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House of Lords

Wednesday, 12 October 2011.

11 am

Prayers-read by the Lord Bishop of Wakefield.

Arrangement of Business


11.05 am

Lord De Mauley: My Lords, it may be helpful to remind your Lordships of the advisory speaking time of eight minutes for Back-Bench contributions. As indicated on the Order Paper, it is expected that the winders will not begin their speeches before 1 pm.

Health and Social Care Bill

Second Reading (2nd Day)

11.06 am

Lord Campbell of Alloway: My Lords, the purpose of this short speech, within the advice that has been given, is to oppose the amendment to the commitment Motion to be moved later on. I say that with all due respect, of course, to the noble Lord, Lord Owen. There are two reasons for doing so and they are fairly short. The first is that this Bill proposes urgent requisite reform-immediate reform-of the NHS structure and means of implementation and there is no way in which it can be delayed. This was as expounded by my noble friend Lord Howe and spoken to by the noble Lord, Lord Birt, and many other noble Lords, some of whom agreed, others of whom did not agree. I support the Government.

There is also a problem of extraordinary importance beyond the actual remit of what the Bill is concerned with. We are entering, and have entered, a threat of global recession. The eurozone problems have not been resolved. The banking crisis has not been resolved. Whether we incur more borrowing to pay the interest on our massive debt, I do not know, but there is a problem here because if the country is in this state the first thing that has to be done is to seek to retain our triple A rating. If we do not support the Government, the consequences could be catastrophic. Those are the only reasons that I can give. This extraordinary situation concerns not just the Bill but the realm and the Government. We need to support them in a moment of crisis. I hope that undertakings will be given by my noble friend Lord Howe-if he is able to give them-to the effect that the Government will, before and after Royal Assent to the Bill, continue to take into consideration proposals, many of which have been spoken to by your Lordships. I am grateful for the opportunity to speak.

11.10 am

Lord Winston: My Lords, some three or so weeks ago an 80 year-old lady was admitted to an inner-city hospital in the United Kingdom complaining of abdominal pain. She went to accident and emergency where she had a series of cardiac arrests and was

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resuscitated on four occasions, according to what I was told. Remarkably, that evening she was still alive in accident and emergency and the following morning she was sitting up in bed talking, not terribly coherently but she was communicating and was capable of asking for a cup of tea. She was still under the surgeons, of course, because she had come in labelled with abdominal pain.

The physicians were concerned about the lady and they did an ECG. They found that her ST segments were elevated and that therefore she may have had a coronary thrombosis, so they phoned Hammersmith Hospital-I have the privilege of being associated with that hospital-because there doctors do thrombolysing. There was some toing and froing about whether she should be admitted there for thrombolysing treatment. Eventually, it was pointed out that on the whole Hammersmith Hospital did not contemplate doing thrombolysing on 80 year-old patients. The patient was left there and eventually she was seen by a surgeon who did an MRI, a CAT scan and various other investigations and decided that the lady possibly had a ruptured diverticulum. The surgeon was not sure whether she was fit to be operated on. In the mean time, an anaesthetist saw her. The anaesthetist said that if the surgeon was prepared to operate, he was prepared to anaesthetise. The surgeon said that if the anaesthetist was prepared to anaesthetise, he was prepared to operate. The lady underwent a laparotomy and the diverticulum was repaired. She spent the next four days in intensive care, where she died an undignified death, which was not what her relatives wanted. They probably would not have wanted her to be resuscitated in the first place.

I tell noble Lords this brief story because it is an example of the lack of co-ordination which is common in the health service, which the noble Earl, Lord Howe, and I have discussed. We both agree that it needs to be improved. Unfortunately, the Bill does not address that issue at all. In fact, one of my concerns is that the fragmentation may actually make the situation much worse. Co-ordination was addressed by the noble Lord, Lord Tugendhat, yesterday, speaking as chairman of the Imperial College Healthcare NHS Trust. He argued that we need to close hospitals. I agree but it will not be easy to do that under the Bill. However, the noble Lord did not come entirely clean-unfortunately, he is not in his place this morning-and point out that the Hammersmith Hospital's former trust-now the Imperial College trust-is, I believe, some £50 million in deficit this year. There is clearly an urgent need there although, unlike the noble Lord, Lord Campbell of Alloway, I do not believe that the NHS is in crisis.

To illustrate that point, I went to an independent think tank, the Commonwealth Fund, an American organisation which looks at healthcare around the world, and looked at some of its statistics. It turns out that at the end of the previous Labour Government we spent two and a half times less on healthcare than they do in the United States, 18 per cent less than they do in France and more than 40 per cent less than they do in Germany or Holland. It is interesting, therefore, to look at one issue which is really serious for us; the rising problem of ageing in the health service. I chose

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to look at their statistics for two operations associated with ageing; hip replacement and knee replacement. A knee replacement in the UK costs half what it costs in the US, is 10 per cent or 15 per cent cheaper than in Italy or France and costs 30 per cent less than it costs in Germany. A hip replacement is three times cheaper on the public purse in the United Kingdom than in the US. Do we therefore do fewer operations? Actually not. In the US they do 64 knee replacements per 100,000 of the population compared with 137 in the UK, 121 in Germany and 95 in France. With hips, Germany tops the league with 258 operations per 100,000; France does 208; we do just under 200; Italy, 141 and the United States, 139.

So actually the legacy of the previous Government which we keep hearing about might be a bit better than has been suggested by the present Government. We have heard a great deal about that legacy, but actually, the health service was left in a pretty fine state. I agree completely with what the noble Earl, Lord Howe, said yesterday about outcomes. Of course, it is pointless doing lots of hip operations unless we can match our outcomes with Europe. The figures are not available for those things, but the Commonwealth Fund addressed some interesting issues. Of course, as the Prime Minister said, we have to do something about the health service, but I am not sure that the figures of an independent, international body outside the UK with no political point to make at all can be refuted.

One issue is the satisfaction and the level of successful care recorded by the Commonwealth Fund. I have some figures here to show that the United Kingdom does incredibly well. For an expenditure of something like one-third of that of the United States, in every score we do better than the United States, better than New Zealand, about as well as Holland, much better than Germany, much better than Canada and much better than Australia-typical OECD countries which are rather similar to ourselves. The only place where we failed was in something which the noble Earl, Lord Howe, addressed in his speech yesterday. In the third or fourth paragraph of his speech, he talked about the need to extend longevity. The issue of longevity was clearly described recently by my noble friend Lord Darzi, not in the Chamber yesterday, but in a speech I heard him give at Imperial College last week. He showed a London Tube map from South Kensington, where Imperial College is situated, through Westminster towards Canning Town and in those seven miles longevity drops by seven years. So your expectancy of life in South Kensington, if you are a male, is around 77 and in Canning Town it is about 70. That has nothing to do with the health service; it has to do with education, with the environment, with something that the noble Lord, Lord Ribeiro, referred to yesterday-smoking and obesity. Twenty-five per cent of our population have a BMI of greater than 30. That is a very serious issue. We are about the third worst nation in the world after the US and New Zealand.

These things will not be changed by the Bill. In my view the Bill is unnecessary and, I am afraid to say, irresponsible.

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11.18 am

Baroness Hussein-Ece: My Lords, like many in your Lordships' House, I have had many letters and e-mails from people who are huge supporters of the NHS, many expressing real fear. It is unfortunate that much of the campaign we have experienced has relied on convincing the public that the NHS is set to be privatised. Many are convinced that we are heading for an American-style system and I am sure that we have all had e-mails saying that we do not want to see that. People are also worried that their children and grandchildren will not be able to receive the services that they received in their lifetime. I believe that the politicising of the debate on the NHS to this level is at best unhelpful and at worst irresponsible. It is playing on people's fears, and I felt quite saddened by some of the e-mails that I have had. I want to see a greatly improved and more responsive health service for my children and grandchildren.

We have huge challenges, as many of your Lordships have already mentioned. We have an ageing population; more and more people will become reliant on health and social care services that must-really must-become more responsive and integrated. We have heard from successive Health Secretaries and successive Governments that it has always been their aspiration to integrate health and social care, but on the ground we know that this has not always been the case. Patients should not be passive recipients of health services. They should be treated as individuals, people who place their trust in their local health service and expect quality of care. I believe the general public have far higher expectations that we probably had when we were growing up.

Like many others, my family has experienced the best and the worst of care, and it is the worst that we need to ensure is consistently always as good as the best; for example, the care and treatment of older people, as the noble Lord, Lord Winston, has just touched upon, is not always very good in many hospitals and remains unsatisfactory. I have a story too. Four years ago when my terminally ill 88 year-old father was left covered in bedsores, with poor pain management and personal care and the loss of his basic dignity, we felt there was no one in the hospital who was prepared to take responsibility for the poor nursing care-I was always sent to speak to somebody else. The stories in the media of older people being denied basic care and dignity are nothing short of a scandal, and unfortunately we still hear them daily.

I remember a document called Hungry in Hospital?, produced a decade ago by the Association of Community Health Councils when the noble Lord, Lord Harris of Haringey, who is not in his place today, was the chief executive. It recorded the plight of many older people who were simply left to starve because there were not enough nurses to assist with the most basic form of care-food. Recent reports unfortunately show that this is still happening. I want to see reforms that ensure that this never happens.

I also want to see a better and properly resourced health and social care system for disabled children, and for child and adolescent mental health services. I received a briefing note, as have many others, I am sure, from the campaign group Every Disabled Child

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Matters. Disabled children are the fastest growing group in the population of disabled people and they deserve better than the disproportionately lower priority than adults that they receive when it comes to the allocation of funds. Time and again I have dealt with cases, in my previous life as a councillor and more recently, where the individual service may be good or even excellent, but the collective system has let that child down. The current legislation does not provide for this.

Health inequalities remain at a grotesque level for such an affluent country. The NHS alone cannot resolve this. I am concerned that the single most important aspect of the phrase "No decision about me without me" is still at risk of failure. This relates to commissioners' duty to ensure the involvement of individual patients in decisions on managing their own care and treatment. I worked for years at the forefront of patient and public involvement in the NHS as the chief officer of a community health council in one of the most deprived parts of the country. CHCs were very effective. They were the patients' voice in the NHS, with a statutory right to be consulted on any changes in their local health services. They were local and they were mainly effective. Cynics at the time suggested that that was why they were unceremoniously scrapped by the last Government in 2003, to be replaced by a plethora of successive patients' groups at a cost of over £70 million in the first year alone. I welcome the proposals to strengthen patients' voices, but I have concerns that must be looked at if this Bill is to be properly scrutinised at Committee.

My concerns include the patient and public involvement requirements under both the current legislation and the Bill-that those who use services are involved in planning, changes and decisions affecting how services operate. The definition of involvement is very weak. What does that mean? The National Health Service Act 2006 diluted the involvement of patients and the public so that this could be met simply by giving information. The duty is neither comprehensive nor consistent across commissioners and all types of providers; for example, the proposed PPI duty on Monitor makes no sense, referring to whatever it feels "appropriate". There needs to be a statutory duty on Monitor to respond to referrals made to it by health overview and scrutiny committees because at the moment it simply ignores them.

I would like to see a much more patient-centred total health and well-being model, which would ensure that the Bill is fit for purpose. I am pleased that the Government have recognised that the powers of health and well-being boards need to be strengthened to ensure the co-ordination of commissioning plans with the health and well-being needs of the area. However, this proposal needs to go further. I was initially a supporter of primary care trusts. I sat on my local PCT board for four years, representing the local authority. We had a good relationship and integrated services, but many of my colleagues across the country simply did not, with local authorities barely having a working relationship with their PCTs.

My local PCT decided to close down a major primary healthcare centre, against huge public opposition. It was put out to consultation and the PCT's decision

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was referred to the council's health and well-being board, where it was properly scrutinised by democratically elected local councillors for many months. When the committee's report was complete, the PCT board refused even to allow the chair to present the committee's findings to the board. We were left with a huge conflict. A board of people who were unaccountable to the public and who only answered to the Secretary of State were in the driving seat, refusing to take any notice of a democratically elected health and well-being board. This experience convinced me that the present system needs reforming. Yes, the Secretary of State must be legally and politically responsible for the NHS, but there needs to be more accountability at all levels.

To conclude, I find myself in complete agreement with what the noble Baroness, Lady Thornton, said yesterday. She said:

"Our job is to scrutinise and improve this Bill".-[Official Report, 11/10/11; col.1480]

I totally agree. She somewhat contradicted herself later by saying that she would support the amendment tabled by the noble Lord, Lord Rea-in other words, no scrutiny of the Bill. However, I am very clear that this Bill needs improving and amending to ensure that we not only improve patient care but give patients and the public greater accountability within the health service and greater confidence. Many of us have welcomed the substantial changes that have already taken place, but I think most of us would agree that the status quo is not really an option.

11.27 am

Lord Hennessy of Nympsfield: My Lords, recasting the health service arouses more sensitivities than any other reform in our national life, as this Chamber has witnessed over the past 24 hours. Why? Because the National Health Service touches more of our people more intimately than any other state-funded activity. As the great RH Tawney once wrote:

"Only those institutions are loved which touch the imagination".

No institution surpasses the NHS in meeting the Tawney criterion. No institution ever has, since 5 July 1948, the day the service came into being, lifting more anxiety off more shoulders than any other social reform in our history. That moment was the closest we have ever come to institutionalising altruism.

In Tawney terms, for 63 years it has been impossible to conceive of our country without the NHS as a key ingredient in the way we imagine ourselves. The creation of the health service was and remains the most lustrous achievement of what historians call "Mr Attlee's Settlement", part of the late war/early post-war British New Deal, although we never called it that, which embraced Rab Butler's Education Act 1944 and the national insurance legislation, as well as the National Health Service Act 1946. And yet the tension that ripples through the Bill before us today flows from its attempt to sustain traces of those post-war principles while injecting the stimulus of markets, associated with that other great politico-economic weather-maker of our times, the noble Baroness, Lady Thatcher.

My own instincts are more towards the Attleean end of the spectrum on health matters but I understand and respect the motives of those possessing stronger

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market impulses than mine, although few see health as an area where the market should rip without inhibition. Even that most thoroughbred of free marketeers, Mr Enoch Powell, as Health Minister in the early 1960s, did not. Asked by his biographer, Simon Heffer, about the first big post-war hospital building programme, whose planning and funding he oversaw, Mr Powell replied,

"The people have willed it. Therefore, they must have it".

I suspect there are many in our country who would wish Parliament now to find a way of fusing the best in both instincts-of sculpting an approach that does not involve the Secretary of State for Health abandoning his traditional role as the ultimate and direct guarantor of a comprehensive service free at the point of delivery. Equally, I think, the public wish the Secretary of State to retain his function as accounter-in-chief to Parliament for the sustenance of that principle and the care it distributes to all across England, whatever their location, their needs or their socio-economic status.

For these reasons, I am sure your Lordships' House will apply the closest scrutiny to those clauses of the Bill which incorporate the constitutional functions of the Secretary of State. Your Lordships' Select Committee on the Constitution, as we have heard many times in this debate, has raised serious concerns about both the legal status of the Secretary of State in the Bill before us and about the strength of his accountability to Parliament. I share those worries.

The Bill, too, needs to sustain the original DNA of the wartime Beveridge report of 1942 in which the provision of healthcare stood out as one of the,

ignorance, idleness, squalor, want, disease. Central to this scheme, Beveridge declared, was that,

Clause 1 of the National Health Service Act 1946 gave that crucial Beveridge-minted strand of institutional DNA statutory form.

I do not think our people wish us to abandon the Beveridge principle. Might it not be possible, if your Lordships support the idea of a Special Select Committee to examine the Secretary of State's powers, constitutional functions and accountabilities, to find a form of drafting which meets those concerns? Perhaps Parliament could rediscover the value of that old device of a preamble to a statute which sets out the measure's ethos and purpose. The current NHS constitution, in fact, carries a "preamble", followed by a set of "principles" which are eloquent in this regard.

For these reasons, I urge noble Lords to support the amendment in the name of my noble friend Lord Owen to enable the creation of a Select Committee to run concurrently with the Committee stage of this Bill with a very tight remit and a requirement to report before Christmas. I do so not in the spirit of wrecking this Bill but of improving it. I am grateful to the noble Earl, Lord Howe, and the Leader of the House, the noble Lord, Lord Strathclyde, for the generous and courteous spirit in which they conducted their discussions

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with myself and the noble Lord, Lord Owen. I am grateful, too, to Mr Andrew Lansley for sending me a letter yesterday trying to assuage the anxieties about his proposed powers I expressed during an interview on the "Today" programme.

The NHS, to fulfil its purposes, needs to flourish and to work within the widest possible consensus, buttressed by the confidence of those it exists to serve and sustained by a Secretary of State whose constitutional position leaves him with the unambiguous duty of securing high-quality healthcare for all. I was encouraged yesterday by the pledge of the noble Earl, Lord Howe, to put the Secretary of State's responsibilities beyond doubt, though his words did jar with the thrust of his reply to the Constitution Committee's report.

I stress again that my noble friend Lord Owen and I are not in the business of wrecking. This is a very tight proposal for a bespoke Select Committee. I hope the Secretary of State's powers will be put beyond doubt. A specially tasked Select Committee for the purpose will be the best instrument for achieving that. I urge your Lordships to support my noble friend Lord Owen's amendment.

11.34 am

Lord Beecham: My Lords, we heard a good deal about cats last week, but your Lordships will recall the famous story in which Sherlock Holmes referred to the "curious incident of the dog in the night-time". His perceptive medical companion pointed out that the dog did nothing in the night-time, to which Holmes replied that that was the curious incident. The failure of the dog in the story to bark has not been emulated in the response to the Bill, which has evoked the equivalent of a veritable canine cacophony.

The noble Lord, Lord Ribeiro, called on his medical colleagues to stand up and be counted, but they have. In overwhelming numbers doctors, nurses and the royal colleges have rejected the Bill. No less than 70 per cent of general practitioners in the most recent survey called for it to be abandoned.

Like many of your Lordships, I have been deluged with briefings, letters and e-mails about the Bill of which precisely one has been in support of it. The Bill at inordinate length creates structures embodying organisations that are often either too big or too small to function effectively. They appear to be designed primarily to meet ideological rather than medical or social purposes. I must point out in passing that, despite its title, there is very little about social care in the Bill-another non-barking dog. Thus it creates the massive bureaucracy of a national Commissioning Board vested both with national responsibilities and the oversight and commissioning of primary care, dental and pharmaceutical services for localities. Monitor becomes an economic rather than a quality regulator, charged no longer with promoting competition but with repressing anti-competitive practices, a distinction that noble Lords might think is without a difference. The very name is apt because it was the name of the US navy vessel that in the civil war sank a Confederate warship in the first battle of ironclads and it is also the name of a carnivorous reptile.

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Clinical commissioning groups have been established in a troubling act of pre-legislative implementation. They are not coterminous with local authority boundaries and, and in the case of my own city, Newcastle, for example, there are already two commissioning groups. This raises serious issues about how the commissioning of services in hospitals within a regional or sub-regional reach will actually work.

Strategic health authorities have similarly disappeared, to be replaced in effect, at least for the time being apparently, by four super-SHAs responsible to the national Commissioning Board. Health and well-being boards, which are welcome in theory, will not include representation from district councils in shire areas, despite the latter having important functions relating to communities and individuals alike. The boards moreover are effectively consultees, not decision-making bodies.

As the noble Baroness, Lady Williams, pointed out, the Bill is strong on autonomy but weak on effective accountability, whether at national or local level. It is strong on competition, for which the evidence of benefit is perhaps less than compelling, but it is weak on failure. It replaces around 150 statutory bodies with something over 500. Perhaps its most welcome proposals are in the realm of public health, reversing the wrong turn taken in the 1973 reorganisation that did away with medical officers of health and chief public health inspectors who were powerful figures, as I can testify as someone who served on a health committee in my own authority at that time.

Even in the realm of public health, however, there are a number of concerns. Thus again, districts in two-tier areas are excluded, despite having specific responsibility for housing standards, food inspection and other environmental matters. There should be a register of qualified public health professionals and a public health appointee to the national Commissioning Board, on which, for that matter, the Chief Medical Officer should serve ex-officio.

There are also questions about duties. The Bill declares that:

"Each local authority must take steps as the Secretary of State considers appropriate for improving ... health".

The Secretary of State, on the other hand, "may" take steps, although the Bill in listing some possible steps makes no mention of sexual health, obesity, nutrition, alcohol or substance abuse, air and water quality, housing standards or occupational health. There is no duty on the NHS to co-operate with local authorities on public health issues, or on councils to co-operate with each other over, for example, disease prevention. There is a real concern about the status of Public Health England as an executive agency of a department to which it really must be free to speak plainly and publicly. In the words of Paul Burstow on Third Reading in another place:

"In legal terms, Public Health England and the Secretary of State are the same thing".-[Official Report, Commons, 7/9/11; col. 412.]

He makes the case, unintentionally, for having Public Health England as a separate body that is able to speak to the Secretary of State, rather than having the Secretary of State, as it were, speaking to himself.

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There are also issues about the funding of public health services, and the funding being ring-fenced. It is unclear how the level of funding will be determined and on what basis it will be allocated. It will be essential for the Government to work with the Local Government Association on this, and to avoid limiting funding to nationally prescribed outcomes. Funding will have to reflect local circumstances. It will also be necessary to avoid the impact of the proposed health premium, which is designed to reward health improvement but may penalise councils and their citizens in disadvantaged areas whose efforts to improve health may be frustrated more by the impact of matters outside their control than the policy decisions that they take. Those matters might well include government policies and, of course, the state of the economy.

There is also a question about how funding might be affected by the impact on children's services departments of the increasing numbers of academies and free schools opting out and taking away with them a proportion of the central support funding that the local authorities will apply.

We are in danger of moving from a national health service to a patchwork of fragmented health services, which will not be at all the same thing. The health service is of great utility to the people of this country. It is not a utility like gas, water or electricity-still less an insurance fund. It falls to this House to preserve the principles of the National Health Service and facilitate its continuous improvement in the service of the people.

11.41 am

Lord Fowler: My Lords, as the noble Lord, Lord Beecham, has just said, a constant theme of the debate has been the volume of public and professional objection to parts of the Bill. I do not downplay that, but such protest about change in health policy is hardly unique. The first health debate I took part in was as shadow Health Secretary in 1975, when I came from the peaceful realm of dealing with law and order, crime, police and prisons to the health service, and found the most horrendous row on pay beds taking place. The noble Lord, Lord Owen, will remember that as he was Health Minister at the time.

A few years later I took over as Secretary of State and stayed for six years, which is something of a post-war record. I would like to claim that this was a period of unparalleled peace, but this House has certain standards of honesty and frankness. The lesson I learnt from those years was that any change or reform in the health service almost certainly comes up against the implacable opposition of the BMA and the other health unions-and, very often, of the Opposition. When I introduced general managers, there was a fierce row. When I introduced a manpower policy, there was a fierce row. When I introduced contracting out, it was regarded as the work of the devil; and a proposal to have some very modest partnership between the public and private sector at district level was described by Michael Foot as,

The worst attack was when the BMA and the pharmaceutical industry combined to attack my proposals to save on the drugs bill by substituting cheaper,

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generic drugs for branded sleeping pills and tranquillisers. The BMA said that it was an unacceptable interference in the freedom to prescribe, and the pharmaceutical industry said that I was the worst kind of socialist. Even then, the party opposite voted against me. Perhaps it was the word "socialist" that they did not like. Needless to say, none of the policies has been overturned in the 25 years since. My point is that we should not be amazed at the noise and criticism accompanying any set of changes; that has always been the case. Having said that, I acknowledge that many issues raised in the debate are of genuine concern. Those of us who care about the future of the health service want to see them settled. The question is how that can be done.

What would be entirely unacceptable is for the Bill-by any standards a major government Bill-to be defeated by this House at Second Reading. I was a Member of the other place for 31 years and accountable to the electorate. When I came to your Lordships' House, my position changed. This House has great expertise, as the noble Lord, Lord Winston, has just shown, but it is an unelected House and should not on Second Reading substitute its own view of a major Bill passed by the elected House after an exceptional period of consideration. We were asked yesterday where the mandate was for this legislation. The mandate comes from the elected House-from MPs who are elected and accountable. Frankly I am amazed that the opposition Front Bench supports the amendment of the noble Lord, Lord Rea, because my argument is exactly the kind of argument they used in government on issues that were much less important.

The amendment of the noble Lord, Lord Owen, to which the noble Lord, Lord Hennessy, spoke, is nearer the mark. The question that they raise is not new. In many ways, it is the eternal question of the National Health Service. How, when one has an almost entirely tax-funded service, with an obligation on the Secretary of State to answer to Parliament on how money is being used, does one at the same time achieve maximum devolution for the service to be most effectively managed? I do not deny that there is an important issue here that we should consider. What I doubt is whether we require a special Select Committee to examine the issue. The normal committee processes of the House would be sufficient.

In the time available, I will make three quick points on why I support the Bill. First, any Government have an absolute right and duty to ensure that the enormous resources being devoted to the health service are properly used. We can debate by what percentage health costs go up each year, but we are now spending more than £120 billion a year on the health service. By any standards, that is a vast amount of money. What one wants, particularly in the light of an ageing population and the certainty of new treatments coming on stream, is to see that the service is well managed-and I do mean managed. It serves no purpose to refer to the many excellent managers in the health service as bureaucrats and administrators. We should value their skills in the same way as we value those of the clinicians and doctors.

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The second reason I support the Bill is that it explicitly recognises that not everything needs to be run by the health service. Fair competition is not an alien concept but something that applies to every other profession in this country. I do not want to wreck the political careers of the noble Lords, Lord Warner and Lord Darzi, but I agreed absolutely with what they said yesterday about this. Fair competition should ensure the best possible service. Equally, the use of the private sector does not mean that one is privatising the service; that is one of the oldest and dreariest charges. We are committed to a taxpayer-financed service, but making sensible use of the expertise of the private sector is what any modern public service should do.

My third and final reason for supporting the Bill is that it potentially contains-I listened to what the noble Lord, Lord Beecham, said on this-one of the most important steps forward: the creation of Public Health England, with a ring-fenced budget. I have just finished chairing a Select Committee of this House on HIV and AIDS. One of our findings was that at the last count, in 2009-10, the Department of Health spent £762 million on the treatment of HIV-mainly on drugs-and £2.9 million on prevention. The trouble is that people do not march up and down Whitehall or block Westminster Bridge carrying banners saying, "Prevention, prevention". The public demand treatment. The tragedy is that so much treatment could be avoided, as in the case of one man who wrote to me after our report saying that he was on the verge of suicide when he was diagnosed with HIV, and even today is receiving psychiatric care: a casualty of a failure to prevent an entirely preventable disease.

There has already been a long debate on this Bill. Unless we are careful, we will leave the health service in uncertainty about the future. We will leave it in suspended animation. I do not believe that anyone who is committed to the National Health Service wants to see that. My belief is that this Bill should now be given its Second Reading and that we should proceed to scrutinise it in Committee with the skill and care that this House has always shown.

11.51 am

Baroness Finlay of Llandaff: My Lords, no one could dispute that the NHS needs to change to meet its challenges, drive up quality to be universally good, and narrow health inequalities. The way to bring the benefits of research and innovation to people's health, whatever their condition, is for the NHS constantly to change and evolve. But if it is more fragmented by external ownership, any irreversible damage may not be evident for several years. The real concerns about this Bill are neither a resistance to change nor vested interests. They come from all quarters because there are so many changes to the NHS in the Bill and so many needed changes that are not in the Bill. The more we ask questions the more we are told that secondary legislation will sort out the detail.

The key risks with this Bill identified by the impact assessment include whether clinical commissioning groups have the capacity and capability to engage with and deliver clinical commissioning and to manage risk, and how the Commissioning Board will deal with

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the potential conflicts of interest for GPs as providers and commissioners of patient care. As my noble friend Lord Kakkar said, Nolan principles and oversight of primary care need to be on the face of the Bill. With excessive autonomy, how will we avoid a patchwork of services, with rarer conditions left out in the cold? Planning of services has always required a critical mass of population, but how will that planning happen now? Will public health, the Commissioning Board or the clinical commissioning groups have the final say?

A real concern is for patients of all ages with complex, long-term, but not very rare conditions. Rare conditions will be centrally commissioned; common conditions are to be dealt with by GPs. In children, for example, conditions such as cerebral palsy, diabetes, Down's syndrome or survivors of leukaemia are rare for a GP but not rare in paediatric practice. It is this middle group that risks falling between the cracks. Their real needs are for excellent, small-volume services. The choice-the real choice-they want is to have a service rather than no service or one restricted by stealth. Allied health professionals can be key, but where do they feature as core professionals? In the Nottingham area, we have already seen restrictions so imposed that they cannot practise properly.

Clinicians are used to rationing; the ethical principle of justice embodies it. Clinicians are also inherently competitive. It is their professional pride, not money in their pockets, that can be harnessed to drive up quality. We face the Nicholson challenge of savings and yet the impact assessment questioned the ability of GPs to deliver potential financial savings as well as transactional costs. There is also a question about how much this Bill is going to cost.

The Minister said that improving quality is motivating this Bill. But the NHS Confederation has said the jury is out on whether the Bill will actually improve quality. With more than 8,000 separate contacts, how can the Commissioning Board possibly manage primary care from a distance and monitor the quality and value of the service? The patient voice is a powerful driver to improve quality and it must be strengthened. We all welcome that. Patients' feedback on their experience of care can change practice, so feedback from patients on the way complaints are handled and collated must inform commissioning. However, it is unclear how the Commissioning Board will discharge its responsibilities for involving patients, the public, and public health in its plans and decisions.

Let me turn briefly to "any qualified provider". The hospice movement has provided this par excellence, sitting outside the NHS yet increasingly integrating. Where hospices have delivered best is where they have collaborated and integrated with the NHS, rather than competing fiercely for funding. I need no convincing of not-for-profit providers. However, people must have the protection of recourse to the health ombudsman, whoever the provider is-not only if it is the NHS-and every provider must have adequate indemnity.

My noble friend Lord Mawson spoke of the stifling barriers to progress when systems are not integrated and simple patient data are not available. There is a tension between collaborative integration and the possessiveness that can come from commercial

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competition. We must use our patient data better, not make it more difficult for them to be transferred. The personal profit motive can distort; incentives not to refer patients to other clinicians can cause delayed diagnosis. They neither achieve better quality, nor save money overall in the long term. It is good general medicine that decreases inappropriate referrals and ensures the best use of secondary care, and that requires closer integration of primary and secondary care, not less. The Government need to confirm that such integration will continue and be fostered under the proposed changes. We will meet our workforce needs only if the provision of educational and training resources is embedded in the contract with any qualified provider and is part of every tariff.

The duty to facilitate research must be strengthened in the Bill. Research drives up quality of care as well as contributing a financial benefit to the UK; when money is tight we need research more than ever. Change and innovation are essential for our health services to keep abreast of improved outcomes, to promote independence and to meet patient need. Change and innovation are driven by research. That is why universities and hospitals need to integrate more, not less.

In the past I have said that the NHS must stop being a political football. But removing so much responsibility from the Secretary of State feels more like abandonment. The recommendation of the Constitution Committee is that the Secretary of State's role be put beyond legal doubt. The suggestion of my noble friend Lord Owen seems to provide a good way to address this and to be time efficient. At the very least I hope that the Minister will agree to review this as the Bill proceeds.

I have kept asking whether we need this Bill to bring about the changes to drive up quality of care, improve outcomes, empower the patient voice and decrease layers of bureaucracy. The answer I have consistently been given is that the vast majority of changes can happen without the Bill and indeed the most important ones are already happening. I doubt whether this House will throw out the Bill, but it must amend it properly. At a time when we need to make savings and focus evermore on patient care, these reforms risk being an ever-increasing distraction for clinicians and managers. It is a credit to NHS clinical services that they continue to develop despite the uncertainty. Their concern that the NHS will not exist in five years time is driving their vocal opposition. People's health is not a commodity to be traded.

11.59 am

Lord Mackay of Clashfern: My Lords, I should declare a non-financial interest as an honorary fellow of three of the royal medical colleges associated with the health service. One of my earliest clients was the Scottish branch of the BMA, and the first time I appeared as a counsel in this House-when the House had jurisdiction to deal with these matters-was as counsel for the Medical and Dental Defence Union. So I have had a fairly long interest in health matters, including the health service, up to the present time.

We have all had a good deal of correspondence about the profit motive in relation to the health service. It is worth reminding ourselves that the main suppliers

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to the health service, both of drugs and equipment, are powerful industries in the private sector, and therefore the health service has to be able to deal with these in an effective manner. But the main issue for me is that raised by your Lordships' Constitution Committee. Its report, as we have come to expect, is clear, comprehensive and concise, and the Government have given a full response. What are required now are decisions.

The principal issue is the effect of deleting from the statutory duties of the Secretary of State the first part of the provision in Section 1(2) of the NHS Act 2006 that:

"The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act".

It is the taking out of the word "provide" that is a small but extremely important amendment. I agree entirely with the noble Lords, Lord Owen and Lord Hennessy, that this is a vital matter. The committee referred to the decision of the Court of Appeal in Coughlan in which my noble and learned friend Lord Woolf, then Master of the Rolls, said that the Secretary of State,

which was an issue in that case-

What is important is that that duty in these terms does in fact remain in the present Bill. The Constitution Committee, which includes distinguished parliamentarians and very distinguished lawyers, has put that question in clear terms to us all. I do not believe, although I have the greatest possible respect for the great range of talent in this House, that any other committee could have put it better, more succinctly or more comprehensively.

Yesterday, the right reverend Prelate the Bishop of Bristol referred to this as a "foundational" matter. I agree with that, and the sooner it is resolved, the better. The problem with the proposal of the noble Lords, Lord Owen and Lord Hennessy, is that, while I agree entirely with its importance, is the method by which it should be resolved. If, in truth, this is a foundational matter, it is very unusual to leave the consideration of the foundation to the end of the consideration of the structure, and that is what is going to be involved here. My submission to your Lordships is that the sooner the sting and toxicity coming out of this issue is removed from the consideration of the Bill, the better. I have every confidence that a full debate in an ordinary Committee of the Whole House will resolve it at the beginning rather than at the end of the process. However, according to the proposal of the noble Lord, Lord Owen, the rest of the Bill is to be considered without a decision on this point. But that decision is bound to affect all of the rest of the Bill, so consideration of the rest of the Bill is subject to a condition about its foundation, which cannot be effective. Noble Lords do not need to listen to the whole of the debate, although I have listened to a substantial part of it, to know that very important issues need to be debated in order to improve the Bill. Certainly I would like to see it improved to the best possible standard because the health service is the most precious system in our country. I personally am

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highly devoted to it and have now used it for long enough to have become one of the ageing population which is threatening to be a rather serious burden, although I hope that I will not be too burdensome.

The right way for this House to deal with this matter, in accordance with its ordinary methods, is at the proper place in the Bill. Whatever wrongs the Secretary of State has done-people are finding fault with all sorts of different aspects-at least this point arises at the beginning, the foundation, of the Bill. Surely this House should not lose the opportunity of dealing with it in its place, in accordance with the full and comprehensive issue put before us by our own committee.

I do not want to say anything about the issue itself at this stage, just simply that it is one of great importance which should be decided at the beginning, not the end, of the process. I hope that we will be able to decide it in Committee. It is always open to come to a conclusion in Committee, although many conclusions are reached on Report. But I would like to see this issue decided at the beginning of the Committee stage because it has the capacity to draw out a lot of the toxicity that is affecting consideration of the Bill. A lot of people have written saying that the whole of the health service is going to be damaged, lost and so on. We need to consider that and see what we can do to deal with it. I think that the Government have indicated in the other place that they would be willing to put this beyond legal doubt. The Committee has given us one way of doing that; namely, to go back to the way it was, in which case the legal doubt is resolved. But there may be reasons for not doing it which the Committee will have to consider, one of which was mentioned by the noble Baroness, Lady Finlay of Llandaff; namely, that it is highly desirable to prevent the National Health Service becoming a political football.

I have a sad recollection of a general election in which the ear of a particular patient of the National Health Service was a political football for days. That does no good for any of us. Indeed, it denigrates our health service. I am not saying that this Bill would eliminate that for certain, but the object of this change in the early part of the Bill is to try at least to reduce the risk. Your Lordships will want to consider that, but I suggest that we do so as a matter of priority at the very earliest stage in Committee.

12.07 pm

Baroness Pitkeathley: My Lords, I am going to be in a minority on these Benches by speaking in favour of the Bill, at least of one very small part of it, and that is Clauses 219 to 226 in Part 7 which create the Professional Standards Authority for Health and Social Care. I welcome the changes to the Council for Healthcare Regulatory Excellence, the organisation I currently chair. The changes provided by the Bill will bring in new regulatory options for the health and social care workforce through the accreditation of voluntary registers, new areas of oversight in statutory regulation across social work and new funding arrangements. I support this package of reforms because they keep the interests of patients, service users and the public at the heart of the system regulating healthcare workers in the UK and social workers in England.

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These provisions reflect evolving thinking about right-touch regulation and proportionate protection of the public. Giving the Professional Standards Authority the power to accredit organisations which have voluntary registers of health and social care workers but are not statutorily regulated introduces a new, cost-effective and flexible option for improving patient safety and experience. I also support the reforms because they allow for greater integration of health and social care regulation through our oversight function of the renamed Health and Care Professions Council, and of course the CHRE will be renamed the Professional Standards Authority for Health and Social Care to reflect the broader scope of its work. Right-touch regulation promises less but better regulation, and I pay tribute to the nine health regulators and the staff of the General Social Care Council who have embraced the proposed changes, which are not necessarily easy for them to make in a professional and positive manner. That is the limit of my positive approach to this Bill.

I am a passionate devotee of the NHS. I grew up in the Channel Islands, where every visit to a doctor had to be paid for and where good health was, therefore, largely a function of your income. My grandmother was deaf because of neglected ear infections and my grandfather was killed in a road accident because he returned to manual work too soon after being in hospital for surgery, driven by the need to pay the bill. I owe my own life to the NHS through its intervention, pioneering surgery and medical expertise, and my continuing good health to the watchful eye the NHS keeps on me.

In addition, one of the great commitments of my working life has been about social care. It is too easy, as others have said, to overlook the fact that the Bill before us is about health and social care; and about enabling disadvantaged individuals, clients, carers and patients to speak for themselves and to contribute to policy formation. How I judge proposals for changes to health and social care, therefore, is simple: first, whether the new arrangements will lead to services that are more organised around individuals and more focused on patient need; and secondly, whether there will be more integration among the providers of care, whether health services, care services or indeed voluntary and privately provided service.

The emphasis placed on integration and collaboration by the Future Forum report was very welcome but I have yet to be convinced about how its proposals, as interpreted in the Bill, will lead to better integration across health and social care. As the Future Forum report reminded us, the provision of integrated services is rarely dependent on structural change:

"The reality is that the provision of integrated services around the needs of patients occurs when the right values and behaviours are allowed to prevail and there is the will to do something different".

It is surely not hard to understand that since delivery of co-ordinated services depends on co-ordination between individuals, individuals are less likely to have the will to do something different when they are fearful about their own futures. This is not surprising, since the dedication and commitment of public sector workers is constantly undermined by some in our society and when they are worried about the service

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they love being dismantled and anxious about a future which seems to offer conflict between different types of vested interests instead of a focus on patient needs.

For the patients themselves, their fear and bewilderment is reflected in the huge number of communications that all your Lordships will have received. Is there anyone who really believes that the mantra of, "No decision about me without me" is going to be facilitated by the changes in the Bill? What patients want-and, I would strongly argue, what patients have a right to expect-are services across health and social care that are easily accessible, free from fears about affordability, and provide dignity, safety and peace of mind as well as treatment or cure. I pity any patient who is seeking those things in the mess the services now find themselves in. Patients always complain about the complexity of systems and about why one bit of the service does not seem to talk to another. The plethora of acronyms and layers with which they now have to contend is hardly going to help; and woe betide any patient who looks at the horrendous flow charts and diagrams of the new system.

I share with others the concerns that have been expressed about the lack of independence for HealthWatch, the potential conflicts of interest for local healthwatch organisations, the lack of proper transition arrangements between LINks and local healthwatch, and also the lack of real power for the health and well-being boards.

In addition, although some progress has been made towards coterminosity between consortia and local authorities, the populations for whom consortia will be responsible will be based on practice lists not geographical boundaries; so there may be all sorts of problems such as we have seen many times before with health and social care professionals trying to work across geographical and administrative boundaries, as the noble Lord, Lord Beecham, has warned us.

However, my principal worry about the patient and public involvement issue-I repeat-is that all my experience shows that structural change does not bring about integration and collaboration, either within a service or across services. It is people and proper communication about the assessment of needs from the point of view of the patient that bring that about. The well intentioned changes that have been made as a result of the Future Forum work have actually led to systems and structures that are more complex and difficult to find your way around-even for the professionals who work in them, let alone the consumers.

We always-not only in these difficult times-have to face a balancing act between quality and affordability. Much mention has been made in this long debate of competition. Some say it drives up quality, and that may be true for some services. I can only say that in a lifetime of working in health and social care, I have seen very few commercial interests competing to provide preventive services or services for those with dementia or with a mental disability. Those have been left to the voluntary and community sector, who will scarcely be able to compete on a level playing field with the giant commercial interests currently circling our NHS. Unlike the voluntary and community sector, which has always subsidised these services, I doubt they would be circling unless there were some prospect of profit.

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Anyone who has ever run an organisation knows you have to build a consensus if you want to bring about change-otherwise you spend too much energy fighting the change instead of facilitating it. However pressing the need for change in the NHS-and I have heard no noble Lord in this long debate argue against the need for change-the Government have utterly failed to build that consensus. All the communications we have received, and the large petition that I understand has been received today, are ample evidence of that. For the sake of patients and professionals-and the NHS which is so loved by us all-I hope that the amendment tabled by the noble Lord, Lord Owen, if carried, would give more time for building that vital consensus.

12.16 pm

Lord Patel: My Lords, I declare an interest in that I hold fellowships of several colleges. As I am going to speak about medical research, I should also say that I am a member of the Medical Research Council and a fellow of the Academy of Medical Sciences-all of which is probably quite irrelevant to what I am going to say.

I agree with my noble friend Lord Winston that much of this Bill is probably unnecessary. However, we have the Bill, and I will try to focus on issues related to it. I thank the noble Earl, Lord Howe, not only for the way in which he introduced the Bill but also for making time on several occasions to meet me to discuss issues that concern me. I am also slightly concerned at the number of hours he has been sitting in his place. I hope that he is doing sitting exercises to avoid deep vein thrombosis.

The Secretary of State, in his keynote speech at the Conservative Party conference, said: "On my watch, the NHS will not be privatised, fragmented or dismantled". Judging by the huge amount of briefs, mail and e-mails that we have all had, the perception of those who work in the NHS, patients and the public is the reverse. If the reforms are to work, listening to those who work in the NHS and to patients is going to be important.

Advances in diagnosis and treatments in areas such as cell therapy, genomics medicine, molecular diagnostics, regenerative medicine, nano-medicine and focused ultrasound therapy-to mention but a few-will be available probably in the next 10 years. It will be expensive, but it will also require a reconfiguration of health services to take advantage of it as well as better evaluation of the effectiveness of treatments. In some parts of the country patients are already not benefiting from the latest diagnostics and treatment, particularly those relating to cancer. To contain costs, better strategies for public health will be required, including regulation of diabetogenic products marketed in the high streets. The burden of lifestyle and environment-related diseases is huge and increasing: it accounts for nearly 40 per cent of in-patient admissions.

We also need more effective management of patients with long-term conditions, ideally in the community, delivered in an appropriate environment by skilled healthcare professionals. These patients are vulnerable and their experience of healthcare is often variable.

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I agree with the noble Lord, Lord Crisp, that we have lost an opportunity in this Bill by not having developed a strategy for delivery of treatment for patients with long-term conditions.

I agree that we need change. But is the scale of reforms proportionate, appropriate and timely? Will the many layers of increased administration that the Minister referred to lead to confusion, bureaucracy and increased costs? Some estimates suggest that there may well be between 25,000 and 30,000 people employed in the NHS Commissioning Board, the CQC, Monitor and the 350-odd clinical commissioning groups, none of whom will be involved in the direct provision of patient care. The NHS Commissioning Board alone may have upwards of 5,000 employees.

I turn now to some of the points raised by other noble Lords whose comments I support. Yesterday's best advice to the noble Earl, as it was put, came from the noble Lord, Lord Willis of Knaresborough. Later I shall have another piece of best advice for today. However, the noble Lord, Lord Willis, was right to say that establishing the health research authority is crucial. I also hope that the Bill will provide stronger support for a duty on all healthcare providers to be involved in promoting clinical research. I will therefore support the amendments tabled by the noble Lord, Lord Willis.

My noble friend Lord Walton of Detchant expressed strongly the need for the UK to be recognised internationally for good medical training. The Bill's proposals on the role of health education in England and of the regulator of medical education and training, the General Medical Council, cause confusion. Nothing should be done to change national training programmes. I hope that my noble friend Lord Walton will bring forward amendments that others will be able to support.

Equally, the noble Baroness, Lady Emerton, referred to several important issues relating to the training of nurses, nurse support workers, the representation of nurses on national bodies and safe staffing ratios. I will support her amendments. As a clinician, I understand very clearly that good nursing care makes patients better. She also mentioned Cause 231, but I am sure that she meant Clauses 225 and 226.

The strategy for delivering the public health agenda needs to be strengthened. There is a risk that, as currently drafted, the structures will not deliver the improvements that we need. There is also an issue about the public health workforce. I hope to have amendments on that which I hope will be accepted as a way of improving the delivery of the public health agenda.

The Minister referred to public and patient involvement. If the Government are serious, HealthWatch England should be given a stronger voice. It should be an independent body and not a committee of the CQC; it should be represented on the boards of the NHS Commissioning Board, Monitor and the CQC; and it should be well resourced. That is today's best advice. I will table an amendment to propose that and I hope that the Minister will accept it.

The noble Earl's key ministerial responsibility is for quality in healthcare, which is defined as effectiveness, patient safety and patient experience. The quality standards developed by NICE will be the key drivers of quality

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in the NHS. To be effective, they need to be based on the patient's journey of care, as I learned when developing quality standards myself. The noble Baroness, Lady Jay of Paddington, is not in her place so I will save her blushes. I wrote her a letter on 16 October 1997 and enclosed a paper on behalf of the Academy of Medical Royal Colleges, of which I was then the chair. The purpose of the paper was to establish a three-pronged approach to improving quality of care through the use of quality clinical indicators; a strategy for developing clinical effectiveness and the accreditation of clinical services licensing through peer review; and, to do this, to establish a body called the national institute of clinical effectiveness. I am glad that it survives as NICE.

The quality standards developed by NICE will be the key drivers of quality in the NHS. They need to reflect the patient's journey of care and to be used by the national Commissioning Board to develop currency-currency which will be used by Monitor to develop tariffs. The tariffs need to be bundled to deliver effective, integrated care that will result in good outcomes. The pricing has to be appropriate, and therefore should be reflected in the tariffs that the commissioners will use to purchase care.

However, I have to ask why there is such a convoluted way of developing tariffs. Why is there the involvement of the national Commissioning Board, Monitor and the commissioners? The NICE quality standards used by the commission could be simplified, and social care could be included.

The quality regulator, the CQC, will be responsible for making sure that the providers of healthcare follow the quality standards, but the methodology will need to be refined. The best way of assessing healthcare and monitoring quality is through peer review, as experience in other countries such as the United States has shown-and in England we also have the example of cardiac and thoracic surgery. The 300 to 350 clinical commissioning groups will use tariffs to purchase care. Good commissioning has been patchy. The Bill is unclear how that will be developed. How will conflict of interest by primary care doctors, as providers of care, and members of the commissioning group be managed? I have an issue with quality premiums-what they will be used for and the criteria for awarding them.

Performance management of GPs as providers of care is also not clear. When will we have a primary care outcomes framework? I hope that GP referral rates will not be used as indicators for quality payments. We already have evidence that for many patients, particularly cancer patients, late referrals produce poor outcomes. The noble Baroness, Lady Royall of Blaisdon, spoke yesterday-movingly and courageously-about her own family experience.

I think that Monitor as a sector regulator has too many tasks that it need not have. However, one task that it should have is as a financial regulator of social care. Healthcare regulation is complicated; it is not comparable to utilities regulation. Evidence presented at a recent seminar showed that successful regulators are simple regulators.

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Time does not allow me to comment on other important issues related to competition, choice, integration, the failure regime and reconfiguration, which are important issues. Some of them have already been mentioned by the noble Lord, Lord Warner, who I hope to join with in the amendments that he brings forward. No doubt we shall have an opportunity to discuss this in detail later.

As many noble Lords have commented, this is a complex and large Bill. I hope that the business managers will recognise the need to allow appropriate time for the Committee stage. In common with other noble Lords, my intention is to improve the Bill, make the delivery of healthcare in the NHS better, and build on what is already good.

12.27 pm

Baroness Donaghy: My Lords, we all have direct experience of the health service, some good and some not so good. Like most noble Lords I support change. I would like to go on to a hospital ward and find someone in charge. I hope that no one else will have to go through the obscene ping-pong of an elderly dependent relative going backwards and forwards between care home and hospital, not knowing what is best for them, but having them regarded either as a bed-blocker or a health risk.

Of course we need improvements, but it is vital that our own personal prejudices do not get in the way of the overall picture. To pretend that this Bill will solve any or all of these issues is to present a false prospectus. Despite raising these matters, we still do not know how failing organisations will be dealt with, how we will prevent GPs from abusing financial incentives, or how local authorities will be able to afford to set up elaborate new structures. We still cannot work out how the word "streamlining" can be used in the context of more committees, more overlap and more cost. Asking us to agree to this Bill is not just asking us to walk into the unknown, which is fair enough-innovation is good-it is asking us to dismantle our home beforehand.

If this were 1997, things were so bad there would have been popular support for any change, even a rotten one like this, but we are not in 1997. Things are different now. Enormous resources, self-respect, massive innovation and professional incentivisation have changed the agenda. We are now trying to protect what has been achieved. I was once involved in appointing new consultants. It was one of the most exhilarating of experiences. The new generation is chock-full of talent, is aware of the importance of outcomes and does not think that money grows on trees. We are so fortunate in our health service staff, and we should be praising them and taking them with us. As a former chair of ACAS, I know that consent is what leads to better productivity. I say to my noble friend Lady Wall that of course health service staff want certainty. They have wanted it for 63 years, and they are not going to get it. Do not be tempted by the seductive words that any decision is better than none. I have a friend who has worked in the health service all her life and is now on her 24th reorganisation. I am not saying that uncertainty is good or desirable in itself but, as the NHS constitution says, the NHS belongs to the people. As long as that is the case, politicians will always

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tinker. The alternative is that they might not belong to the health service any more and might be on worse conditions and have inferior pensions.

Yesterday the noble Baroness, Lady Bottomley, spoke of the burdens of ministerial office in the Department of Health, and I have no doubt that all Ministers work way beyond their best capacity. However, I believe that she obfuscated the true meaning of ministerial responsibility by emphasising day-to-day business and micromanagement, and her Tesco analogy really let the cat out of the bag: there is a national Commissioning Board if ever there was one. Some towns have so many Tescos that they are campaigning against them. Its success was built at the expense of the small provider-the local shop-and suppliers so desperate for contracts that they would enter into deals of slave-like proportions. Yes, quality was improved, but it was achieved by pushing down the exploitation to the lowest level.

Let us be clear: we are all in favour of better integration of services, but I think there are yawning gaps in the Bill about how social care will be treated. This subject is not new. In 1968, there was the Seebohm committee report, the health Green Paper and the Royal Commission on Local Government in England-the Maud report. In the debate on the Seebohm report in this House, Lord Amulree said:

"There is a need for a link between the residential homes ... and the hospitals ... This is something which does go wrong at the present time".-[Official Report, 29/1/69; col. 1180.]

Amen to that 43 years later. That comment was made when most residential homes were run by local authorities. If it was difficult then, how much more of a challenge will it be under the current set-up? I believe that care homes are a scandal waiting to happen.

What of the Government? The Prime Minister is to be admired for two reasons. First, he has the luck to have one of the most talented Ministers in this House to present this Bill. The noble Earl can truly make this "Titanic" look like Roman Abramovich's yacht. Secondly, I admire the Prime Minister for his loyalty to his friends and, in particular, his friend Andrew Lansley. I share the same birthday as the Prime Minister, although, unfortunately, not his age, so perhaps we share that value, but the Secretary of State's stubbornness is now a liability, and the Prime Minister should consider whether personal friendship is more important than running the country.

What is this Bill really about? It is about two things, and they are simple and stark, so they have to be wrapped up in lots of packaging. First, it is passing the ration book to GPs so that they get the blame. Secondly, it is laying the groundwork for the privatisation and dismantling of the National Health Service.

I shall finish with a quotation from Benjamin Disraeli. It is not:

"England does not love coalitions",-[Official Report, Commons, 16/12/1852; col. 1666.]

or even his comment on the Liberal Government of the day:

"You behold a range of exhausted volcanoes".

It is this from February 1851:

"I read this morning an awful, though anonymous, manifesto in the great organ of public opinion, which always makes me

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tremble: Olympian bolts; and yet I could not help fancying amid their rumbling terrors that I heard the plaintive treble of the Treasury bench".-[Official Report, Commons, 13/2/1851; col. 602.]

In a previous speech, I compared the health service with Little Red Riding Hood, with the noble Earl as an unlikely wolf sitting in bed with a frilly nightcap and speaking with a soft voice. When you consider how to vote, beware not only the big, bad wolf but, under the bed, the plaintive treble of the Treasury Bench.

12.37 pm

Lord Alderdice: My Lords, when one comes near the end of a debate in which almost 100 Members of your Lordships' House have spoken, one has a good deal of time to think about what one might say when the time comes. I must first start by declaring an interest. From the time I left college until March last year, I worked in the health service, first as a junior doctor, then as a consultant psychiatrist and then as an executive medical director of South and East Belfast Health and Social Services Trust, one of the largest health and social care trusts in Northern Ireland. I retired at the end of March. During that time, when I came home from work I did not stop talking about the health service because my wife is a consultant histopathologist. If my children felt that when their aunts and uncles came at least that would be a relief, it was not. All of those who work outside the home in my generation, on both sides of the family, work in healthcare: in academic medicine; in laboratory medicine; in general practice; in dermatology; in psychiatry; and in child healthcare. It runs through our family's veins in this generation. When I retired last year at the age of 55, I did so with a very heavy heart because in the early years I could see that in the area that I was committed to-people with mental and emotional disorders-every year I could look back and say, "There was a little bit of improvement this year. Things are moving forwards a little bit. There was a little bit of better care for the people who need it", but that was not the case in the last years.

The noble Lord, Lord Owen, in a very powerful speech, rightly said that the health service will always be a rationed service because there is an endless possibility of using resource, but he then went on to say that people trust the health service because it is always fair. I wish that were true. For those who live at a considerable distance from the metropolis, for those who have certain kinds of disorder, for those who are very young, as we heard yesterday in terms of child and adolescent services, and for many of those who are old, there is not an entirely fair distribution of resources, so we must always be thinking about how we can make it better, and I know noble Lords would not disagree with that.

The sense for me was that things were not improving. The sense was of low spirits. It is an anxiety that I detect in the many people who have contacted me by e-mail and letter and in the many speeches in your Lordships' House in this debate. Why are people so anxious? Is it just because every time there is talk about making any change in the healthcare system people get anxious? Look what happened to Hillary Clinton and President Obama when they tried to

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address the healthcare requirements in their country and, frankly, make it better and a little bit more like what we have been privileged to have in our country-yet they found that people were terrified even by improvements in service. Perhaps that is part of it. My noble friend Lord Fowler has identified how every attempt by parties on either side has always been met with anxiety. Some people would suggest that we are receiving this deluge of messages because campaigning organisations now have the capacity to deliver them with enormous sophistication and speed. Maybe there is some truth in that, but it would be wrong to think that it did not represent a real anxiety and concern.

Why are there these anxieties from, for example, clinical colleagues? We need to go back a little. When general management came in, it was not Roy Griffiths's intention to move away from involving clinicians in management. He subsequently made that clear in the early 1990s. He did not want a separate profession of managers, but I am afraid that many of my medical colleagues, and other clinical colleagues too, said: "We do not need to get involved with that. We will just get on with the clinical work, which is really what we want to do". It is a seductive argument. Many managers also thought that it was much easier to manage if these people did not keep coming up with difficult clinical conundrums for them to address.

Over many years it got to a point where many doctors and other clinicians felt that they had no way into the management. That was one of my problems. I was left on an evening with a psychotic, suicidal patient whom I knew could not be managed in the community, but as a doctor I could no longer admit them to a hospital bed without going through an administrator who knew nothing about the patient and nothing about the situation, yet was telling me I had to keep them in the community and manage them however I could.

That has left doctors in such a position that-even though the previous Government put lots more money into the service, for which I commend them, and increased the salary of doctors, for which I guess they are to be commended to some extent-it did not improve output and efficiency. It did not even improve the morale of doctors. Most people of my age-I am 56-want to retire early from the National Health Service because they feel impotent to make the kind of changes that they want.

How do we address that? We find a way of bringing back together clinical involvement and the management of the service. Management is not a dirty word, but clinical experience and involvement is necessary if it is going to be good and effective. Not everybody will welcome that. It is much easier for a doctor just to go to his clinic and have no sense of responsibility for the implications of his clinical decisions, either for his particular patient or for all the rest of the patients and community. However, I am afraid it is the responsibility of clinicians to do that. It will not be easy for managers. I am sure they are happier whenever clinicians stay at bay, but these are issues that have to be addressed. We have to face their difficulty if we are to have a better health service.

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Another dilemma was that things became more and more centralised, with more targets, regulations and directives coming from the centre, to address these problems. But many of them cannot be addressed from the centre. You have to involve local people-patients, carers and elected representatives. That is why the purpose of this Bill is to get clinicians back involved with management, localities, patients and carers through health and well-being boards, HealthWatch and other facilities involved in the process. And yes, colleagues should also compete with each other, not on the basis of price but-as the noble Lords, Lord Warner, Lord Darzi and Lord Birt have made clear-there is a value in people measuring themselves against their medical and clinical peers to see whether their performance and the production of their service is the best it can be.

I see the noble Baroness, Lady Thornton, shaking her head. She approached me some time ago in the run-up to this Bill to ask if we could get together and have some workshops and seminars to make noble Lords aware of all the issues. Some colleagues said it was a trap and I should not get involved-that the noble Baroness was trying to split the Lib Dems off from the Conservatives. I said I did not believe that and that she genuinely wanted to achieve familiarisation with all the issues, almost as a kind of do-it-yourself pre-legislative scrutiny. We got involved together and it was useful work. So when she said in her opening speech in this debate that there were a series of things she welcomed and would go on to discuss in Committee, I thought it was absolutely wonderful. Then she said that she would support not having a Second Reading. I thought that it would be a bit difficult discussing them in Committee if we did not actually get to a Committee.

However, that is what we have to do. We have to get to Committee to make sure we make the best possible Bill. What would happen if it was tossed out? What would be the message to the people in the health service? No clarity, no direction, no possibility of actually approving it on the Floor of Parliament. Some people have said that we do not need a Bill and many of the things could be done away from the Floor of the House. However, then there would not be good scrutiny or the facility for proper debate that people could engage with. Some of these changes also require legislation. It is extremely important.

The noble Lord, Lord Owen, and a number of colleagues have said that a number of constitutional questions need to be addressed. That is true. There are constitutional questions that have not been touched upon. Noble Lords would not expect me to ignore the fact that, when the health service was founded, there was a United Kingdom with a single health service and a little side-bar to Northern Ireland. Now there are four health services. There have been constitutional changes that have to be addressed, but this debate shows us that the richness and understanding of the whole House is needed to address these constitutional questions. As the noble Lord, Lord Owen, made clear, it is not possible to determine how long a Select Committee might meet and it could drag things out over a considerable period.

I appeal to colleagues that we get on with our business, which is not to defy the other place but to scrutinise

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the legislation ourselves together on the Floor of the House. I have one final request to my noble friend. It is crucial that he makes clear when he speaks that the Secretary of State-not someone else-will retain the responsibility and the accountability and be the ultimate guarantor of a National Health Service that we can all be confident in, not anxious about its future.

12.48 pm

The Archbishop of York: My Lords, let me declare an interest in this Bill as a previous patient of the National Health Service. In 2008, suffering salmonella as soon as I arrived from overseas, I was treated for nine days at University College London. I received excellent treatment. It was co-ordinated and first rate. In May 2008, at St Thomas's Hospital, I was admitted and stayed for 12 days for the removal of a rather nasty appendix. I was looked after well, it was well co-ordinated and wonderful. In August this year, at York Teaching Hospital, I was treated for repairing my rotator cuff and removing my uvular because it was affecting my throat. It was fantastic and well co-ordinated.

All three hospitals are teaching hospitals. The question that we need to ask ourselves is: will this Bill raise and improve the standards in our teaching hospitals? I am doubtful because if you are a teaching hospital it means that sometimes things may be delayed and may not happen so quickly. They have to work hard. Will it improve the teaching hospitals of our country? I am doubtful. My Archiepiscopal colleague, the most reverend Primate of all England, Dr Williams, in the New Statesman on 9 June in a speech on education said:

"With remarkable speed, we are being committed to radical, long-term policies for which no one voted. At the very least, there is an understandable anxiety about what democracy means in such a context".

A number of noble Lords have repeated the same view: that the Bill has no mandate. It was not in the manifesto. It will not do simply to repeat the statement that it was in the coalition agreement. Joe and Jane public did not vote on it. That is why there is anxiety in the nation and that is why there is a lot of worry about it. Therefore, the Government would be wise to persuade the public, the professionals and most of all the staff of the NHS that it is in their interest.

The best way of doing that is to allow proper scrutiny of the areas that have caused the greatest anxiety. From listening this morning, I think that the amendment by the noble Lord, Lord Owen, does that. The area of anxiety that it addresses is the extent to which the Secretary of State is still responsible, and it allows parliamentary counsel to help in the scrutiny of that particular part.

The noble and learned Lord, Lord Mackay, agrees with the right reverend Prelate the Bishop of Bristol that the role of the Secretary of State is a foundation issue. The Secretary of State has responsibility for the health of the nation. He said that since this is a foundation question, we had better deal with it quickly. But will time allow us properly to examine the foundation and secure that the foundation is good? It does not seem to me that in the short time available we will do

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that. Time will run out and I agree with the noble Lord, Lord Winston, that this will not improve the National Health Service. It may do other things but health is somewhere else.

12.52 pm

Baroness Scotland of Asthal: My Lords, with the leave of the House I would like to speak in the gap. Your Lordships will be relieved to know that I will be very brief.

I have had the privilege of listening to this debate for much of yesterday and most of this morning. It is clear that it is one of the highest quality debates in which we have had the privilege of participating in this Session or indeed for a number of Sessions that I have been privileged to sit in your Lordships' House. Rarely have I heard the level of concern, commitment and indeed love for any particular institution. It is clear that the NHS is loved: not just valued, but genuinely loved.

The issues therefore that the House has been grappling with in many ways surround some of the legal consequences of the changes that we are minded to make. Those are difficult and challenging issues. Your Lordships will know that I sat where the noble Earl, Lord Howe, is sitting for many years. Therefore, it is my estimation that this difficulty is likely to take a great deal of time on the Floor of your Lordships' House. I hear with great care the powerful statement made by the noble Lord, Lord Fowler, that we can deal with this in our normal way and that it is part of the raison d'être of this House. I understand why he says that, but, frankly, I disagree. There will be a level of acuity that we will have to address to this particular issue that will be quite difficult to do on the Floor of the House.

We need calm, we need sagacity and we need careful contemplative consideration. That is often done away from the public eye and the public glare so that people can say what they genuinely think in a way that will benefit this House. We wish the issues between us to be narrowed so that we can focus only on those things with which we have to deal. I respectfully suggest to the House that that could be more conveniently, effectively and critically dealt with to the benefit of this House's debate and much more importantly to the benefit of the people of our country, who will be listening with real anxiety about what this House does. It would be easier to deliver what our country needs if we entrust that duty to a Select Committee which we know will have the commitment and belief of all of us if we give them that opportunity. I therefore ask the House to consider very carefully whether we would not be better placed to support the amendment in the name of the noble Lords, Lord Owen and Lord Hennessy.

12.56 pm

Lord Newton of Braintree: My Lords, somewhat unexpectedly, I find myself seeking the leave of the House to speak in the gap. I have a string of interests to declare including being chair of a health trust and a long history of being chair of health trusts and in other ways for something like 25 years.

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Am I a supporter of the Bill? Yes, in general. Can it be improved? Yes, for certain. That is what we should be thinking about doing. There are three substantive points that I want to make briefly. Change in the NHS, as my noble friend and others know quite well, is a process not an event. These changes are already well down the track. In my view, it would be too late to stop them without causing total and complete chaos. If they are delayed, by whatever route, that will do more damage to the NHS, which we all much love, than if we get on with it.

In relation to the desire to refer part of the Bill to some kind of committee, I do not know about other noble Lords but I have been deluged with representations from professional bodies, every kind of association and a lot of individuals. There is ample evidence of people's views to be taken into account by this House in the ordinary way in its deliberations in Committee. That is what we are good at. That is what we have shown we are good at on the Localism Bill, the Public Bodies Bill and no doubt soon on the Welfare Reform Bill. Let us get on and do our job.

12.58 pm

Lord Hunt of Kings Heath: My Lords, two minutes before time. I first declare an interest as chair of the Heart of England NHS Foundation trust, president of the Royal Society of Public Health, the British Fluoridation Society, and the Health Care Supplies Association, a health policy consultant and trainer with Cumberlege Connections and member of the National Advisory Council, Easy Care Foundation. But I speak for the opposition Front Bench.

The noble Earl enjoys huge respect in your Lordships' House. I well recall the many debates over four years that we have had across the Dispatch Box in which the noble Earl from this position cautioned me about the ill effects of the continuous restructuring of the National Health Service. Yet it is on the noble Earl's watch that the health service is now facing the most turbulent time in its history. It is unsought after by patients, in direct contradiction of Mr Cameron's pledge of no top-down reorganisation of the NHS and is driving a coach and horses through the coalition agreement, as the noble Baroness, Lady Jolly, reminded us yesterday.

At the end of this wonderful debate, there is one question above all others that I and, I believe, many other noble Lords, want to put to the noble Earl. It is simply the question, "Why?" Why, when the NHS is facing this huge efficiency challenge of finding £20 billion, is it being diverted by this disruptive reorganisation? Why are millions of pounds being wasted on redundancies and the set-up costs of the new system? And why, when the Government inherited the NHS in the best condition it has ever been, are they tearing the whole service up by its roots?

I say to the noble Earl and the noble Lord, Lord Alderdice, that I did not recognise the health service that he talked about. We should go back to 1997, when we inherited the Conservatives' Patient's Charter. Noble Lords may recall that this aimed for a maximum of 18 months' wait for hospital appointments. They could never achieve it, but we did-and more. Eighteen

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months tumbled to 18 weeks-a crumbling edifice was transformed into hundreds of new hospitals and there was a major emphasis on improving health outcomes.

We developed the Expert Patients Programme, national service frameworks to improve integration of services, and accessible services such as walk-in centres and NHS Direct. I do not apologise for referring to what my noble friend Lord Winston said about the verdict of the US think tank, the Commonwealth Fund. It singled out the NHS as top of the class, in the one country where wealth does not determine access to care, since it provides the most widely accessible treatment at low cost. I must say I was very disappointed that, when the noble Earl's department was asked to comment on that assessment, instead of lauding the achievements of the NHS, it scratched around to identify problems. That was very disappointing indeed.

Yesterday, in his careful speech, the noble Earl sought to justify the Bill because of rising demand and treatment costs, and the need to improve efficiency and outcomes in areas such as stroke and some cancers. He is right; these are considerable challenges. But I repeat the question asked last night by his noble friend Lord Tugendhat: why did he not build on what he inherited? It was the Labour Government who enshrined patient choice in the NHS constitution; we introduced practice-based commissioning. Let me say to the noble Lords, Lord Kakkar and Lord Alderdice, that our disagreement with the Government is not about patient choice, it is certainly not about clinical involvement-I absolutely agree on the need for this-and it is not about devolved decision-making. My whole argument is with this expensive and bureaucratic reorganisation that they have determined on.

We all watched with interest the listening exercise and the deliberations of the NHS Future Forum, led by Professor Steve Field. It is true that the Government produced loads of amendments at a late stage in the other place. The problem is that those amendments, when combined together, proved to be of little substance. Let us take the Secretary of State's responsibilities to provide comprehensive services. In this Bill, the Government will continue to water down those responsibilities. The noble and learned Lord, Lord Mackay, described that as foundational. Yesterday, the noble Earl said that the fact that the Secretary of State delegates so much responsibility to other bodies shows that the current legislation is not fit for purpose. The fact of that delegation is recognition of the Secretary of State's responsibility to Parliament for the spending of more than £120 billion a year. When trouble arises, whether it is a public health disaster such as BSE, or perhaps a clinical safety issue such as occurred at Mid Staffordshire NHS Foundation Trust, it is the Secretary of State whom we look to to account to Parliament.

I understand why some noble Lords are attracted to this part of the Bill; they want to take politics out of the NHS and they want to prevent micromanagement by Ministers. But some of us are old enough to remember the glory days of the nationalised industries and the tension between the chairman of the board and the Minister responsible. In the end, it was the Minister who was always held responsible by the public. I thought the noble Lord, Lord Mawhinney, put his

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finger on it yesterday. He complained to Ministers through a parliamentary Written Question about the merger of local primary care trusts, and he found his complaint referred back for an answer to the very official who had driven that decision in the first place. The noble Lord had better get used to this because that is the architecture contained in this Bill. It is about Ministers evading their responsibilities. In the end, I would rather be overseen by a Minister properly accountable to Parliament than by a quango whose accountability is somewhat tenuous.

Despite the Future Forum, a huge gamble is to be taken with clinical commissioning groups. Billions of pounds will be given to GPs, without any proper accountability to the public or any expertise in major commissioning decisions. The doctor-patient relationship goes to the heart of general practice, but neither the Future Forum nor the Government seem to show any signs of understanding the ethical tension between the role of GP as champion of the patient and the role of GP as rationer of services through commissioning; and neither will patients. What are the potential conflicts of interest if the clinical commissioning group places contracts with GPs in their group, or the use-as we saw last week at the Haxby Group Practice in Yorkshire-by GPs of their NHS patient list to promote their own private services? What does that do to the doctor-patient relationship?

Then we come to the issue of competition and the role of the private sector. I agree with my noble friend Lord Hutton that both have their place in the NHS, provided that they are properly managed. I have no problems with that at all, but I do not want to see destructive competition put at risk essential collaboration between neighbouring hospitals or the cherry-picking of services, which could harm the viability of many of our NHS services. Nor do I want to see the loss of the altruism that is characteristic of so many people in the NHS. My noble friend Lady Kingsmill, former deputy chairman of the Competition Commission, said yesterday that competition red in tooth and claw has its limits. Does the noble Earl agree with that? On the issue of competition and the use of the private sector, at heart it is a question of trust, and in essence the Government are simply not trusted. I, too, share the concern raised by the noble Lord, Lord Clement-Jones, that European competition law could bite in unexpected ways.

There is also real confusion about the role of the economic regulator Monitor. Yes, the Government have nuanced the role of the regulator, but it is still to be given anticompetitive responsibilities. As the King's Fund has said, concerns remain about the extent of competition in the future NHS and its impact on integrated care, let alone on its relationship to social care. So the Future Forum has not changed the core principles. All that has happened is tinkering at the edges while sowing the seeds of great confusion in the NHS. We see a huge absorption of power by that giant of all quangos, the NHS Commissioning Board, so it is now going to get a massive slice of the commissioning budget, strong control of the clinical commissioning groups and direct contracting with every single GP, dentist, ophthalmologist and pharmacist in the country- thousands and thousands of them, all in contract with

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the NHS Commissioning Board. I am a great admirer of Sir David Nicholson, but I am alarmed by the lack of accountability of the board. It does not even need to meet in public.

This is just one aspect of a confusing and flawed architecture. What about the joint responsibility of the Commissioning Board and Monitor, the economic regulator, for tariff setting? It is clouded in ambiguity. What will be the relationship between Monitor and the quality regulator, CQC? With money tight and getting tighter, there will be an inevitable tension between the financial health of an institution and the safety and quality of services. Who will moderate that tension?

We now have the Francis inquiry into the mid-Staffs NHS trust. I would have thought that it might have important things to say about that. I would ask the Minister whether it would not be prudent to await that before rushing into these problematic changes.

We then come to the local level. Here the architecture is even more confusing. The King's Fund has said that the major reconfiguration of hospital services is urgently needed for clinical and financial reasons. These are the real reforms that are needed today, but who will give them a green light? Yesterday, the Minister accused the last Government of creating layers of administration. That is a bit rich when you look at what he and his colleagues have created. Which body will sign off the reconfiguration of services at the local level? Is it to be the putative clinical commissioning groups, yet to be authorised, or the existing primary care trusts, or the extra-statutory clusters of PCTs that have assumed enormous power to themselves, or perhaps the local offices of the NHS Commissioning Board, which are an inevitability? What about the commissioning support units, another initiative, which apparently are to be set up in each area to support the clinical commissioning groups in their commissioning responsibilities, or the local authority health and well-being boards, which will be given enhanced roles in relation to commissioning, or perhaps the local authority overview and scrutiny committees, which will still be able to refer major service changes? The clinical networks will presumably want a say, and the clinical senates will certainly want to get involved.

The Minister said that he wanted to reduce bureaucracy and remove the vacuum in decision-making. These provisions do the opposite; they have created a monster where opportunities for delay and buck-passing will be legion. No wonder that almost every noble Lord who has spoken has called for more scrutiny. Should the noble Lord, Lord Owen, put his Motion to the vote, we will certainly support him.

I listened with great interest to the noble and learned Lord, Lord Mackay, who argued that because this issue of the powers of the Secretary of State are foundational, as he described it, if we were to accept the Motion proposed by the noble Lord, Lord Owen, it would be difficult to deal with the rest of the Bill, because a vacuum would be there. But there is plenty for us to debate were the noble Lord, Lord Owen, to be successful. I would pray in aid the police Bill. The noble and learned Lord will recall that on the first debate, on the first day of Committee, the House

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voted to take out essentially the core clause in the Bill. We had many happy days debating the rest of the Bill, and I do not think that your Lordships found themselves at all inhibited by that.

Even at this late stage, I hope that the Minister will get up and say that he will accept the Motion from the noble Lord, Lord Owen. The Opposition are quite happy to agree with the usual channels the number of days that the Bill should be in Committee and we are quite happy to agree a date by which Committee stage should be completed. You cannot say fairer than that. I urge the Minister to accept that offer. Of course, it would be better if we had no Bill at all. Last week, 400 doctors and other medical professionals wrote to the Telegraph. They said:

"The Bill will do irreparable harm to the NHS ... It ushers in a significantly heightened degree of commercialisation and marketisation that will fragment patient care; aggravate risks to individual patient safety; erode medical ethics and trust ... widen health inequalities",

and, waste much money". And that was just the first paragraph.

That great Liberal, Sir William Beveridge, in his 1942 plan, envisaged a National Health Service covering all medical treatments. Aneurin Bevan presented his proposals in 1946, in this very Chamber, though in another place, and said that the NHS would,

The NHS has done this magnificently.

This morning, I and my colleagues received from 38 Degrees a petition containing over 135,000 signatures collected in a very short space of time asking this House to protect the NHS and to ensure that the Bill gets proper scrutiny. That is but one small reflection of widespread concern in the community and the NHS. Yes, the noble Lord, Lord Fowler, is right; there have been concerns before, when he was Secretary of State. Indeed, I hope that I was quite successful in orchestrating some of those concerns. But this is different. The scale of concern and mistrust among the public and the NHS is greater than I have ever known it before. Only this House now stands between safeguarding the NHS and these confused and damaging proposals. I hope that we will not fail the test that has been set us. I shall support my noble friend in the Lobby.

1.16 pm

Earl Howe: I rise to conclude an excellent and constructive debate. It has been long, and the task that rests with me in summing it up in the space of 20 minutes is clearly an impossible one, if I am to do justice to every speaker. Therefore, I hope that the House will find it acceptable if I aim in my response to capture the main themes of this debate and to write to noble Lords whose specific and detailed questions I do not have time to answer. In addition, I am happy to offer any the noble Lord a meeting with me or with officials from the Department of Health to discuss any of the issues that they have raised.

To begin with what might seem an emotional and emotive point, it was said by more than one speaker, including the noble Lord, Lord Hennessy, this morning,

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that the NHS is the nearest thing that this country has to institutionalised altruism. That is surely right. It is equally right that the NHS is a part of our national life, of which we can be deeply proud. At its best, which is often, it delivers high-quality excellent care. The investment made by the previous Government has contributed significantly to that.

A number of noble Lords asked why, therefore, the Government's reforms are needed at all. Part of the answer to that is about the clear imperative around the quality of care, about which the noble Lord, Lord Darzi, and my noble friend Lord Black spoke so powerfully. Indeed, we have excellent care in the NHS, but sadly this is not universal. The variations in quality and outcomes and longevity around the country are too great for us to sit back and do very little. But there is another less visible reason. In a sense, the need for reform is not about how excellent the NHS may be today; it is about our making sure that in five, 10 and 20 years' time the NHS is still there as a sustainable public service, free at the point of use, delivering the care that we all want it to.

The financial challenge facing the NHS is acute. We have protected its budget in real terms, but that is not going to be enough to meet demand from an ageing and growing population unless we take some radical steps to simplify and streamline the NHS architecture and to free up the service from central control in a way that will drive innovation and productivity as never before. That is the purpose of these reforms and this Bill. It is not just about today; it is about safeguarding the future. If I had one criticism of some of the contributions from the Benches opposite it was of their failure to acknowledge the scale of the financial and quality challenge that now faces us. Money will no longer grow on trees in the NHS; we have to think out of the box. So we are seizing on the evidence of what works in order to drive quality-namely, empowering commissioners. We are cutting the cost of NHS administration by one third, and we are trusting the men and women of the health service-including, incidentally, our many excellent managers-to deliver what we know they can, which is an even better service for their patients. And make no mistake-there are doctors and nurses and managers out there who are keen to get to grips with this. Yes, of course, there are many who have no appetite for change, and there are many critics and doubters. But I have met so many clinicians that I cannot count them, who believe that what we are doing is right, and who are being inspired by these reforms to lead the way in the local pathfinder groups and in local authorities.

The NHS needs continual renewal. It has never stood still, and it cannot do so now. The noble Lord, Lord Darzi, put it perfectly when he said:

"To believe in the NHS is to believe in its reform".

Many speakers, most prominently my noble friend Lady Williams and the noble Baroness, Lady Jay, have spoken about accountability in the role of the Secretary of State. For me, the debate on this topic crystallised into two issues. A number of speakers aligned themselves with the Select Committee on the Constitution in questioning why we have removed the Secretary of State's duty to provide. There has been concern that

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this means that the Minister's ultimate accountability for the NHS is in some way diluted. I can reassure the House that this is not so. A change as pointed out by several noble Lords, including the noble Lord, Lord Warner, and my noble friend Lady Bottomley, as well as the noble Baroness, Lady Murphy, is to reflect a fact which has been the case for many years; namely, that the Secretary of State does not directly provide services himself.

Under the Bill, the Secretary of State will continue to have a statutory duty to promote a comprehensive health service, and a duty to use his powers to secure the provision of the service. As has been the case for decades, it does not extend to the Secretary of State directly providing services. So rather than pretend that somehow the Secretary of State is responsible for all clinical decision making in the NHS, the Bill recognises that expertise for such decisions must sit with those health professionals closest to patients. Indeed, my noble friend Lord Marks put it well when he pointed to the means by which Secretaries of State will be able to do this; namely, the mandate to the NHS Commissioning Board, the standing rules, and the failure intervention powers. I may say that the improvements that my noble friend suggested to these powers sounded interesting to me, and I look forward to discussing these with him in greater detail at a later date.

The noble Lord, Lord Owen, asked what would happen in the event of a pandemic. If I could direct the noble Lord to Clause 44 of the Bill, he will read of the extensive powers the Secretary of State has to take control in an emergency-and this even extends to foundation trusts, which is a power not available to Ministers today.

The second issue raised with regard to the Secretary of State turns us to Clause 4, the duty of autonomy, and I am sorry that what I have said on this has been the subject of concern. My noble friends Lady Williams and Lord Marks highlighted this clause as raising the possibility that it will lead to an unacceptably hands-off approach on the part of the Secretary of State. We do not think that that is the case. However, I would like to repeat the commitment made by my honourable friend the Minister for Care Services at Report stage in the other place, about Clause 4, namely that,

If there is an amendment which will improve the Bill, we will make it. This offer stands, irrespective of how the House votes on the amendment tabled by the noble Lord, Lord Owen, and I hope that this gives reassurance to those who have been concerned on this point. I also today commit to host a meeting with all interested Peers-including the noble and learned Baroness, Lady Scotland, if she wishes-to discuss any matters around accountability further so that we can all better understand each other's positions and concerns, but also inform Committee discussions on these vital issues.

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The second concern I would like to turn to is that of competition. Many speakers, such as the noble Baronesses, Lady Kennedy and Lady Billingham, fear that the Bill could lead to an American-style market free-for-all, with competition harming patients' interests. Others, such as the noble Baroness, Lady Murphy, have claimed that we are actually doing too much to shackle the benefits of competition, and that we should look at removing some of the safeguards that we have put in place.

Let me be clear about what the Bill does and does not do. The Bill does not introduce a free market for all. It does not change competition law, or widen the scope of competition law. It does introduce a framework in which competition can be effectively managed as a means to benefit patients. That competition can work in the interests of patients is well backed up by academic research, such as the studies quoted by the noble Lord, Lord Warner, on mortality rates, and by noble friend Lady Cumberlege on inequalities. The Bill does not do anything which might or could lead to the privatisation of the NHS. What it does do is create a level playing field between different providers, putting an end to the subsidies and guarantees given to the private sector under the last Government.

The Bill will not mean that competition will trump integration. The safeguards and duties that it places on Monitor, in particular its core duty towards the interests of patients, will ensure that Monitor supports integration. The balance that we have struck in this Bill, once more returns to the North Star-that graphic metaphor from the noble Lord, Lord Kakkar-namely, patients. We believe that competition has a place, but only as a means to an end, the end being to improve quality and efficiency.

The noble Lord, Lord Darzi, made the case, as usual, very strongly, by talking of competition as a means to spark creativity and light innovation. However, it does require safeguards to ensure that other factors such as integration, service continuity and the prevention of cherry-picking are given due weight-and those safeguards are there.

I turn next to concerns raised that the Bill creates too much complexity, meaning that care will be fragmented, and decision-making harder to achieve, and we heard that concern expressed this morning by the noble Baroness, Lady Pitkeathley. Let me first be clear about the different organisations abolished and created by this Bill. The Bill abolishes the 151 primary care trusts, half of the national arm's-length bodies, and the 10 strategic health authorities. It establishes clinical commissioning groups which are currently growing out of existing practice-based commissioning groups. Likewise, local HealthWatch will build on existing local involvement networks, and HealthWatch England will be situated within the Care Quality Commission. I can reassure the noble Lords that the Bill contains a number of mechanisms to ensure independence of HealthWatch both locally and nationally. Monitor will be expanded to become a provider regulator, and the NHS Commissioning Board, led by Sir David Nicholson, will be a new body, but it will draw on

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the best aspects of a range of departing organisations. We envisage that it will host the existing clinical networks and the new advisory clinical senates.

Concerns were raised that the board could have too much power over commissioning groups. I genuinely agree that the Bill contains sufficient safeguards against this, but I do of course look forward to discussing this issue further. Overall, administration costs across the health system will be cut by one-third in real terms by 2014-15-this will save £4.5 billion by the end of the Parliament alone-all to be reinvested in front-line patient care.

A number of noble Lords have asked who takes the decisions. This Bill represents a significant step forward by directly conferring responsibilities in statute, rather than having them all delegated in an opaque way through the Secretary of State. This clarity extends to how different organisations should work together and the Bill contains significant new provisions regarding collaborative working. In her opening remarks, the noble Baroness, Lady Thornton, expressed her support for health and well-being boards, which will be hosted by local authorities. Other speakers have endorsed the plans for joint strategies to be determined and agreed by all relevant local services. Many speakers have raised service configuration, which we can happily debate. However, I believe that the Bill supports effective, clinically led reconfigurations led locally but with the NHS Commissioning Board playing an important leadership role.

A number of speakers spoke about particular service areas within the NHS and how the reforms would impact on them. Let me start by reassuring noble Lords that those working in general practice will not be commissioning in isolation. Clinical commissioning groups must obtain appropriate advice from a broad range of professionals. This would, for example, include experts in mental health, children's health, learning disabilities or other areas as appropriate. Given this duty to obtain advice, we do not think that it is necessary to expand the membership of clinical commissioning groups' governing bodies further than is currently set out in the Bill, which was a suggestion made by a number of speakers, including the right reverend Prelate the Bishop of Bristol. Indeed, if all the additional representatives suggested in this debate alone were to join the governing body it would quickly become unwieldy and unworkable. Clinical advice would also come through other forms, such as clinical networks, which I can confirm to my noble friend Lord Clement-Jones will continue, and new clinical senates. These mechanisms should ensure that specialist advice at all levels of the NHS is there. They are not extra layers of bureaucracy.

Many speakers have stressed the importance of public health and health inequalities and the changes proposed by this Bill. I completely agree that these are fundamental issues. Our plans seek to create a new focused approach for public health, protected by a ring-fenced budget. The noble Baroness, Lady Gould, asked a range of questions about the detail behind our arrangements and I will respond to her in writing. But in terms of inequalities, this Bill, for the first time, puts

12 Oct 2011 : Column 1708

in place specific duties on key relevant bodies to act with a view to reducing health inequalities. That should surely be seen as welcome.

One or two noble Lords, including the noble Baroness, Lady Royall, raised the removal of a foundation trust private income cap and feared that it could lead to longer waiting lists for NHS patients. I am confident that it would not have this effect. My right honourable friend the Minister for Health said on Report in the other place that,

I hope that provides some reassurance. I look forward however to further debates on that issue.

The future of both education and training, and research, were raised by a number of speakers. The noble Lord, Lord Walton, and my noble friend Lord Willis spoke passionately about the benefits of research. The noble Baroness, Lady Masham, and my noble friend Lord Ribeiro spoke equally passionately about innovation. As Minister responsible for research and innovation, I fully share this passion and I hope that I can reassure noble Lords that we are taking all necessary steps to ensure that we act quickly on taking forward the report of the Academy of Medical Royal Colleges, including future legislation.

Such legislation will also take forward the future arrangements for education and training but I can confirm to the House that we will table a new duty for the Secretary of State with regard to education and training in time for Committee. In addition, as both issues have attracted so much interest, I will ensure that new fact sheets on both topics are produced by officials in the Department of Health and made available prior to Committee. Again, my door is open to noble Lords to discuss any or all those issues.

Several noble Lords called for healthcare assistance to be given full statutory regulation. While I accept the need for action in this area, I cannot agree that statutory regulation is the best way to proceed. Our view is that employers of such workers have to take responsibility for the quality of services provided, including the use of existing systems. In addition, when tasks are delegated by qualified professionals, this has to be done with appropriate and effective supervision. I am of course more than willing to discuss this issue further as the Bill proceeds.

I turn now to the procedural concerns raised during the debate and to the Motions tabled by the noble Lords, Lord Owen and Lord Rea. First, a number of speakers questioned what they call the democratic mandate for this Bill claiming that the Bill's proposals were not in manifestos or the coalition agreement. Both these claims are untrue, as any quick read of these documents will show.

What is true, as my noble friend Lord Rodgers pointed out, is that sheaves of documents covering every detail of policy were set out in July last year when we published the White Paper and associated consultation documents. This was followed up by a period of public engagement, a lengthy Government

12 Oct 2011 : Column 1709

response, the listening exercise in the spring of this year and 40 sittings in Committee in the other place. At all stages, we have been open and transparent about our plans. This approach will of course continue and I welcome the proposal of the noble Lord, Lord Kakkar, in terms of ensuring effective post-legislative scrutiny. I can confirm today that while five years would normally elapse prior to post-legislative scrutiny of a Bill, we will bring that forward for this Bill to three years. As a result, I simply cannot accept the amendment in the name of the noble Lord, Lord Rea. I respectfully suggest to your Lordships that to vote for that amendment would run directly counter to the proper role and functions of this House.

Secondly, concerns have been raised about what has been seen as implementation of the Bill's proposals prior to Royal Assent. I suggest that this fear is unfounded. Preparatory work is ongoing to implement the Government's plans, such as the creation of clinical commissioning group pathfinders. This is all within the current legal framework. However, such powers can get the reform only so far; hence the need for this Bill. For example, while early implementers of health and well-being boards are emerging all over the country, until this Bill is passed they lack all the statutory powers that we think are essential for them to operate.

Finally, I turn to the Motion in the name of the noble Lord, Lord Owen. I do not feel that a further Select Committee would add significant value to our normal processes. A Committee of the Whole House with all interested Peers, including constitutional experts in attendance, would in my view be the best forum to ensure effective and thorough scrutiny. Perhaps I may say that this Second Reading debate has amply proved that. My noble friend Lord Rodgers put it well in saying:

"The House is now able to make fully informed decisions ... we should not duck ... them further".-[Official Report, 11/10/11; col. 1543.]

Furthermore, I agree with my noble and learned friend Lord Mackay of Clashfern that the early clauses of this Bill, which cover the Secretary of State's duties and powers overarch the rest of the Bill. It is right for a Committee of the Whole House to consider them at the outset of the deliberations.

I engaged in discussions with the noble Lords, Lord Owen and Lord Hennessy, to see if there was a way to accommodate their proposals for a special Select Committee. The only way, I feel, that such a novel procedure could work would be to put a clear end point on both the Select Committee and the Committee of the Whole House. It is not sufficient to put a time limit solely on the Select Committee. This Session, all pre-legislative scrutiny committees set up in this House have required time extensions.

While the noble Lord, Lord Owen, says in perfectly good faith that the committee will report before Christmas, there is no way in which this House can make that truly binding without an end date on both committees. The key point is that if the Select Committee needed more time or if it recommended amendments affecting parts of the Bill-

12 Oct 2011 : Column 1710

Lord Peston: Is the Minister certain that there is no way that the amendment to which he refers can be made to work so that the job gets done in time? That bears no resemblance to my knowledge of how this House works. The House can end things at any time it wants to.

Earl Howe: My Lords, that is the firm advice that I have received.

Lord Hunt of Kings Heath: My Lords, in my experience, if this House wants something to happen it finds a way for it to happen. Even at this late stage, I ask the noble Earl to give careful consideration to this. I have already said from this Bench that we are happy to meet through the usual channels to agree a date by which the Committee stage will be finished on the Floor of the House. I am sure that the noble Lord, Lord Owen, as far as he is able, will wish to say that he is happy for the special committee to finish by a certain date. I do not believe that it is impossible for agreement to be reached on this.

Earl Howe: My Lords, I very much welcome that offer, which has come rather late in the day. My understanding is that discussions over the timetabling of the Bill have taken place over the past week. However, we are faced with the amendment that is on the Order Paper and must vote on it as it stands.

Baroness Royall of Blaisdon: I beg your Lordships' pardon but I have to say that we are and have been entirely open to this suggestion. I was not aware of it until yesterday. I give the House my pledge that the Bill will come out of Committee by mid-January, which is, I think, when the noble Earl was thinking of. We should be delighted to give our firm assurance that the Bill will come out in mid-January.

Earl Howe: My Lords, that is an extremely welcome offer, which we accept. I am grateful to the noble Baroness.

It is right for me to conclude, with your Lordships' agreement. I bring this extended debate to an end by returning to the point of the Bill, which is to improve the quality of care for patients. For all the generosity of the noble Baroness's offer, the amendment of the noble Lord, Lord Owen, would not help patients. It would insert additional uncertainty into the parliamentary passage of the Bill. As my noble friend Lord Fowler rightly emphasised, the amendment of the noble Lord, Lord Rea, would leave the NHS in far greater uncertainty. It would also leave it unprotected from both the present and future challenges that it faces.

1.42 pm

Lord Rea: My Lords, after our marathon debate, I congratulate the noble Earl on his continued clarity and stamina, and the same applies to my noble friends Lady Thornton and Lord Hunt. Time presses, so I shall be very brief, although there are a thousand things that I would like to say in reply to the Minister and to those who have spoken.

12 Oct 2011 : Column 1711

I have sensed widespread unease about the Bill among your Lordships, and this alone would be enough to justify my calling for a Division. However, more than that, like all your Lordships I have also heard a tumultuous call from the country not simply to amend the Bill but to reject it entirely. I think that the Bill is virtually unamendable-certainly in the timetable that we have been offered, even if it were extended, and even if the amendment of the noble Lord, Lord Owen, were accepted. Whole swathes of the most senior members of my profession want the Bill to be sent back to the drawing board so that the National Health Service can get back to work without a sword of Damocles hanging over it. How can the Minister expect to get high productivity from a disaffected workforce?

I end by quoting Sir Roger Boyle, the retiring National Director for Heart Disease and Stroke, whose work was praised by my noble friend Lady Andrews yesterday. He says:

"All the improvements in cardiovascular care have come from collaboration and leadership. Where is the evidence that competition between commercial providers makes a blind bit of difference to cost efficiency and quality? The competition I want to see is between clinicians vying with each other over whose service is the best. If you try and improve care by getting United Health to provide the service that would be crazy.

I absolutely think the NHS is the best public service in the world. It is horrific that its future is threatened".

I ask noble Lords to accept my amendment, which asks the House to decline to give the Bill a Second Reading.

1.45 pm

Division on Lord Rea's amendment

Contents 220; Not-Contents 354.

Division on Lord Rea's amendment disagreed.

Division No. 1


Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Ladyton, L.
Campbell of Surbiton, B.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Abersoch, L.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.

12 Oct 2011 : Column 1712

Donaghy, B.
Donoughue, L.
Drake, B.
Drayson, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Freyberg, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Glasman, L.
Golding, B.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grantchester, L.
Greaves, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hall of Birkenhead, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Hattersley, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kestenbaum, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
McAvoy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Mandelson, L.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Monks, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Myners, L.
Noon, L.
Nye, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Palmer, L.
Parekh, L.
Patel of Bradford, L.
Pendry, L.
Peston, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rees of Ludlow, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Robertson of Port Ellen, L.
Rogan, L.
Rogers of Riverside, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stern, B.
Stern of Brentford, L.
Stevenson of Balmacara, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]

12 Oct 2011 : Column 1713

Turner of Camden, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Baglan, L.
Williams of Elvel, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Norwood Green, L.
Young of Old Scone, B.


Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Allenby of Megiddo, V.
Alliance, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashcroft, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Bell, L.
Benjamin, B.
Berridge, B.
Best, L.
Bew, L.
Bichard, L.
Birt, L.
Black of Brentwood, L.
Blackwell, L.
Blair of Boughton, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Boyce, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Bristol, Bp.
Brittan of Spennithorne, L.
Broers, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Butler of Brockwell, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carrington, L.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Chidgey, L.
Chorley, L.
Clement-Jones, L.
Cobbold, L.
Coe, L.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Crisp, L.
Cumberlege, B.
De Mauley, L.
Deben, L.
Deech, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dundee, E.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Emerton, B.
Empey, L.
Erroll, E.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman, L.
Feldman of Elstree, L.
Fellowes, L.
Fellowes of West Stafford, L.
Flather, B.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Fritchie, B.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
German, L.
Glenarthur, L.
Glendonbrook, L.
Gold, L.
Goodhart, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Peckham, L.

12 Oct 2011 : Column 1714

Harris of Richmond, B.
Haskins, L.
Henley, L.
Hennessy of Nympsfield, L.
Heseltine, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussein-Ece, B.
Inglewood, L.
Jacobs, L.
James of Blackheath, L.
Janvrin, L.
Jay of Ewelme, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kakkar, L.
Kalms, L.
Kerr of Kinlochard, L.
Kilclooney, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Laming, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lee of Trafford, L.
Leicester, Bp.
Lester of Herne Hill, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Lloyd of Berwick, L.
London, Bp.
Loomba, L.
Lothian, M.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
Lytton, E.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maginnis of Drumglass, L.
Mancroft, L.
Maples, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Hendon, B.
Montagu of Beaulieu, L.
Montgomery of Alamein, V.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Murphy, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbourne, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
O'Loan, B.
O'Neill of Bengarve, B.
Oppenheim-Barnes, B.
Oxburgh, L.
Palmer of Childs Hill, L.
Palumbo, L.
Pannick, L.
Parminter, B.
Patel, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Prashar, B.
Quirk, L.
Ramsbotham, L.
Rana, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rees-Mogg, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton of Mount Harry, L.
Ribeiro, L.
Risby, L.
Ritchie of Brompton, B.
Rix, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Saatchi, L.
St John of Bletso, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Foscote, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.

12 Oct 2011 : Column 1715

Shephard of Northwold, B.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Sterling of Plaistow, L.
Stevens of Ludgate, L.
Stewartby, L.
Stoddart of Swindon, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taverne, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Turnbull, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakefield, Bp.
Wakeham, L.
Waldegrave of North Hill, L.
Walker of Aldringham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warsi, B.
Watson of Richmond, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Willis of Knaresborough, L.
Wilson of Tillyorn, L.
Wolfson of Aspley Guise, L.
Wolfson of Sunningdale, L.
York, Abp.
Young of Graffham, L.
Younger of Leckie, V.

Bill read a second time and committed to a Committee of the Whole House.

2.07 pm

Earl Howe: My Lords, I beg to move that the Bill be committed to a Committee of the Whole House.

Amendment to the Motion

Moved by Lord Owen

Lord Owen: I shall try to be as brief as I can, but it is worth reminding the House that the procedure which I am advocating is not without precedent. On 8 March 2004 on the Constitutional Reform Bill, a Motion was moved by the noble and learned Lord, Lord Lloyd of Berwick, to leave out after,

12 Oct 2011 : Column 1716

and insert "a Select Committee". I cannot avoid a little teasing by saying that the noble Earl, Lord Howe, voted for the Motion. Indeed, before he starts laughing, so did the Leader of the House, the noble Lord, Lord Strathclyde, and the noble and learned Lord, Lord Mackay of Clashfern, a man I have the utmost respect for and who has given a very compelling speech, voted for it too.

Lord Mackay of Clashfern: If I may say so, that was about committing the whole Bill to a Committee of the whole House and it is not, I think, a precedent for what the noble Lord is advocating now. It was quite different.

Lord Owen: I do not want the noble Lord, Lord Newton of Braintree, to escape either. Let me deal with that question. If we had moved this amendment regarding the whole Bill, everybody would have said that it was a blocking mechanism. Everybody would have said that we were effectively voting against Second Reading. It will not, I hope, have escaped the notice of noble Lords that I did not vote against Second Reading. Were I ever to vote against a Bill in this House, it would be after we had examined it and it is that examination which is now the question. Can we improve the Bill? So we entered into discussions to find a new way of dealing with it-it was done by my noble friend Lord Hennessy-and, to cut it very short, we reached a basic agreement on Wednesday night. We were asked to let the Government take this into consideration and we waited. In retrospect, we should probably have put the Motion down on Wednesday night.

We met again with the Leader of the House at 3 o'clock on Monday. The Leader of the House said, perfectly reasonably, that he could go along with this as long as he knew that the Bill would not be delayed. My noble friend and I said we thought it was absolutely reasonable that to protect the business of the House they wanted this Bill before the new Session. We had already made it clear that this would have to be reported out from Select Committee by 19 December, and that was acceptable. The clerks tell me they have to report it out. They may say they want more time but there has to be a report. So I think we have dealt with one of the problems.

The other problem was that we were not able to commit the House to the other date, which was when it would come out of the House. The shadow Leader of the House has made it very clear that if this Select Committee procedure went through, this Bill would finish its processes and come out by the middle of January. She was also generous enough to say that she would go along with a timetabling Motion that would not detract from the days given to debate on this. As far as possible, I thought it was understood that it would not detract from the days that were overall given to this House. It is for her to say, of course, because these are not matters that a Cross-Bencher can or should be involved in. However, it is reasonable for this House to explain that it needs a lot of consultation and a lot of time for this Bill. I am not going to get into the timing directly-maybe the shadow Leader would like to.

I would like to explain a little bit more about the thinking of my amendment and deal with the point about it being exceptional. When that Constitutional

12 Oct 2011 : Column 1717

Reform Bill was referred, parliamentary counsel was made available to it. That is why in this Motion, and again it was discussed, we ask-because we can only make a request, but the noble Earl, Lord Howe, made it pretty clear that he would support it-that the services of parliamentary counsel would be made available.

Let me deal with the question of whether this is a better procedure than just leaving it to the normal procedures of the House, on the Floor. The most reverend Primate was correct when he argued why a Select Committee procedure would be the best way. A number of amendments need to be made to the Secretary of State's powers and they have to be connected. It is a very complex and very long Bill. It is worth saying that this needs very careful study.

Now, what is this issue? The third leader in the Times today is entitled:

"The Bedpan Problem: Who's in charge of the NHS?"

We all know the famous remark made by Aneurin Bevan that if a bedpan is dropped in a hospital corridor the reverberations should echo around Whitehall. We all know that this is an issue that has long faced the NHS, since 1948, and we all know that increasingly, with its complexity, size and the changes in medicine, the Secretary of State for Health could never manage the health service. I have made it clear that I think this problem has to be dealt with and some adjustment of what is said, even in the 2006 Act, might not be unreasonable, but it would have to be coherent; it would have to be put together by parliamentary draftsmen who know the Bill. I think that would cut down the amount of time we might wish to spend on the Floor of the House on this particular issue. Goodness knows, there are a number of other issues that will need a lot of time to give this full coverage.

Those noble Lords who genuinely think that they will get more out of a procedure on the Floor of the House should look at what happened to the amendments that were moved in Committee in the House of Commons on this question. Not a single one was accepted in the initial stages; it was only when the pause took place. That is already unprecedented. I agree there should not be delay but a matter of a week or two is a little rich coming from a Government who are responsible for taking it out of Committee in the House and having a long consultation. I praise the work of the forum.

The medical profession has had a good go at this Bill and I am not complaining about that. I do not want to be on the Select Committee myself. The work should be carried out by people with a legal frame of mind and a constitutional frame of mind who are used to looking at a Bill as a whole and trying to bring some coherence to it. That is what lay behind the thinking of myself and my noble friend Lord Hennessy.

This is not a delaying measure. If I was opposing the amendment, I would be saying that it was a delaying measure but it is clearly not. Two dates have been agreed. If it goes to a Select Committee, it has to report back by 19 December and if it goes to the Floor of the House simultaneously that will not cause delay. The shadow Leader of the House has given her word

12 Oct 2011 : Column 1718

that in those circumstances-she stressed "in those circumstances"-the Bill would come out by the middle of January. There is no delay so let us not have that argument. It is a perfectly fair argument for people who wish to spend time on the Bill purely on the Floor of the House. I believe that this proposal would supplement the scrutiny of this Bill.

There is another issue I wish to draw attention to, particularly for those who have not been in the debate. We need to remember that an all-party Select Committee of this House unanimously reported to this House its concerns about this Bill. Those words and its concerns are reflected in my amendment. They are not my words-they come directly from the Constitution Committee. We also had on the morning of the debate a letter from the noble Earl, Lord Howe, which should be read by those who think that by using normal procedures changes will be made on this issue. He said about the Bill,

You have to be a super-optimist if you think that you are going to get great changes. Only the weight of an all-party and probably unanimous Select Committee will give the weight to make this change.

2.15 pm

Lord Ashdown of Norton-sub-Hamdon: I apologise to the noble Lord and the House for not being here yesterday to listen to the debate. A member of my family spent yesterday in the care of the National Health Service and I felt it was more appropriate that I was with her than here.

The case by the noble Lord that lies behind this amendment is that a Select Committee is better than the Floor of the House in dealing with a Bill that comes to us which is defective in certain ways. He draws a comparison with the House of Commons but surely that does not take into account that the House of Commons is not constructed as we are constructed and does not have the same role as we have. Our role is as a revising Chamber. I say to the honourable Gentleman-forgive me, I mean the noble Lord-that I find it difficult to understand why a Select Committee of which few of us can be members will be better at holding this Bill to account than dealing with it in the circumstances of this House where all of us can be involved.

Here is the question. If it is the noble Lord's case that a serious and complex Bill brought to us in a defective manner from the House of Commons is not able to be dealt with on the Floor of this House but must go to a Select Committee, what on earth is our function?

Lord Owen: It would have been easier if the honourable Gentleman-I mean the noble Lord; I am used to thinking of him in another place-had been able to spend the time here and heard the debate. I do not want to delay the House. I gave way to him because, as a former Leader of the Liberal Democrats, it is important

12 Oct 2011 : Column 1719

that his voice should be heard but this is a question for the House as a whole and I do not wish to delay any longer. I leave this for the judgment of the House.

Baroness Royall of Blaisdon: My Lords, I crave the indulgence of the House to confirm one point that was clarified by the noble Lord. I do not advocate any timetabling Motion: that would not be appropriate for the House. I give the assurance that, were the noble Lord's amendment to be agreed, my Benches would wish the Bill to be out of Committee by mid-January. However, if the amendment is not accepted, it will be right and proper for the usual channels to discuss the appropriate number of days needed in the light of this excellent Second Reading debate. I cite the excellent speeches made by many noble Lords, including the wise words of the noble Lord, Lord Walton of Detchant, who spoke before me last night and who said that enough time must be given. He is absolutely right. I have no intention of delaying the Bill. My intention is to ensure that there is proper agreement between the usual channels on the appropriate amount of time that the Bill needs in Committee.

Earl Howe: My Lords, I will make three very brief points. The provisions that the noble Lord, Lord Owen, asks us to send to a special Select Committee affect the entire Bill. The twin-track approach that he advocates carries a major risk: the potential disconnect between the special Select Committee and the Committee of the whole House. The Select Committee might recommend amendments to parts of the Bill that have already been debated by the Committee of the whole House. The result could be that, notwithstanding the offer made in good faith by the noble Baroness, Lady Royall, we could see a slippage of the timetable of the Bill that would be most unwelcome.

I repeat my assurance that I am entirely open to considering the concerns that have been raised about the issue and to make any necessary amendment to put it beyond doubt that the Secretary of State will remain responsible and accountable for a comprehensive health service.

2.22 pm

Division on Lord Owen's amendment.

Contents 262; Not-Contents 330.

Amendment disagreed.

Division No. 2


Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Bannside, L.
Barnett, L.
Bassam of Brighton, L.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Best, L.
Bhattacharyya, L.
Bichard, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blair of Boughton, L.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.

12 Oct 2011 : Column 1720

Bradley, L.
Bragg, L.
Bristol, Bp.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Corbett of Castle Vale, L.
Corston, B.
Coussins, B.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Abersoch, L.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Donaghy, B.
Donoughue, L.
Drake, B.
Drayson, L.
Eames, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B. [Teller]
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Freyberg, L.
Fritchie, B.
Gale, B.
Gavron, L.
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