance my arm at this stage of the proceedings by producing an example which might be flawed, perhaps the noble Lord will allow me to consider that and his analogy with the MoD and write to him on both issues.

Lord Lucas: Of course I will. The noble Baroness has been extraordinarily generous, not only to me but also to other Members of the Committee. That is a great compliment to her as a Minister and has made listening to these proceedings a great delight. I doubt that I ever behaved as well as she has when I served on the Front Bench. I should certainly be grateful for that consideration. I am sure that the noble Baroness understands the point that I am making here. I look forward to receiving that letter in due course, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Clause 29 [Statutory schemes: supplementary]:

[Amendment No. 170 not moved.]

Lord Clement-Jones moved Amendment No. 171:

Page 22, line 33, after ("body") insert ("and bodies representing consumers and patients").

The noble Lord said: Clause 29(1), says:

    "The Secretary of State may, after consultation with the industry body, make any provision he considers necessary or expedient for the purpose of enabling or facilitating--

    "(a) the introduction of a statutory scheme, or

    "(b) the determination of the provision to remain in a proposed statutory scheme".
The purpose of my amendment is to elicit from the Minister why other bodies, especially consumer and patient bodies as well as the new national institute for clinical excellence, will not be involved in that process. It seems rather exclusive simply to have consultation with the "industry body" when what is a significant step--that is, the setting up of a statutory scheme--takes place. I beg to move.

Baroness Hayman: I understand the spirit in which the noble Lord puts forward this amendment. I am sure he will be aware that we have made it absolutely clear in most responses that the Government intend to consult the representatives of patients, users and carers of the service. We have not done so here because, in terms of taking on a statutory scheme, it would be the technicalities of a scheme which set out to achieve fair and reasonable prices. In turn, that would give full regard to the needs of patients and consumers. The important issue for patients is that they continue to have access to the medicines indicated in their treatment. In considering this issue I am sure that the Secretary of

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State will listen to the views of patient groups. However, I do not believe that there should be a requirement to consult on the technical issues of a statutory scheme either with the national institute for clinical excellence--whose remit in this area is not clear-- or with representatives of patients and consumers. A statutory scheme would be concerned with the prices paid to the NHS.

I understand that the noble Lord will say that that in turn influences the amount of money that is available for other forms of care and is, in the broadest sense, of interest to patients and consumers. I do not disagree with him on that and I think the broad framework of such an agreement is something on which patient groups may wish to put forward their opinions. However, a statutory scheme would be concerned specifically with prices paid by the NHS and would be a matter for the Secretary of State as purchaser and the industry body as the representative of the suppliers.

In that case I think it is proper that we put on the face of the Bill the duty to consult with those suppliers who would be subject to the workings of a statutory scheme. However, I am not certain that it is appropriate to refer on the face of the Bill to consultation on what, as I say, is essentially the technicalities of price setting within the pharmaceutical industry. I hope therefore the noble Lord will feel able to withdraw his amendment.

12.15 a.m.

Lord Clement-Jones: I thank the Minister for that reply. I am not quite sure that she has addressed the point of whether NICE would have information on the technicalities of any statutory scheme. Over a period it will build up an enormous amount of expertise in the whole area of drug pricing and so on. However, the hour is late and I shall ponder the Minister's reply before the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 172 not moved.]

Baroness Sharp of Guildford moved Amendment No. 173:

Page 22, line 37, at end insert--
("( ) In exercising any powers or negotiating any price under or by virtue of any provision of this Act, the Secretary of State shall have regard to the priorities of the NHS for research and development in the field of pharmaceuticals.").

The noble Baroness said: This amendment reiterates the point that has already been made in the debate. It asks that any statutory scheme of price regulation that is introduced shall take account of the importance of research and development to this industry. As I stressed earlier, we have succeeded in "growing" in this country an extraordinarily successful and innovative pharmaceutical industry. It is a highly profitable industry but a good part of its profits are reinvested. The average cost of bringing a new drug to market these days is over £250 million. This is a vast sum and the industry deals in vast sums.

In setting prices, the Government must recognise that the industry has to have this level of resources at its disposal. If they do not do so, there is a great danger

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that we shall lose this extraordinarily successful research-based industry from which this country currently benefits a great deal. I beg to move.

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