19 Mar 2012 : Column 625



19 Mar 2012 : Column 625

House of Lords

Monday, 19 March 2012.

2.30 pm

Prayers-read by the Lord Bishop of St Edmundsbury and Ipswich.

Economy: Quantitative Easing

Question

2.36 pm

Asked By Lord Barnett

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the independent Monetary Policy Committee has operational responsibility for monetary policy. The MPC judged in February 2012 that without further monetary stimulus it was more likely than not that inflation would undershoot the 2 per cent target in the medium term. The Chancellor agreed that an increase in the asset purchase ceiling would provide the MPC with the scope to meet the inflation target in the medium term and gave his authorisation to proceed.

Lord Barnett: My Lords, I thank the Minister for that Answer. That increase was initiated by the Monetary Policy Committee but, under the terms of the original agreement in 2009, the Chancellor had to give his consent-which I assume he did. The current Chancellor took over that policy. As I understand it, he said at the time that it was a "leap in the dark", designed because all other government policy had failed. Does he still feel that that is the case, or has he changed his mind? What does he now expect from QE?

Lord Sassoon: My Lords, I reiterate that the MPC has operational control and freedom here. The Government, on behalf of the taxpayer, indemnifies the Bank against losses, so of course any increase in the limit of the asset purchase facility has to be authorised by the Treasury. As to what people's quotes might be, I know that I get into trouble if I start questioning whether the noble Lord, Lord Barnett, has correctly quoted my right honourable friend. I am sure that he did, but in completely different circumstances. The situation now is that we have tight fiscal policy. Against that discipline, the monetary policy of the Bank of England can be conducted with confidence. Tight fiscal discipline and loose money is the policy prescription. I suspect that that was not the policy prescription when my right honourable friend made that quote.

Lord Bilimoria: My Lords, can the Minister tell us of the effect of QE in helping lending flow through to SMEs? We hear about feast and famine with regard to lending to SMEs. Has QE really helped in banks lending to SMEs?



19 Mar 2012 : Column 626

Lord Sassoon: My Lords, the estimate of the effect of QE was set out in the Bank's Q3 quarterly bulletin in 2011. The Bank estimates that quantitative easing raised real GDP by around 1.5 to 2 percentage points, so it has had a very significant impact on the real economy. As to the flow of credit to SMEs, that is not the purpose of quantitative easing. The purpose of quantitative easing, as I have attempted to explain, is for the Bank of England to meet the 2 per cent medium-term inflation target. Credit easing is a government policy and, in the next few days, details of the £20 billion national loan guarantee scheme will be unveiled. It is targeted at credit easing for SMEs, which is still a very important issue.

Lord Newby: My Lords, will the Minister underscore his last comment in that credit easing is now seen as crucially important in getting funding into SMEs? Can he confirm reports in the papers yesterday that the overall impact or scope of credit easing might not be the £20 billion which he has just mentioned but might increase over time to £40 billion?

Lord Sassoon: My Lords, I am certainly not going to pre-empt any announcements this week of that kind or any other, or I may not be here to answer the next Question at the Dispatch Box. I think that the £20 billion, which has already been announced, and reducing the interest rate that SMEs would otherwise have to pay by the order of 1 per cent would be a very good start.

Lord Peston: My Lords, can I ask the Minister whether he agrees-which he seemed to say-that quantitative easing is part of monetary policy? If it is part of monetary policy, what business is it of either the previous Chancellor or the present one to claim that they have a decision-making role in this matter, since the Bank of England Act makes it absolutely clear, when discussing the reserved powers of the Treasury, that they can intervene only if they lay before both Houses of Parliament an order authorising them to intervene? Have not the Chancellor of the Government whom I supported and the present Chancellor both been acting illegally?

Lord Sassoon: No, my Lords, even the previous Chancellor, I am happy to say, was not acting illegally in this matter and the current Chancellor certainly is not. As I have already explained to the noble Lord, Lord Barnett, the only reason for the Chancellor having to authorise this is because HM Government indemnify the Bank for any losses that it may suffer by exercising purchases under the asset purchase facility.

Lord Pearson of Rannoch: My Lords, does the noble Lord agree that over history printing money has usually, if not always, led to inflation? If he does agree, can he tell your Lordships why quantitative easing will not do so this time?

Lord Sassoon: No, my Lords, I certainly will not. It has actually led to inflation already. In the estimates made by the Bank of England in the third quarter bulletin in September last year, it was estimated that quantitative easing had raised UK inflation by

19 Mar 2012 : Column 627

around 0.75 to 1.5 per cent. I firmly believe that the greater benefit of raising real GDP by around 1.5 to 2 per cent was what really mattered in the economic circumstances in which we find ourselves. Then the question is what happens to the unwinding of QE? The stock will be held and sold back into the market in due course.

Lord Eatwell: My Lords, the noble Lord's reference to growth of GDP is rather odd, since that is no responsibility of the Monetary Policy Committee. Its responsibility is for inflation and, as he said, it added to inflation last year which, as noble Lords will remember, was already at 5 per cent. How does the noble Lord judge the success of QE and how is it to be balanced against the decimation of the annuities of hundreds of thousands of pensioners as a result?

Lord Sassoon: My Lords, first it continues to be the judgment of the MPC that if it had not acted on this operation under the asset purchase facility inflation would undershoot the 2 per cent target in the medium term. I remind this House that inflation has already come down from 5.2 per cent on a CPI measure last September to 3.6 per cent in January and is expected by the Bank, and most other commentators, to fall very considerably during this year. The success of QE will be measured on the performance of inflation.

As to the question of savers and pensions, as the deputy governor, Charlie Bean, said on 21 February:

"While annuity rates have fallen, that is only part of the story. Those pension funds will typically have been invested in a mix of bonds and equities, with perhaps a bit of cash too. The rise in asset prices as a result of quantitative easing consequently also raises the value of the pension pot, providing an offset to the fall in annuity rates".

Banking: Accounting Standards

Question

2.45 pm

Asked by Lord Flight

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, following the financial crisis, the International Accounting Standards Board has taken steps to revise international valuation standards for complex financial instruments. The question of whether there should be a distinct accounting regime for banks was raised in the preliminary report of the Financial Reporting Council inquiry into going concern, chaired by my noble friend Lord Sharman. The panel is considering the response to this report at present. We await its final report with interest.

Lord Flight: My Lords, in reply to a question on 19 December the Chancellor of the Exchequer advised that there needed to be a debate about the role of IFRS in the banking crisis. On 19 January, the head of financial stability at the Bank of England commented in a speech that banks needed accounting standards

19 Mar 2012 : Column 628

other than IFRS. Does the Minister agree that IFRS contributed to the banking crisis, as it served both to exaggerate profits and capital in good times and vice versa in bad times, and is in need of review?

Lord Sassoon: My Lords, having a look at accounting standards in relation to banks is certainly significant. I would not go as far as saying that IFRS had a fundamental role in relation to the financial crisis. There is not significant evidence of that although, as I have had it rather neatly described, you could perhaps describe accounting standards as an accomplice after the fact rather than as being responsible. There are issues that very much need to be looked at. The review that the IASB is doing, very much with the encouragement of the G20, of the financial instruments standard known as IFRS 9, the work that the Financial Reporting Council is doing, which I have referred to, the inquiries coming out of your Lordships' committee and the most recent hearing last week will all contribute to an important ongoing debate.

Lord Lawson of Blaby: My Lords, is my noble friend the Minister aware that my noble friend Lord Flight is on to a very important point? It is quite clear that accounting standards have created a major reduction in stability in the banking sector. They had a major part to play, and IFRS has simply made this worse. Has my noble friend the Minister read the Hansard report of the debate in the Grand Committee of Wednesday last week, in which these matters were among those discussed? If not, will he please do so and will he also listen to what Mr Andy Haldane, the director of banking stability at the Bank of England, which is responsible for these matters, has had to say on them?

Lord Sassoon: My Lords, I have not read every word that was said in the Committee last week, but I have certainly read the very interesting remarks of my noble friend Lord Lawson of Blaby and the very challenging seven proposals that he made, many of which the Government are already acting on in the structure of banking and regulation. I do not dismiss this issue at all, but there is a tension between the transparency and other requirements of investors on the one hand and the requirements of prudential regulators on the other. There are very difficult issues of conflicting objectives here, which it may be impossible for one set of figures fully to reconcile. However, I take my noble friend's suggestions very much to heart.

Lord Eatwell: My Lords, as the noble Lord pointed out, the Financial Reporting Council is playing an important role in reviewing the IFRS proposals. However, the FRC also seems to be contemplating the abolition of the UK Accounting Standards Board. Do the Government agree with this, and will it not leave the UK without the expertise and credibility necessary to make an effective contribution to the international debate?

Lord Sassoon: My Lords, the structure of the various bodies that fall under the Financial Reporting Council is a matter for the Financial Reporting Council. I do not believe for one minute that anything it does to the structure of the number of bodies under

19 Mar 2012 : Column 629

the FRC will weaken the very distinguished and important contribution which the UK makes to international standard-setting.

Lord McFall of Alcluith: My Lords, has the fatal flaw not been the ability of banks and other financial institutions to book future projected income as profits-profits which did not materialise and on which bonuses were paid, thereby skewing the incentives of the whole financial sector industry? There is a time here for reassessment, and that is a black hole at the centre of these proposals.

Lord Sassoon: Again, this is an important issue. The Government have taken significant steps to increase both the transparency and the FSA rules around the payment of bonuses. However, we should be careful about this. First, it is worth noting that under UK GAAP, before IFRS was introduced, banks were required to account at fair value for their trading portfolios. Of course, accounting at fair value requires assets to be marked both up and down. It is certainly the case that under IFRS there were certain portfolios that previously would not have been counted as trading portfolios, which now are. However, we have to be very careful about attributing all that went on with banking bonuses to the accounting requirements. If I may suggest so, that was a small part of what was undoubtedly a series of inappropriate behaviours at the heart of the industry.

Lord Phillips of Sudbury: My Lords, given the importance of the matters to which my noble friend has alluded in answering this Question, might he put a plain Peers' guide to the intricacies of the various bodies he has enumerated in the Library?

Lord Sassoon: My Lords, I will see what I can do. I have mentioned everything this afternoon from the G20 through to the Bank of England, the FSB and the FRC. I will see what I can do, but it is a big ask.

UN: Sustainable Development and Family Planning

Question

2.52 pm

Asked By Baroness Tonge

Baroness Northover: My Lords, the coalition Government's positions on sustainable development and family planning are clear. We will be emphasising the links between them, both in the preparations for and during the Rio+20 conference.

Baroness Tonge: I thank my noble friend for that reply. I congratulate the Government on their commitment to family planning and to stabilising the world's population by choice. This is essential for sustainable development. However, will the Minister confirm that the Government

19 Mar 2012 : Column 630

will seek to have family planning included in the post-millennium development goals framework when it is discussed?

Baroness Northover: The noble Baroness has contributed enormously in this area and I thank her very much for the tribute paid to the department for its expansion of work on this issue. The Government are well aware of the background to the initial MDG negotiations. Discussions are very much in the early stages for a post-MDG framework post-2015. The UK will work to ensure that all the relevant development issues are included in the most appropriate way possible.

Baroness Kinnock of Holyhead: My Lords, it is welcome news that the European Union plans to propose a new section to the Rio+20 outcome document to include population and health, and reproductive health and contraception. Will the Minister assure the House that efforts will be made by DfID to ensure that the delegation to the Rio+20 conference includes a representative who will be able to champion and lead on these issues, and will also be able to ensure that the linkages between population, reproductive health and family planning with sustainable development are understood?

Baroness Northover: My Lords, I will take that specific suggestion back. I point out to the noble Baroness that the Deputy Prime Minister is leading this delegation to Rio and I am very pleased that that is the case. She will know how he has emphasised the importance of placing women and girls centre stage with regard to development, which is what is required here.

Baroness Afshar: My Lords, is the Minister aware that the most effective family planning in the Third World comes through education-that is what makes women into an asset rather than a liability-and that preventing women having children is not the best way of approaching this? This is not a medical matter but a matter of society providing education. What plans are there for helping with girls' education so that they can progress?

Baroness Northover: The noble Baroness is right. This is a circular issue: where girls have more access to education you see the birth rate coming down, and where the birth rate is coming down girls have more access to education. When families are able to choose, they tend to choose to have fewer children and to invest more in them, and that certainly includes education.

Baroness Gardner of Parkes: My Lords, is it not a fact that, in these countries where health standards are improving and children live longer, there is no longer any need to have a very large family because so many die very young? This comes back to the issue raised by the noble Baroness, Lady Afshar; that educating mothers, in particular, in health processes and in how to care for their children and for their health will have an effect.

Baroness Northover: My noble friend is right, and I emphasise again the importance of investing in education, which then has the effects that she is talking

19 Mar 2012 : Column 631

about. I note also what are described as the demographic dividends: if you have fewer children who are dependent and therefore an expansion of the working-age population, there is an economic benefit to the countries in question. That is regarded as one of the factors in the development of the east Asian countries in particular.

Lord Harris of Haringey: My Lords, does the Government's commitment to education on family planning and contraception around the world extend to education in schools in this country, particularly academy schools and so-called free schools? Will the Government confirm that they will follow a curriculum that has a full range of education including in respect of family planning and contraception?

Baroness Northover: My Lords, that question is slightly wide of scope but I refer the noble Lord to the Answers given by my noble friend Lord Hill assuring the House that this area is extremely important wherever it is found.

Baroness Hussein-Ece: My Lords, is the Minister aware that, following the Somalia summit hosted by the Prime Minister last month, it was agreed that security and justice were essential both to a successful political process and to development, yet when I was part of the recent British IPU delegation to the UN Commission for Women last month, we were told by NGOs there that Somali women would not be part of the delegation to Rio as security is "not an issue for women"? Does the Minister agree with me and with the UN Women Executive Director Michelle Bachelet that listening to and supporting rural women is fundamental to ending poverty? What representations will Her Majesty's Government be making to address this?

Baroness Northover: My noble friend is right. Rural women and girls currently have limited access to all sorts of resources. Often it is difficult for them to participate in conferences like this, yet it is very important that they do. Ultimately, of course, it is for the Governments themselves to determine the make-up of their delegations. We can but encourage and make the points that my noble friend has made about the importance of this issue.

Viscount Craigavon: My Lords, while accepting that education is extremely important in this area, does the Minister agree that there is already an expressed and unmet need of over 200 million couples for contraception and family planning? She mentioned in her Answer what we wanted to talk about at the summit, but is this subject actually on the agenda, or have we still got to get it on the agenda?

Baroness Northover: It is one of the issues that we are flagging up. The noble Viscount will know that DfID is hosting a large conference in July on this. It is part of the emphasis that we wish to make in development generally and, of course, it is extremely relevant to Rio.



19 Mar 2012 : Column 632

Libya

Question

3 pm

Asked By Lord Judd

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we share the transitional Government's desire for a stable, prosperous and united Libya. This will be most effectively achieved if all groups are represented and have a voice. We look forward to elections in June, which provide an opportunity to achieve this goal. As in any democratic process, we expect groupings to be represented on a variety of themes. This may include tribal factors, but also regional, ethnic, gender and other political factors.

Lord Judd: I thank the Minister for that Answer. Does he agree that this underlines the imperative of being certain that, when intervention is made abroad, there is the most thorough study of the history and underlying social structural realities of the country concerned? In this context, what have we learnt from Iraq and Afghanistan that is of relevance to the situation in Libya?

Lord Howell of Guildford: Policy-makers seek to learn at all times, but against the noble Lord's experienced comment I must put the rival comment that circumstances differ enormously in different situations, events, times of history, and as a result of the different histories and past of the countries concerned. We faced in Libya a unique situation: a country that had been in tyranny, had visited terrible crimes on this country, and that was on the verge of further massacres. We should be glad of and applaud the courage of my right honourable friend the Prime Minister and other Ministers when they decided to support from the air the opposition in Libya at the time. It has brought a much happier Libya, as all the statistics show, and it has defied all the so-called experts, who a year ago said that nothing would work and that it would be a stalemate and a disaster. It is nothing of the kind.

Lord Avebury: My Lords, my noble friend said last July that the Tuaregs should be able to enjoy the full benefits of citizenship and that we had made representations to the transitional national council to this effect. What steps is the TNC now taking to confer citizenship not just on the Tuaregs but on other tribes who were deprived of documentation under the dictatorship, such as the Toubou, the Awlad Suleiman and the Shaama people? Have we also asked the TNC to amend as a matter of urgency Article 3 of the electoral law, which provides that voters must have held citizenship for at least 10 years? Otherwise, some 200,000 people may be deprived of the vote in the June elections.

Lord Howell of Guildford: We have already advised on the benefits of a democracy that allows full rights for voting for the Tuaregs and all Libyans; and we will continue to do so. As to the particular issue of Article 3,

19 Mar 2012 : Column 633

I cannot tell my noble friend whether we have raised that specific matter in dialogue with the Libyan Government, but I will seek to ensure that Article 3 is raised if it has not been already.

Lord West of Spithead: My Lords, I supported the action in Libya. It was the right thing to do. However, further to my noble friend Lord Judd's Question, is there not an irresistible logic that if you go into countries-I am not saying Libya per se, but any country-to change a despotic regime that is massacring and killing its citizens, and I understand all the imperatives of that, if the regime that takes its place starts doing the same, we have to go back in again. Would the Minister agree that that is the case?

Lord Howell of Guildford: We are at the same point as we were a moment ago: it is different in different countries. I agree that certain responsibilities are required. If the outside world decides to intervene, whether for humanitarian reasons to prevent a massacre or because there is open, recognised and legally agreed international pressure to change a regime, those who intervene must have some responsibility for the regimes that follow. These are agonising decisions, which are different in every case. They are currently very prominent in Syria, where we see hideous atrocities unfolding. The question of how those who care for human life and want to uphold civilisation should best intervene is very difficult, as I know the noble Lord fully understands from his previous responsibilities.

Baroness Falkner of Margravine: My Lords, does my noble friend agree that democracy is a far better protector of diversity and pluralism within societies than tribalism, particularly if tribalism leads to conflict?

Lord Howell of Guildford: That is unquestionably so. This is the issue that we are now discussing. Libya was and remains a country with many different tribal groups, not all of which necessarily live in tight geographical locations. They are often rather mixed up. Many different forces are at work in Libya, but overall, as a democracy, it is our advice to other democracies that their future will be best assured by pursuing the democratic method.

I should add that the recent survey of what has happened in Libya leaves us with figures that show that 97 per cent of Libyans think that the revolution was absolutely right; 66 per cent support a semi-centralised Government, with ministries spread across Libya; and 79 per cent expect their lives to better a year from now. These are pretty decisive figures, which indicate that if we push for more democracy we are all on the right lines.

Lord Desai: My Lords, do the Government have any plans to help Libya to conduct a good election by pointing to the Commonwealth experience in these matters?

Lord Howell of Guildford: The Commonwealth experience is available, and I know that there are leaders in the Commonwealth who are quite ready to provide any advice, support and help that they can. The Commonwealth's role in monitoring and administering elections is particularly valuable where

19 Mar 2012 : Column 634

new constitutions are in the making, as in Libya. Commonwealth leaders have certainly indicated that they stand ready to help in any possible way.

Health and Social Care Bill

Petition

3.07 pm

Lord Owen: My Lords, I beg leave to present a Petition from 38 Degrees, which prays that, in considering the matter of the NHS risk register, noble Lords remember that risks posed to our NHS by the Health and Social Care Bill are matters of significant public concern. The Petition, which I have already deposited with the Clerk of the Parliaments, bears over 486,000 electronic signatures.

Petition presented.

Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 2012

Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012

Occupational and Personal Pension Schemes (Automatic Enrolment) (Amendment) Regulations 2012

Automatic Enrolment (Offshore Employment) Order 2012

Motions to Approve

3.08 pm

Moved By Lord De Mauley

Motions agreed.

Health and Social Care Bill

Bill Main Page

Third Reading

3.08 pm

Moved by Earl Howe

Amendment to the Motion

Moved by Lord Owen



19 Mar 2012 : Column 635

Lord Owen:My Lords, this is rather a strange situation. We are coming to the end of an extraordinarily long process of debate, yet there is still one element that is not directly related to the Bill and much more concerns constitutional questions and the Freedom of Information Act. Throughout the Bill, various attempts have been made-mainly by those on the Cross Benches and the Opposition, it must be admitted-to use the Freedom of Information Act to reveal more information. That is a common situation that will be familiar to all Peers: in opposition we seek to use the Freedom of Information Act and in government we tend to try to clamp down on it. I myself tried to obtain the legal advice to the previous Labour Government in 2006 on the implications for introducing "any willing provider" provisions and other aspects as regards EU legislation. The Information Commissioner rejected my application. I accept that because the Freedom of Information Act has been very well established, with a commissioner who makes recommendations. These can be challenged by government or any other interested party. The commissioners can then decide on whether to uphold them and then there is a further appeal.

What is extremely unusual about the request that this register be disclosed-the transitional register, which relates more to the legislation-is that two decisions under the Freedom of Information Act have upheld disclosure. It was a surprise to quite a lot of us that the first decision by the Information Commissioner was that the register be disclosed-in fact, there are two registers. What became interesting was that the tribunal was going to have the matter referred to it. I pay tribute to the noble Earl, Lord Howe, who, on behalf of the Government, recognising the dilemma that we might be in in this House, having come to our normal discussions on the Bill and wanting to hear a decision, asked the chairman of the tribunal, Professor Angel, to bring forward his hearings. That was done and the tribunal sat on the 5th and 6th of this month. Again, its decision was against the Government and was that this register which relates to the peculiar circumstances of this very complex and long legislation should be disclosed.

It is fair to say that the Government have another appeal procedure open to them. There is another tribunal that they can go to. I make it clear that I do not believe that any Freedom of Information Act worth the name would ride roughshod over the legitimate case of the Government to hold back information and, furthermore, to receive information that is confidential to them during the process of legislation or of good government. As we know, the previous Cabinet Secretary went to the tribunal and argued-and I do not disagree-that civil servants, when asked to make risk assessments, wanted to feel confident that they could raise the unspeakable, if you like, with Ministers and not feel hesitant about bringing forward risks.

However, risks go to the core of this legislation, and that is the most important thing about it. The issue before the House is whether the risks of continuing with the legislation-no one believes that there are no risks-are greater than the risks of stopping the legislation. Few would disagree that there must be some risks in stopping legislation, having continued with it this far.

19 Mar 2012 : Column 636

This is, if one likes, a balance of judgment. My premise and my plea to the House is that, before making a final decision, all those who respect freedom of information and the world that we now live in with a viable Freedom of Information Act should at least await the decision of Professor Angel and the tribunal. That is all I ask for.

The question is a practical one. Are there enough weeks or days available to the House before Prorogation? I took soundings and it was very clear-certainly among Cross-Benchers, who I am bound to talk to more than others-that there was no belief that this issue should block the legislation; they did not think that it would be appropriate. There was a lot of substance in their argument. Whatever one's views about the Bill, that can be discussed at Third Reading. The question here was whether we could frame an amendment that would give the Government the freedom to bring this issue back before Prorogation. I used the words,

We are not therefore discussing whether the Bill should go forward. This is not by any standard a blocking measure. Nor, I suggest to the House, would we really be sensible to make a decision in principle whether the tribunal's judgment should be upheld. It is anyhow, as I said, open to the Government to go to another appeal.

What seems to me pretty important is to listen to what the tribunal has decided. It has made a complex judgment, because it decided that the overall risk assessment should not be published but the transitional risk assessment should. A lot of people are still not sure how that distinction could have been made, but it has. We passed the legislation for freedom of information. I think it was an extremely good piece of legislation. It was put on the statute book in 2000 and was modified in 2005. As I said, it is not a complete licence for anyone to go in to get everything published that they might want. There are checks and balances. It seems to me that we should respect those checks and balances and await the decision.

There is a political and practical reason also, quite outside that. Those of us who have spent many hours and days on the Bill know that we can easily be in a bubble in which we discuss the line by line amendments and the practical wording of the legislation, but I suggest to the House that we are in a very unusual situation. On Friday, the result of a poll held among members and fellows of the Royal College of Physicians was announced. I have an interest to declare. I am a fellow of the Royal College of Physicians and I voted. Thirty-five per cent voted, which, given the circumstances-ballots also go to overseas members-was a pretty high poll, and 69 per cent voted that the legislation should not go forward. Only 6 per cent believed that it should.

Everyone in this House makes their own judgment about a Bill. Pressures from outside, electronic petitions and opinion polls among royal societies come and go and we still make our decisions. I have no complaints about that and I do not believe that the medical profession has any particular monopoly of wisdom on

19 Mar 2012 : Column 637

this issue. What is staggering about the legislation is how it has been opposed by practically everybody who works in the health service. I refer not just to unions such as the BMA and the Royal College of Nursing, which have dual functions, both representing their professional bodies. Every royal college that balloted its members has come up with that conclusion.

All I am saying to the House in all sincerity is that we should follow due process on this Bill. Let us demonstrate to everybody that, even if they disagree with it, if the Bill is passed, they must co-operate with the legislation of the House. They must accept it in good will as the judgment of Parliament and they must work within the legislation. But do not leave unfinished business, do not leave out one massively important issue, which is to hear the view of the tribunal that we erected in the legislation and gave the freedom to make a judgment, and which has twice opposed the Government's judgment. I rest my case.

3.15 pm

Lord Fowler: My Lords, I intervene briefly. I listened carefully to what the noble Lord said, but I am not sure that this is just a matter of practice, as he said at the beginning-although by the end he was coming very firmly round to the view that he was an all-out opponent of the legislation itself. I think that there are questions of principle here as well, and not just the principles that he enunciated.

I am not a member of the "keep everything secret" brigade-rather the opposite. If we had taken more notice of the Information Commissioner's report in 2006 on the unlawful trade in professional information, we might not have had to wait until 2012 for the inquiry into phone hacking, and the rest. I also argued against the 30-year rule for the disclosure of Cabinet papers as wrong and unnecessary and remain critical of the previous Government's response to that, which was to reduce it to 20 rather than 15 years, as recommended. I think that had more to do with disclosure on Iraq than it did a matter of principle.

I also believe that when it comes to the publication of risk registers, other issues need to be taken into account, not least the relationship between Ministers and civil servants. I suggest that this is why no Government in the past has agreed to a policy of publication. In my view, Ministers are responsible for the decisions taken, and it is for civil servants to advise. That is their skill and their role, and anyone who has ever put a Bill through Parliament knows well enough that if they are any good, civil servants do not simply sit there saying, "Yes, Minister". They debate and argue with the Minister and warn of the risks as they see them. It is one of the very good features of the relationship between Ministers and the Civil Service in this country.

The problem with publishing all the risks, from the possible to the highly improbable, is that the relationship itself seems to be brought into some doubt. Civil servants, whether they liked it or not, would be dragged into the debate. We all know exactly what would happen: the risk register would be used to undermine the measure being proposed. The aim would be to show that Ministers were in conflict with their own staff. The opponents of a Bill such as the one before us

19 Mar 2012 : Column 638

today could say that not only was the BMA against the Bill-it is not exactly news that the BMA is against any new measure put forward since 1947-but also, by selective quotation, that the Civil Service itself had profound doubts. Whether one liked it or not, the Civil Service would be brought into controversy and people would try to portray conflict. I do not see, frankly, how that is in the public interest.

The party opposite has not shown any interest or inclination in the past to go down this road as a general policy line. This would simply place new obstacles in the way of legislation and change. I wonder how a risk register could have been used at the inception of the health service in the 1940s. Doubtless it would have pointed to the problems implicit in such a massive reorganisation and to the risks that costs could escalate. Not every civil servant would have shared ministerial confidence that a better health service would mean improved health and therefore a reduction in costs.

It comes down to the fact that in these cases there is a matter of judgment on the part of Ministers, having listened to the arguments and the advice of the Civil Service, in putting their proposals before Parliament. I entirely understand the later amendment of the noble Baroness, Lady Thornton, which seeks to deny a Third Reading to this Bill. That is perfectly straightforward: she sets out the reasons for it. I do not happen to agree with her, as she knows, but I do not have any doubt about her right to do this. Frankly, however, I cannot see the value of this amendment seeking delay on grounds that I do not believe to be in the public interest.

Lord Mackay of Clashfern: My Lords, since Second Reading in this Chamber, this House has carried out a very thorough public scrutiny of this Bill. In doing so, it has had the advantage of the expertise of practitioners and former practitioners with great experience from across the medical, surgical, nursing and social work professions, and also those with experience of administration of those services. Further, it has had the advantage of former health service Ministers and of the skilled, eloquent probing of the Bill's provisions by the opposition Front Bench: the noble Baroness, Lady Thornton, the noble Lords, Lord Hunt of Kings Heath and Lord Beecham, and the noble Baroness, Baroness Wheeler. We have also had the expertise of the noble Lord, Lord Owen, himself not only a former Health Minister and writer on health matters, but also a director of a large American pharmaceutical company for quite a number of years. In addition, as the Bill has proceeded, we have received detailed briefing from many people currently working in the health and social work services.

The scrutiny was completed last week. In that situation, we would grossly underestimate the breadth and depth of that scrutiny if we accepted that a register, prepared 15 months ago by civil servants in the privacy of the Department of Health before the Bill was introduced and before the very large number of amendments were made to it, could add substantially to our understanding of the Bill. Therefore, in my submission, at this stage this amendment to the Motion is inappropriate. At the very best, it refers only to the tribunal's decision; it does not refer, except indirectly, to the register. In my submission to your Lordships,

19 Mar 2012 : Column 639

the register prepared so long ago in privacy by civil servants cannot be expected to add substantially to what we know already.

Baroness Jay of Paddington: My Lords, as the House knows, I chair your Lordships' Constitution Committee, which has produced two reports on the Bill. As everyone has said, the Bill is enormously complicated and very detailed, and we have been very detailed in our consideration of it.

I support the amendment of the noble Lord, Lord Owen, because the noble Earl the Minister has, as we all know-and we have all paid due respect to him on this-been enormously helpful to the House's consideration and the production of amendments. The Constitution Committee itself produced very important amendments on the Secretary of State's role on this. All this has demonstrated the very sound, elaborate and good processes by which this House and its Select Committees, as well as the many experts, as the noble and learned Lord, Lord Mackay of Clashfern, has just mentioned, have contributed to the debate. We have proceeded on this in an extremely sensible, measured and considered way.

The Government have been very generous and the Minister has been particularly generous in accepting amendments and entering into discussion. Having listened to the noble Lord, Lord Owen, I think he is saying that the House should continue to follow the very good process that we have had in formulating our opinions on the Bill. We have taken time and have deliberated very carefully. The House has listened to many views, including those of its Select Committees and of its many expert Members. As the noble Lord, Lord Owen, said, we have also listened to many people outside.

Over the weekend, I have been particularly amazed at the last-minute contributions from, for example, the Royal College of Physicians. The noble Lord, Lord Owen, mentioned one online petition, and I have received another from the organisation Avaaz, signed by 110,000 people. The cumulative figures suggest that in the past few days more than 500,000 people have signed online petitions specifically relating to the amendment of the noble Lord, Lord Owen, not to the more general point.

I say to the House that we have followed the processes very well indeed in relation to this Bill. We have agreed to disagree on some things, and the Government have accepted amendments where they have accepted the arguments. In following the processes, which this House has created very successfully over the years, we have used our best efforts with regard to the Bill, and we can lose nothing by continuing to follow those processes and, finally, by taking note of the tribunal's report, as the noble Lord, Lord Owen, has suggested.

Lord Birt: My Lords, I rise to underline some of the arguments articulated by the noble Lord, Lord Fowler. A risk register is a key prerequisite of any effective organisation, whether public or private. I have had experience of a variety of registers in both the public and private sectors. When I worked at No. 10, I was a

19 Mar 2012 : Column 640

member of the Cabinet Office Strategy Board, and one of the tasks of that board was to consider what was effectively the national risk register.

What is the purpose of a risk register? It is to identify all risks. Every risk register that I have ever looked at has been kept highly confidential because it has always been gory and hair-raising to read. The purpose of identifying worst-case risks is to do your best to prevent them and, if you do not prevent them, you need to work out, in advance, what you will do if bad things happen. To create an effective risk register, you need to-

3.30 pm

Baroness Thornton: Is the noble Lord aware that all NHS organisations, strategic health authorities, PCTs and local authorities have risk registers and they publish them?

Lord Birt: I shall come to the risks of publication in a second. What are the means of creating an effective risk register? You need to involve those in governance and delivery and you need absolute candour and trust in the process. The consequence of making any risk register public is that it will be anodyne and the risks would simply cease to be managed, which is not in the public interest. I would hope that Governments of any persuasion would resist the notion of publishing any risk register. It is a matter of regret that one risk register in respect of Heathrow was published. It follows from that that I am unable to support the amendment.

Lord Peston: I support the noble Lord, Lord Owen, in what I regard as a special case. I think he, too, is arguing that this is a special case. As background, perhaps I may refer to my experience last week when I spent quite a long time at St Thomas's Hospital, where I think the noble Lord, Lord Owen, was a most distinguished graduate. I was an NHS patient and my experience was of a service working exceptionally well medically, not wasting resources, and staffed by people devoted to the care of patients. Those to whom I spoke told me that that was why they had entered the medical profession; they wanted to work in hospitals. In other words, my experience was diametrically opposed to the basis on which this whole Bill is put forward by the Secretary of State, who constantly attacks the NHS, constantly argues that it wastes resources and constantly argues that it needs private sector involvement in order to make it work properly.

The reason for wishing to see the risk register, which I regard as fundamental in this case, is to ask the question: was the Secretary of State warned of this? Did anyone place before him the information and the argument that his account of the NHS does not correspond to reality as experienced by those of us who use it? That is why it seems to me that the noble Lord, Lord Owen, is asking to see the documentation. Those of us who have advised Governments are perfectly well aware that Ministers have many different views put before them. We are perfectly well aware that civil servants have their own agendas and there is nothing surprising about that. Equally, those of us who have advised Governments know that all decision-making

19 Mar 2012 : Column 641

involves risks, so to try to pretend that there is no risk and that there is a case for keeping it secret seems preposterous.

Last week, we heard the approach of those who are still dyed-in-the-wool opponents of anything appearing in the public domain. I hate to say it but such people were involved with our own Government not that long ago, although I thought that we had abandoned those days and that openness had become our touchstone. Last week, I said to the Minister that when I gave advice, I would have been insulted at the suggestion that I did not say to a Minister what I actually thought and, if I were told that what I had said was in the public domain and asked to tone down my remarks that what they were thinking of was stupid, I would not have done so. Addressing the Minister directly, I add that the 30-year rule has given some of us considerable embarrassment. Some of the things I said in the past turned out to be absolute balderdash but I can live with that because it is what I thought at the time. It turns out that I was wrong.

The path that the noble Lord, Lord Owen, wants to take us down is, as a special case, precisely the correct one. I do not think it will destroy our Civil Service; it will not cause honest men and women suddenly to start telling lies in order to ingratiate themselves with the Minister. I am absolutely certain this is a special case which your Lordships should espouse.

3.45 pm

Lord Deben: My Lords, I would like to share with your Lordships' House, for the first time, my experience of trying to deal with the complicated matter of BSE as it makes clear this distinction. I committed myself to total openness; I knew nothing that the public did not know. It was the only way in which one could be sure of obtaining people's trust. Nothing was hidden. We did not have risk registers in the sense that we do today but it would be quite wrong to say that we had not considered every possible risk.

I put it to your Lordships that there is a difference between what you know and the extreme cases which you ask about in order to make sure that what you know covers everything that you could know. If in the middle of that terrible crisis newspapers more interested in their numbers of sales had accused the Minister of uncertainty because he had asked about risk-and I do not need to go into the kinds of risk you had to ask about-it would have been impossible to make what were already difficult enough decisions. It turns out now, 20 years later, that the decisions were right but at the time they could only be what you knew, and what I knew I shared.

Consider also what it meant for my civil servants. Do your Lordships really believe that your civil servants would be able to be as frank and direct and complete if they found themselves and their relationships being used as part of a battle? There were some terrible battles at that time between people who had all sorts of other interests. Compare this to another case, which out of kindness I will not be too detailed about. For many years in the ministry of agriculture a particular view had been upheld and we had been told that it was true. When I sought further information I discovered

19 Mar 2012 : Column 642

it was not. It was at that point that I tried to establish a very clear distinction between what you know and what you have to ask about which you do not know.

The risk register has come into our governmental structure largely from private business. I sit on the boards of a number of companies and chair several; in all those cases we have a risk register. That risk register is only useful if it is kept entirely to the company itself, because you want to ask questions of a very extreme kind. I ask the noble Lord, Lord Owen, whether he can imagine a Foreign Secretary who had to reveal his risk register asking what would happen if this or that Government did this or that, or what would happen if some Middle Eastern state refused to allow our ships into the Strait of Hormuz at this moment. Would any Foreign Secretary be able to be Foreign Secretary?

Baroness Thornton: Does the noble Lord not think that the Information Commissioner and the tribunal have taken those points into account?

Lord Deben: I would not dream of suggesting that I know what the tribunal and the commissioner have taken into account. All I am saying is that if they have taken it into account and come to this decision, I think it is wrong, and if they have not taken it into account they ought to have done. That is why I come to the point that the noble Baroness raised when she said that it is all very good because the National Health Service has risk registers and publishes them. They are not risk registers, not in the sense that a business has risk registers. They are not risk registers in the sense that the Foreign Office has risk registers. They are such risks as the National Health Service believes will stand being in the public domain. The risk registers that a Government have are a wholly different kind of thing and need to be. I believe that we must protect them.

Lord Harris of Haringey: Before he finishes his remarks, will the noble Lord explain why the National Security Council publishes its own national risk register of security threats to the UK?

Lord Deben: For exactly the same reason that the National Health Service does.

Baroness Williams of Crosby: My Lords, what the noble Lord, Lord Deben, said is well worth listening to, but I shall add one other important factor before I come on to the amendment moved by the noble Lord, Lord Owen. As the noble and learned Lord, Lord Mackay of Clashfern, pointed out-and it is a crucial factor in our discussion-the risk register that was drawn up in autumn 2010 took no account of the changes made by your Lordships' House. It could not because it could not foresee the future. That means that the risk register of 2010, the transitional register to which the chairman of the tribunal referred, is almost useless in enriching and informing the debate we are having in this House. Therefore, far from being helpful, it will in many ways be extremely misleading because it will confirm the incorrect beliefs of many members of the public who have not understood what has happened in this House. You only have to read the newspapers to see how widespread is the total ignorance

19 Mar 2012 : Column 643

of what we have done here, whether we talk about competition, training or constitutional change. That is the crucially troubling aspect of what we are discussing. It leads the general public and Members of this House and elsewhere back to an out-of-date and anachronistic finding.

I have one more thing to say about the amendment moved by the noble Lord, Lord Owen. The House needs to recognise that he has made a very substantial change of great importance in it: he has accepted that there will be a Third Reading in this House. He has accepted that the outcome of the Third Reading will be binding upon everybody in this House and beyond because it will be part of the system of law. What he has asked for is more time and opportunity to have the finding of the tribunal discussed in this House. In that, he is absolutely correct. I do not believe that we have gone anything like sufficiently far in trying to accommodate that reasonable request because there is time left in this Session of Parliament. It ought to be possible to transfer a day or two from the Scotland Bill to the health Bill so that it could be properly discussed; or there is something that the noble Lord indicated he would accept, which is a very narrow redaction of anything in the risk register that would be seen as desperately dangerous to public trust in the NHS.

My view is a rather curious one. It is that the noble and learned Lord, Lord Mackay, is right in pointing to the real dangers of treating the risk register as a source of knowledge and truth, but I also believe that the Government should have gone further in trying to find time somewhere, if necessary-dare I say it?-even taking a day off the sacred Easter Recess to enable this House to discuss in detail what is coming out of the chairman of the tribunal's decision on the risk register so that we can get it straight.

Lord Wilson of Dinton: I add my support to what the noble Lord, Lord Fowler, and others who have spoken against the Motion said. I am deeply concerned about the implications of the Motion for the Civil Service.

Every day in government, Ministers consider policy issues and depend on the Civil Service for advice. Anyone who has been a Minister understands the private space in which civil servants give their best advice. There is a major public interest in advice being given without fear of it becoming part of the political arena, in the press or in Parliament. If risk registers are published, the very act of publishing them will draw them into the public arena and politicise the advice. This is not about lying, or about being dishonest in any way, but the duty of civil servants is to the Ministers they serve and to the Government of the day. They have a job to do and they must do it to the best of their ability, but they must do it in a way that does not cause difficulty for the Government.

It is in all our interests that risk registers are honest and look at the worst case, and put it in terms that leave the Minister in no doubt about the risks that are being taken. If those documents are going to appear in the public arena, they are bound to be sanitised in

19 Mar 2012 : Column 644

some form. Advice will either be put in a way that does not fully expose the dangers, or worse still it will not be given. There is a real risk that important advice will be driven off the paper into oral remarks, which are not what the Minister needs. The Minister needs a document that he or she can read after the meeting, and ponder and mull in the stillness of their own room. If we push these documents into the political debate, we will lose a crucial part of the role of the Civil Service. If we do it a lot, over time there is a real risk that Ministers will want around them civil servants who are themselves political, because they have become part of the political debate.

This is a very dangerous pressure to put on the constitution. I understand the worries about the Bill, but this is not the right way to attack it. It would be a dreadful mistake if this House were, in the heat of the moment, to set a precedent that affected the Civil Service in its ability to serve the Government of the day.

Across all parties there is an understanding about the need to observe the conventions under which the Civil Service operates. I appeal to the House not to add its weight to this issue of the risk register in a way that might do damage, because the damage would be not only to this Bill and this department. Whitehall is watching; it is really concerned about this issue, and if this goes the wrong way it will have implications and reverberations across government in ways that I am sure this House would not want. I urge the House not to support the Motion.

Baroness McIntosh of Hudnall: Would the noble Lord share with the House his view as to what weight should be attached to the Information Commissioner's judgment on this particular risk register? Is it his view, in the light of his remarks, that the views of the Information Commissioner should be ignored, overridden, or appealed on to the point at which they are no longer relevant? That appears to be the course of action the Government are now trying to take.

Lord Wilson of Dinton: It is not for me to advise the Government on what to do, but I hope they will appeal, because the issue involved is of huge importance. I read the Information Commissioner's first judgment and I do not find it satisfactory. It is written in a way that suggests that it does not understand the issues in government. I think the issue at stake is of sufficient importance for the Government to fight its corner, and for this House not to add its weight to it.

Baroness Murphy: My Lords, I declare that I am a member of the British Medical Association and a fellow of the Royal College of Psychiatrists.

The risk register is a complete red herring and we all know that this is an attempt to delay the implementation of the policies in the Bill. The Bill has received extraordinarily careful scrutiny. In fact, it has received better scrutiny and a warmer response from government Ministers in addressing amendments proposed by all sides of the House than any Bill with which I have been associated in the past eight years. At the moment, I can think of nothing worse for the

19 Mar 2012 : Column 645

National Health Service than to have these policies delayed yet again by further uncertainty and greater procrastination.

The risk register saga was so obviously a political ruse from the beginning that I did not even bother to speak on it when it was first introduced. It was so obviously a red herring, produced for the benefit of the House to debate a slowing down of the Bill, that it was not worth addressing.

Baroness McIntosh of Hudnall: Would the noble Baroness explain to the House whether it is her view that the Information Commissioner has deliberately delayed the progress of the Bill? That seems to be the implication of her remarks.

Baroness Murphy: That is not the implication of my remarks at all. The Information Commissioner has not released his full judgment and will not release his reasons for some time, so we cannot debate that.

This comes back to what my noble friends Lord Birt and Lord Wilson and the noble Lord, Lord Fowler, said about what these risk registers contain. I know very well because I have written risk registers for the National Health Service. I have sat down with my chief executive, and with my chairman when I was a chief executive, and we have written these things for public consumption. The Cabinet Office has a very nice risk register, but it is for public consumption; it is not to do with the private discussions between senior civil servants or advisers. I have worked as an adviser at the Department of Health, and this is not the kind of thing that comes up in conversations between Ministers where you want to be really frank.

We now have an out of date, almost two years' old risk register that will not be relevant to the passage of the Bill. We have assessed the detailed risks of the Bill better in this House than in any other forum I can imagine. Those who have sat through the progress of the Bill, line by line and word by word, know very well that we have improved it. I am sure there are areas that many of us would still like addressed, but for all kinds of reasons we are not able to do so. I beg the House not to delay the Bill. If we delay it further we will have no guarantee that we will be able to get it through before Prorogation. I see this simply as a ruse not to implement these polices. We would gravely let down the National Health Service by not implementing them, and I urge noble Lords not to support the Motion of the noble Lord, Lord Owen.

Lord Falconer of Thoroton: I support the Motion of the noble Lord, Lord Owen. I understand that he is saying, "Let us look at the reasons for saying that the risk register should be made public". He understands that it must be done before Prorogation, so I am not entirely clear why the noble Baroness, Lady Murphy, is saying that this will cause delay. I hear what the noble Lord, Lord Wilson, says-you do need to strike a balance between appropriate confidentiality in relation to what the Government do and the need for openness.

The Freedom of Information Act was passed so that it would not be government Ministers or civil servants who determined what was kept confidential

19 Mar 2012 : Column 646

but an independent tribunal. We have reached the position on this issue at which Professor Angel, who is regarded as probably the best chair of an information tribunal that there is, has struck the balance. Take it from me that Professor Angel very well understands the need for proper confidentiality in relation to government. He and his tribunal are not remotely people who would make everything public. They well understand that lots of government matters have to be kept under wraps for the purpose of good government. If a tribunal chaired by Professor Angel said that we should see this, and he reached that conclusion on the basis not of politics but of good government, my instincts are that we should listen more to what he said than noble Lords around this House who have an interest in trying to rush the Bill through. I am struck by the modesty of the amendment by my friend, the noble Lord, Lord Owen. It says that we should see what Professor Angel said before we reach a conclusion. I strongly urge the House to take that course.

Lord Martin of Springburn: My Lords, I have sat for many hours with my noble friend Lord Owen on this Bill. We both have an appreciation of the health service that came from our parents. My noble friend's father was a medical practitioner while my mother and grandmother spoke of how things were before the National Health Service came into being. I have no desire to do any disservice to the health service. In fact, in the amendments put before this House, I voted contrary to the wishes of the Government.

Yet, on this matter, there is a point that information passed between civil servants and their Ministers should be kept confidential. The argument has been put about the Information Commissioner. Is anyone suggesting that the Information Commissioner is doing something wrong? The answer is no. The Information Commissioner works from a piece of legislation that both our Houses gave him. That basically says that if information is in data-in written form-then it should be made public. What will now happen is that when Ministers go to get advice, they will not get written advice. Ministers and other high officers of state are entitled to advice from their civil servants or officials. They get confidential advice. Freedom of information does not cover all information, only written information. No one can force a Minister or any other officeholder to hand over information given orally. That is exactly what will happen now: information will be given orally. That is not helpful to the quality that we look for. When a civil servant or officer puts something down in a document, they give a lot of thought to it. As the noble Baroness, Lady Murphy, said, there are several people behind that document when it is published. It is there for the Minister or officer to look at. On this matter, I cannot support my noble friend Lord Owen. I support the Government.

There was a previous debate on this matter. It was stated that the previous Labour Government should give the risk register for, I think, the third runway at Heathrow. Justine Greening was the MP who pushed for that. First, the Government did not hand over that information in a matter of minutes. It took a long time for them to hand it over. Secondly, this was leading up to a general election where parliamentary

19 Mar 2012 : Column 647

incumbents around Heathrow and parliamentary candidates in the Labour Party were deeply worried about that risk register.

I have been very supportive of my friends in the Labour Party, and they know that. In fact, I have a better voting record with the Labour Party than some of its card-carrying members. However, they should ask themselves when the road to Damascus came about. It did not come about two years ago. Every time I granted an Urgent Question to a Minister or to the House, there was a Minister complaining that they did not want to give information to the House but would rather give it to a television studio.

I have had a great deal of criticism-costly criticism-about going to an appeal, so I know about appeals.

4 pm

Baroness Royall of Blaisdon: My Lords, it is not just a question of the road to Damascus. When the Information Commissioner ruled about the Heathrow third runway we then made the report available. There is also one more difference I would point out to the noble Lord. At that time there was no Bill going before Parliament to which the risk register was pertinent. They are the two key differences that I wish to bring to the House's attention.

Lord Martin of Springburn: The noble Baroness makes a valid point but I am giving many examples of where certain individuals, such as some of her Cabinet colleagues, were not too keen about the Information Commissioner's instructions to this House and the other House. She will know that. In fact, some of her fellow Cabinet colleagues came to me and said, "Good luck, we want you to appeal.". I do not know whether it was discussed in Cabinet but I know that the sparks started flying. What do they say about failure? Failure is an orphan.

I will not go down that road too far except to say that it certainly has been a road to Damascus. There have been a lot of decisions by the Information Commissioner that the noble Baroness and her Cabinet colleagues did not want. I am prepared to put them down item by item and to tell her about the Cabinet Ministers, some at very high level, who were prepared to go against an Information Commissioner's decision.

Noble Lords: On a Bill?

Lord Martin of Springburn: Not on a Bill. The noble Lord, Lord Owen, says it is not about the Bill; he says we should wait for the Bill until we get an appeal decision. If people are opposing an Information Commissioner's decision, it still has consequences for legislation whether it applies to a Bill or not. Let us not kid ourselves. It may not apply to a Bill but on other pieces of business, the Minister concerned is going to say, "Give me that information orally-I do not want anything at all in writing". Information Commissioners have gone on record to say that if information is in data they want to release it.



19 Mar 2012 : Column 648

Lord Walton of Detchant: My Lords, I have the greatest respect for my noble friend Lord Owen-a noted Health Secretary and Foreign Secretary, and someone who made a major contribution towards peace in the Balkans. He became, obviously, one of the glitterati of British politics. Many of your Lordships may not be aware that he began training as a registrar in neurology at St Thomas's Hospital and I often contemplate what might have happened to his future career if he had stuck with neurology and not turned to politics.

While I talk of neurology, may I just say to the noble Lord, Lord Deben, that I was the neurologist on the Southwood working party on BSE which gave advice to the Government on that tragic, difficult problem in 1988? I am very glad that we got that advice right-we learnt a lot about the assessment of risk at that time.

To return to this Bill and the amendment moved by the noble Lord, Lord Owen, which, with some difficulty, I feel that I cannot support, I am a fervent supporter of the National Health Service. I spent much of my professional life working in it and in academic medicine, and when this Bill was introduced into your Lordships' House I joined with the voices of the BMA, the royal colleges, the nursing organisations and many others in saying that in my opinion the Bill was potentially damaging to the NHS and that it was unacceptable. However, we have moved on. I have been involved with many of your Lordships in the lengthy, at times almost interminable, debates which have improved this Bill beyond recognition. It is not perfect, and there are still issues which perhaps need to be handled by regulation, but it is an infinitely better Bill than the one which came originally into this House. For that reason, any further delay would be unacceptable.

Having said that, I was greatly touched by the wise words of the noble and learned Lord, Lord Mackay of Clashfern, and by the very wise words of the noble Baroness, Lady Williams, who has been a tower of strength throughout all the debates in this House. I genuinely believe that if the medical organisations which are continuing to express their complete opposition to the Bill had fully appreciated the enormous number of amendments that have been carried and accepted by the Government in this House, they would not be continuing to take their stance as fiercely as they are. The Bill has been transformed; for that reason, if your Lordships will forgive the cliché, enough is enough. We are where we are. It is time to give this Bill a Third Reading.

Lord Clement-Jones: My Lords, it is a privilege to follow the noble Lord, Lord Walton, who, as we all know, carries such respect on health matters in this House. I do not doubt the sincerity of the noble Lord, Lord Owen, in his fundamental opposition to the whole Bill. Indeed, he expressed it very clearly in his Observer article yesterday. He put the arguments very fairly on his Motion, but I have absolutely no hesitation in disagreeing with it today-and I say to him, in his capacity as a doctor, that I feel no physical or mental discomfort with a whipped vote on the matter, for the very key reason that my noble friend Lady Williams mentioned.



19 Mar 2012 : Column 649

The risk register whose publication is being requested was written as long ago as November 2010. It will certainly not relate to the Bill being considered today, as it was drawn up many months before the pause in the Bill's proceedings. Many changes to the Bill were made as a result of the Future Forum process, headed up by Professor Steve Field. The Bill was then changed significantly in Committee and on Report in this House, as the recent House of Commons research paper makes absolutely clear. The risks identified in the register are therefore those of the old Bill, long since superseded, or even of the White Paper which preceded it. It will have been based on worst-case scenarios-

Baroness Tonge: In all sincerity, if the risk register is so totally out of date and bears no relevance at all to the new amended Bill, would its publication not be a wonderful opportunity for this side of the House to show how much it has improved the Bill and dispatched all risks?

Lord Clement-Jones: My Lords, my next sentence was about to deal with precisely the point made by my noble friend. It can therefore be argued that publication now by the Government could, and would, wholly distort rational discussion about the Bill in its present form. The job of scrutiny carried out by your Lordships' House is to look at every scenario and from the experience of its Members, which is considerable, suggest amendments which mitigate the problems identified. That is precisely what this House has carried out and, I would say, to good effect. However, the Motion is not suggesting that we delay the current Bill against the remote possibility that there is some risk in it which the Department of Health has identified and this House has not. It is saying that we should delay it pending the First-tier Tribunal's reason for its decision being published.

What will passing this amendment to the Motion therefore achieve? When we know the details of the decision, the Government will still be fully entitled to appeal. They have already won with the strategic risk register, and may well take the view that they will be able to overturn Professor Angel's decision on the transitional register. Do we want to deny them the right to appeal in the face of the very fact that with one limited exception, which the noble Baroness, Lady Royall, has mentioned, the Labour Government did not publish these risk registers when they were in government? Where would that leave us, even if the detailed reasons become available?

I was slightly taken aback by the use of the expression "rush" from the noble and learned Lord, Lord Falconer of Thoroton. I submit that a debate over revealing an up-to-date risk register might just have some merits, but not in these circumstances, where its contents are of historical interest only.

Lord Grocott: I am certain that the House wants to reach a conclusion, but that is a bad way to start.

Noble Lords: Lord Campbell!

Lord Campbell of Alloway: Thank you very much. I will make one short point. All your Lordships, wherever you may sit in this House, know perfectly well that if

19 Mar 2012 : Column 650

this Bill is delayed, urgent requisite reform cannot be used or done, to the detriment of the public. For that reason alone, I oppose this amendment.

Lord Grocott: My Lords, I am sure that we are about to reach a conclusion. I want simply to make an obvious point which may have been missed. It is that we have had an interesting debate, going on now for the best part of an hour, most of which has not been about the amendment on the Order Paper. I know that this can be disturbing at times, but I would like to remind the House of what it is going to make a decision about-or, perhaps, what it is not making a decision about. It is not making a decision about the freedom of information legislation, on much of which I might find myself in complete agreement with the noble Lords, Lord Butler and Lord Wilson. It has many problems and difficulties associated with it, not least for Ministers. Ministers in this Government are finding that, just as much as Ministers in the previous Government did. However, it is not about the merits of the Freedom of Information Act-that is for another time. It is not about the merits of risk registers, good, bad or indifferent, and there are all those categories of risk registers. It is not about the merits of the Bill, where we are considering whether it should have a Third Reading now. It is about the momentous decision that the House must reach shortly: whether the Third Reading of this Bill should be delayed for, in my estimate, three weeks. That is the decision we are being asked to make.

With respect to previous speakers, that makes one or two of their contributions problematic, if not redundant: those who have suggested that somehow it will be very serious, if not cataclysmic, for the health service in this country if the Bill is further delayed. I have not been involved with the debates on the Bill, but it already seems to have been going on for most of my life, as far as I can see; certainly for 12 months. Are we really being asked to accept the proposition that a further three weeks-that is my estimate, and I will come to my question to the noble Earl, Lord Howe, in a moment-will somehow traumatise the health service? That is an unsustainable proposition. I would not have voted for the amendment had it not referred to the specific point at the end, which is that the House must be able to reach a decision on Third Reading before Prorogation. That is what we are being asked to do. As we all know, the Queen's Speech is in May-I cannot remember the date-so Prorogation is not too far away.

I know that the House will not vote on the basis of the point that I am making. The proposition is simple and straightforward, and I cannot believe that it is of the cataclysmic significance that one or two speakers have suggested. I have no doubt that we have reached the stage, which we have all been around long enough to recognise with this kind of legislation, where government supporters just want to get it over with, for which I do not blame them, and the Opposition want to ensure, even at this eleventh minute of the eleventh hour, that they have a few more opportunities to point that this really is a bad Bill-a view held not only by the Opposition but by the whole of the medical profession and, as far as we know, most of the public.



19 Mar 2012 : Column 651

4.15 pm

This is not about the merits of the Bill but about a delay of, in my estimate, three weeks. Would the Minister please-there are no business managers alongside him on the Bench at the moment-put to us his estimate, if this amendment were passed, of the last possible date when Third Reading would have to be considered in order for the Bill to have the opportunity to become law during this Session? My estimate is three weeks but no doubt the Government have a more specific one. When he has given us that estimate, will he explain what damage would be done to the parliamentary procedures of this House or, far more importantly, to the health service should the amendment be carried? That is all that we have to consider today. If he gave us an answer to that question, that would enable those of us who intend to vote for the Motion, as I certainly do, a lot more justification for doing so on the basis of how he replied.

Lord Phillips of Sudbury: My Lords, I would like to add to the question well raised by the previous speaker and ask the Minister to go one step further. I reread the wording of the amendment of the noble Lord, Lord Owen, and I am not entirely clear what the effect would be if, when the Tribunal's detailed reasons were made available, the Government then decided to appeal that decision. Would that put an end to the noble Lord's attempt to have the risk register available before we finalise the Bill or would it mean, as I think from the wording that it would, that the matter was at an end and we would proceed to Third Reading?

Lord Armstrong of Ilminster: My Lords, I support the noble Lord, Lord Fowler, and my noble friend Lord Wilson of Dinton in advising the House not to support the Amendment to the Motion. I do not want to go into any more detail on the risk registers. They need to be comprehensive and candid; if there is a risk of publishing them, the compilers will be less likely to make them as comprehensive and candid as they need to be in order to be of value. When the Information Commissioner suggests that, even if this is published, people will be equally comprehensive and candid in future, I am afraid that I think he is guilty of wishful thinking.

There is a process with this risk register. I understand that we have not yet seen the reasons for the decision reached by the Tribunal. When that is known, the Government have the right to appeal. I hope that they exercise it because the considerations against publication, as they have been stated more than once today, are very cogent. That process is likely to take a great deal longer than the three weeks that the Amendment of the noble Lord, Lord Owen, gives the Bill. The only sensible course now is to disentangle the business of the risk register and the business of passing the Bill, to let the Bill go forward and not to support the Amendment to the Motion.

Baroness Thornton: My Lords, little needs to be added to the eloquent and succinct arguments deployed by the noble Lord, Lord Owen, and built on by my noble friends Lady Jay, Lord Peston and Lord Grocott, and my noble and learned friend Lord Falconer. These arguments are in the best liberal tradition and should be supported by anyone who genuinely believes in openness and transparency.



19 Mar 2012 : Column 652

Many people inside and outside the House have expressed concerns about the risk posed by this Bill, especially the implementation of the biggest-ever reorganisation of the National Health Service. It was those fears that led to the initial request by my right honourable friend John Healey 18 months ago. I do not think that even the noble Baroness, Lady Murphy, could imagine that it was a plot of some kind to delay the Bill at this point. I can assure the noble Baroness that that it is not the case. What is being considered here is a risk register maintained for the transition programme; for the work necessary to implement the changes in the Bill. That is going to be done together with delivering the Nicholson challenge, so there are huge challenges to our National Health Service. It is not the same as a departmental risk register, which might be closer to policy matters and advice, and the concerns expressed by many noble Lords, particularly those who have been Ministers and Permanent Secretaries.

My noble friend Lord Grocott is right. What is being asked for here are three weeks to see what this says. Surely the balance of public interest lies in disclosure, to enable consideration of this Bill to be as effective as possible. In short, we needed it in November to do our job adequately and we still need it. Noble Lords have said that it will be now out of date, but that is a question I asked many months ago and I was assured that it would not be the out-of-date register that would be available, but the most current. I say to those representatives of Permanent Secretaries in your Lordships' House that the last time they engaged with this matter-never with the Bill, but with this matter-I quoted "Yes Minister" at them. I shall be less elevated this time. I shall use the Mandy Rice-Davies defence and say, "Well, they would say that, wouldn't they?".

I agree that it is time to move on. The issue is simple enough; we need to understand the risks in order properly to consider the Bill. We did need them. We have time to take this matter in hand. The answers are very clear and we should support the noble Lord, Lord Owen.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, as ever I am grateful to the noble Lord, Lord Owen, for speaking in such clear terms to the amendment he has tabled. I am equally grateful to other noble Lords who have contributed to this debate, on both sides of the argument. At the heart of this, I suggest that the noble Lord, Lord Owen, is putting forward two propositions. The first is that the Government have concealed the nature of the risks associated with the Health and Social Care Bill and therefore the House has a right to be made aware of what the department's transition risk register contains. The second proposition is that the Government's refusal to publish the risk register is inherently improper under the terms of the Freedom of Information Act. In other words, the alleged sin of concealment on the part of Ministers is compounded by an unreasonable obduracy in not complying with the decision of the Information Commissioner and now the First-tier Tribunal. It will not surprise the House to hear that I fundamentally reject both propositions. First, the suggestion that the Government have consciously set about concealing the risks associated with the NHS-



19 Mar 2012 : Column 653

Lord Owen: Before the noble Earl continues on that path, I have never used the word "concealment" in any of the many speeches I have made on this Bill. I also do not believe that it is improper for the Government to appeal on both those points. I do not mind my argument being destroyed, but if there has been any lack of clarity, I have said neither of those propositions.

Earl Howe: I accept the first point. In his article yesterday in the Observer, he called it "constitutional outrage"- or words to that effect-which was the point of my second proposition. Other noble Lords have made the accusation that the Government have consciously set about concealing the risks associated with the NHS reform programme, but that allegation does not stand up to a moment's scrutiny.

The Bill was published some 14 months ago. During that time it has been subjected to a level of analysis, both inside and outside Parliament, that is without recent precedent. I am not just referring to the Bill's impact assessment, which runs to 200 pages and dissects the risks, costs and benefits of the Bill clearly and meticulously. Nor am I referring only to the two successive NHS operating frameworks of 2010 and 2011, which lay out for all to see the risks of putting the NHS reform programme into practice, and how the service can best mitigate those risks. Nor do I wish to highlight only the extensive oral and written evidence that we provided to two House of Commons Select Committees, whose reports took apart a very wide range of risks to which the reforms give rise and made recommendations on the back of that. As much as any of these documents, it is the debates that have taken place in Parliament that have aired the risks associated with the Bill. When added together across both Houses, those debates have been of unparalleled duration and scope.

Noble Lords may recall the statement that I made on 28 November 2011, in which I set out a list of nine headings, summarising the areas of risk contained in the transition risk register. Many of those areas of risk have been the subject of amendments and debates during the Bill's passage through the House. For example, one of the risk areas was,

Noble Lords will need no reminding of the amendments that we agreed across the House on the chain of accountability in the NHS or the lengthy debates that preceded them. A further risk area was,

We have debated and passed amendments on health inequalities, conflicts of interest, research, education and training and a whole lot more, all of which will directly contribute to those worthwhile objectives. Another area was how,

Our debates on integration, the tariff and many other topics have focused on that theme, and there are more such examples. Therefore, I cannot accept for one minute that without sight of the transition risk register

19 Mar 2012 : Column 654

the House has somehow been denied a deep insight into what the Bill means for the NHS. It is an absurd proposition.

Why, then, is there such an issue over the release of the risk register? We heard the answer to that from the noble Lord, Lord Wilson of Dinton. We are dealing here with something for which I make no apology-namely, a point of principle. It is very firmly the view of the Government-here I refer to departments right across Whitehall-that the release of departmental risk registers would seriously undermine the work of civil servants if it became an accepted practice. Civil servants need to be able to formulate policy advice for Ministers fully, frankly and without fear that what they say may be exposed to the public gaze. The moment that officials feel inhibited in setting out the possible risks attached to a course of action in worst-case terms, the process of policy formulation becomes weaker and good government inevitably suffers. It is our belief, as it has been the belief of successive Governments, that to agree to the release of a risk register such as the one associated with the Bill would be to cross a Rubicon. It would remove the safe space that Ministers and civil servants need to do their job thoroughly and properly.

The potential for making that judgment was explicitly recognised and allowed for in the Freedom of Information Act. Indeed, our decision to invoke the Act in order not to release the department's strategic risk register was upheld by the First-tier Tribunal. We await the tribunal's reasons for arriving at this conclusion, and for arriving at the opposite conclusion with regard to the transition risk register. When those reasons are before us, the Government will need to take a decision on whether there may be grounds for a further appeal. Until then, no one can tell what the legal basis of the judgment is.

4.30 pm

The judgment is puzzling, in that the arguments we advanced in defence of our appeal were exactly the same in both cases. That was no accident, not least because substantial areas of the transition risk register are covered in the strategic risk register. There is a large overlap between the two documents. The tribunal chairman, Professor Angel, has said that the case is complex and that the reasons cannot therefore be produced within a short timeframe. Equally, that very complexity will almost certainly mean that the Government will need to take the time allowed for them to consider their options, once the tribunal's reasons are before us. I contend that it is perfectly legitimate for the Government to exercise their right to do that, and the Bill should not be held as a hostage to that process.

Indeed, this decision will have implications not just for this Government but for all subsequent Governments. This is not and should not be a decision taken in haste. The Government may well require the full 28 days available to them in order to make a decision. At this point, I cannot rule out that Ministers may choose to appeal again. This is not a simple matter to be resolved quickly. If any noble Lords, such as the noble Lord, Lord Grocott, are harbouring such a belief, I would respectfully encourage them to think again.



19 Mar 2012 : Column 655

Lord Grocott: The point was not about any length of time that the process of appeal might take. This Motion specifically rules out any delay on that basis. It states that Third Reading should take place whichever is the sooner-when the decision is made or whenever is the final date for consideration of Third Reading before the end of the Session. I put it again to the noble Earl: what is his estimate of the last date that we could consider the Third Reading in time for the Bill to become law in this Session?

Earl Howe: My Lords, I take that to be the meaning of the Motion; in fact, it presents the House will an either/or decision, which if passed, would leave us in an uncertain situation. However, I take it that the Motion of the noble Lord, Lord Owen, means that, failing the first alternative, the second applies.

I have discussed the parliamentary timetable at length with my noble friends, as might be supposed. I am advised that in reality there is little time left in this Session, but there is a great deal of business left to complete: the Legal Aid, Sentencing and Punishment of Offenders Bill is on Report; the Scotland Bill is still in Committee; and we await our amendments to other Bills to come back from the other place, whose own schedule is complicated by the Budget, Easter and the Finance Bill. The clear advice that I have received from the business managers is that to delay Third Reading to await the tribunal's reasons and a government response would put into serious jeopardy all the excellent work that this House has done to make this a better Bill.

I put it firmly to the House that we need to get on with the Bill. Today is the 25th full day on which we have been discussing it, and during that time it has been greatly improved. There is no major issue in it to which the House has not done justice. Delaying Third Reading would, in my submission, be wrong and wholly unwarranted. We need to get on with it, and the NHS needs certainty-the certainty of the Bill being on the statute book. I therefore urge your Lordships in the strongest terms to reject the Motion of the noble Lord, Lord Owen, and allow Third Reading to proceed this afternoon.

Lord Owen: My Lords, we have heard a lot of speeches and I do not intend to take long, but I reiterate-if any noble Lord has come in late to this debate-that they should again read the amendment. It makes it clear that what we are trying to do is find enough time-a matter of a few weeks-to hear the opinion of the tribunal that has found against the Government on the disclosure of the risk register. That is a provision within the Freedom of Information Act and follows the earlier decision against the Government arguing for the disclosure of the transitional risk register by the commissioner.

It is pretty unusual for the Government to find two such rulings against them, and it seems perfectly legitimate, before making a final decision-which I readily concede has to be made before Prorogation-to give the courtesy, let alone anything else, of hearing the judgment. It is almost as if we are afraid of the judgment.

In fairness to Professor Angel, we heard from the former Lord Chancellor about his credentials. People do not sit on the tribunal for freedom of information

19 Mar 2012 : Column 656

just on one case. They have made many different judgments; they know the issues. With respect to the former Permanent Cabinet Secretaries who have spoken, those who sit on the tribunal know the issues-I do not say as well as former Cabinet Secretaries, but they were looking at it from one side of the equation, the well-being of the Civil Service and the service and information they gave to Ministers. The Freedom of Information Act looks at it from a wider perspective. It looks at it for the good governance of the country as a whole. It urges people to look at why we have open government and greater transparency: because people find it much easier then to accept democratic decisions. This is about a democratic process.

Lord Alderdice: My Lords, I have listened carefully to what the noble Lord, Lord Owen, has said. My understanding from his earlier intervention was that he felt it important for your Lordships' House to understand what was in the transitional risk register so that that would inform its debate on Third Reading. In the light of what my noble friend Lord Howe said-that it is almost certain that that material would not come into the public domain over the next few weeks, as I think that the noble Lord accepts-all that would come into the public domain over the next few weeks would be the reasons why the judgment was made, not the content of the transitional risk register itself. Therefore, I just want to be clear that the noble Lord is saying that all that your Lordships' House could do would be to debate the reasons of the tribunal, not the content of the risk register. I am not clear how the reasons of the tribunal would inform our Third Reading debate.

Lord Owen: It is exactly the wording of the amendment,

if there is sufficient time. This is the issue of freedom of information. I have already openly admitted that Governments tend to restrict information and Oppositions want the maximum amount of information. That is the inherent tension which the Freedom of Information Act was established to try to resolve. It seems wiser to listen to those voices.

The noble Earl raised the question of constitutional issues. The Bill raises some serious constitutional issues. The Government have no mandate for the Bill. They specifically went to the electorate and said that there would be no top-down reorganisation of the National Health Service. That is considered by a lot of people outside this House to be a flagrant lie. That is one constitutional issue.

Noble Lords: Oh!

Lord Owen: I said that people outside this House consider it to be a flagrant lie. I have been around Parliament long enough to know what I cannot say and what I can.

There is another aspect to the Bill. The Government also fought an election on the basis of a constitutional promise that there would be no increase in the powers of EU legislation unless there was a referendum. There are very serious questions about the Bill as to the impact on EU legislation and the extent to which we will see the Commission making decisions on the

19 Mar 2012 : Column 657

National Health Service that it has not hitherto thought it either wise or, possibly, empowered to make. That is the second big constitutional question.

Lord Clement-Jones: My Lords-

Lord Owen: No, the noble Lord has had his say. All I am saying now to the House is that this is a decision on which there are strong opinions in many ways. A lot of Members will vote just on the basis that under no circumstances do they want risk registers published.

I say only this-that when companies are having an IPO, we legislate for them to produce the fullest, most detailed risk register of this. We also empower them in their annual, and in the case of America in their quarterly, statements to reveal risk registers at a penalty of going to court if they lie about it. There were times in this debate when I almost thought we were being asked to give a complete carte blanche to the Civil Service to say what it liked irrespective. I hope that is not the position of the Cabinet Secretaries and the Permanent Secretaries. It is possible that either a commissioner or a tribunal might look at a risk register and think that there were flagrant factual errors.

I think it is very dangerous to use "principle" on this question, if I may say so to the noble Earl. The principle surely cannot be that under the Freedom of Information Act some risk registers might never need to be published in the public good. That is a judgment on which, as he says, one can then go to appeal. However, there comes a point when one would have to judge against the background of repeated demands for disclosure. It is on this that the House must make up its mind. Can we wait a couple of weeks-three at the most-before the House prorogues to hear the words of the chairman of the appeal tribunal to whom we in the Freedom of Information Act gave the power to make that decision? The fact that it is against the Government does not mean we should give them a carte blanche, and I hope that this House will not do so. I wish therefore to test the opinion of the House.

4.41 pm

Division on Lord Owen's amendment.

Contents 213; Not-Contents 328.

Amendment disagreed.


Division No. 1


CONTENTS

Adonis, L.
Afshar, B.
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.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Billingham, B.
Bilston, L.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.


19 Mar 2012 : Column 658

Corston, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Drayson, L.
Dubs, L.
Eatwell, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Exeter, Bp.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greenfield, B.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hall of Birkenhead, L.
Hameed, L.
Hanworth, V.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Hastings of Scarisbrick, L.
Hattersley, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Howie of Troon, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hutton of Furness, L.
Hylton, L.
Imbert, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Birmingham, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
King of Bow, B.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Leicester, Bp.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, 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.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Monks, L.
Moonie, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Manchester, L.
Morris of Yardley, B.
Moser, L.
Myners, L.
Noon, L.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Owen, L. [Teller]
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Radice, L.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Robertson of Port Ellen, L.
Rogers of Riverside, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
St Edmundsbury and Ipswich, Bp.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Skidelsky, L.
Smith of Basildon, B.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.


19 Mar 2012 : Column 659

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]
Turnberg, L.
Turner of Camden, B.
Valentine, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.

NOT CONTENTS

Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Allenby of Megiddo, V.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Bates, L.
Bell, L.
Benjamin, B.
Berridge, B.
Best, L.
Bichard, L.
Bilimoria, L.
Birt, L.
Black of Brentwood, L.
Blencathra, L.
Boothroyd, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Butler of Brockwell, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
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.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Cormack, L.
Courtown, E.
Coussins, B.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crawford and Balcarres, E.
Crickhowell, L.
Cumberlege, B.
Dannatt, L.
De Mauley, L.
Dear, L.
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Emerton, B.
Empey, L.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman, L.
Feldman of Elstree, L.
Fellowes, L.
Fellowes of West Stafford, L.
Fink, L.
Flight, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glasgow, E.
Glendonbrook, L.
Glentoran, L.
Gold, L.
Goodhart, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.


19 Mar 2012 : Column 660

Greengross, B.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Hennessy of Nympsfield, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jay of Ewelme, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kakkar, L.
Kerr of Kinlochard, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Laming, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Lloyd of Berwick, L.
Lloyd-Webber, L.
Loomba, L.
Lothian, M.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Macdonald of River Glaven, 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.
Mancroft, L.
Mar, C.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Martin of Springburn, L.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Hendon, B.
Montagu of Beaulieu, L.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Murphy, B.
Naseby, L.
Neill of Bladen, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Donnell, L.
O'Neill of Bengarve, B.
Oppenheim-Barnes, B.
Palmer, L.
Palmer of Childs Hill, L.
Palumbo, L.
Pannick, L.
Patel, L.
Patten, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Prashar, B.
Quirk, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton of Mount Harry, L.
Ribeiro, L.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Ryder of Wensum, L.
Saatchi, L.
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.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Singh of Wimbledon, L.
Skelmersdale, L.


19 Mar 2012 : Column 661

Slim, V.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Sterling of Plaistow, L.
Stevens of Ludgate, L.
Stirrup, 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 Holbeach, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Winchester, B.
Tope, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Trumpington, B.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Vinson, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walton of Detchant, L.
Warnock, B.
Warsi, B.
Wasserman, L.
Watson of Richmond, L.
Waverley, V.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williamson of Horton, L.
Willis of Knaresborough, L.
Wilson of Dinton, L.
Wilson of Tillyorn, L.
Wolfson of Sunningdale, L.
Wright of Richmond, L.
Young of Graffham, L.
Younger of Leckie, V.

Bill read a third time.

4.58 pm

Clause 8 : Secretary of State's duty as to promoting equality of provision

Amendment 1

Moved by Lord Patel of Bradford

1: Clause 8, page 4, line 17, leave out "promoting equality of provision" and insert "reporting on and reviewing the treatment of providers"

Lord Patel of Bradford: My Lords, I speak to Amendments 1 to 6 in respect of Clause 8 of the Bill. As noble Lords will no doubt have realised, Amendment 1 is slightly different from the one that was debated on Report and I will explain why my noble friend Lord Noon and I have tabled it.

VAT recovery for charities is an important issue and one that has received considerable support. Indeed, my previous amendment to the Bill was passed. I will not repeat all the arguments made on Report but given the changed nature of the amendment I feel I should explain some of the differences.

I am very indebted to Sue Ryder Care for its support and invaluable information in preparing this amendment. It stems directly from its campaign, which started in 2011, to raise awareness about the problem of irrecoverable VAT for charities providing healthcare services. For example, the NHS is able to recover VAT on certain non-business supplies that charities cannot. This may hinder them from taking full advantage of the Government's agenda, which will see more services outsourced from the NHS to other providers. It can be seen as a significant barrier to entry for charities which may be forced to use their charitable funds to pay the VAT.



19 Mar 2012 : Column 662

5 pm

Of course, each service has a different VAT bill and recovery rate based on their expenditure on a range of non-business supplies. However, last year Deloitte estimates, produced for Sue Ryder, suggested that in future every £10 million spent by PCTs or the NHS in outsourcing to the charitable sector could result in an additional VAT burden on these charities of £400,000. However, while the VAT question remains paramount, since that amendment was passed, two additional issues have become increasingly clear to me. First, it is not just charities that see VAT as a barrier to entry in this instance. Other providers, such as social enterprises, co-operatives and mutuals, are also disadvantaged in the same way. Secondly, VAT is not the only barrier that exists for these organisations. Wider issues, such as TUPE liabilities, the ability to access or repay capital and contractual arrangements are just a few other examples.

For this reason, I have chosen to broaden the scope of this amendment, and I am extremely grateful for the Minister's support in this. This amendment now calls for the production of a report with recommendations to be laid before Parliament by the Secretary of State within a year on any matters that may affect the ability of charities, social enterprises, co-operatives and mutuals to provide healthcare services for the NHS. There are clearly significant barriers for charities and other not-for-profit agencies seeking to take on the provision of health services, most notably the kind of end-of-life care services that are provided by organisations such as Sue Ryder.

I shall briefly just remind noble Lords why these services are so valuable. A recent survey for Sue Ryder shows that 40 per cent of people in Britain would turn to a charity for support if they were diagnosed with a life-changing illness. Part of the reason for that is the high-quality personal care they would receive. Sue Ryder hospices support people to continue to be able to do the things they want to do when they are facing the most difficult times of their life. This includes a wide range of activities from facilitating weddings and christenings to working to fulfil an individual's last wishes.

One example I heard of, which struck me particularly, is of an inpatient who loved playing in the snow and wanted to build a snowman. She was too ill to do so herself, so two nurses went out and built it for her. They built it right outside her room so she could see it from her window. Three years later, it is still this additional touch that her husband remembers. Another example is an 18 year-old man who was admitted to the hospice as an inpatient. His main interest was flying model helicopters, and the nursing staff helped him to make a helipad and placed it on one of the desks in the hallway outside the bedrooms. At night, he was able to fly his helicopter around the unit with much amusement and without disrupting anyone else. The nurses even turned the lights out at night to make it more of a challenge for him. I could give many more examples of extraordinary care and imagination in what must be among the most difficult times of people's lives. Clearly, we want to see more of this kind of care and to remove any or all barriers that may exist to prevent this across the not-for-profit sector.



19 Mar 2012 : Column 663

The growing not-for-profit sector is an important part of our social fabric. The desire for service users to exercise more choice and control over the services they receive will result in the inevitable diversification of this sector. It has also become increasingly clear that the general population see a role for charities in the delivery of health services. This will bring about profound changes in the shape of the sector as more small providers start to take on the delivery of services.

However, it is important that we not only encourage charities and other not-for-profit agencies but that we ensure the full playing field they enter into is fair. Since our previous debate, the Minister and officials in the department have been extremely co-operative and are as keen as I am to see the barriers broken down for the full range of providers. There are indeed a number of additional barriers. I shall highlight a handful by way of example that I believe the report laid by the Secretary of State should address.

The barriers include, for example, burdensome liabilities and delays in taking on TUPE responsibilities. The Government clearly recognise that TUPE does not work as smoothly as intended, and in November issued a consultation on the effectiveness of its regulations. TUPE liabilities can be unpredictable and overly bureaucratic with room for interpretation. In fact, a recent response to the BIS consultation on TUPE regulations from the Voluntary Organisations Disability Group stated:

"Many social care organisations will now take the decision not to proceed with tenders due to the specific requirements of the TUPE transfer involved, or the lack of clarity surrounding it".

Current TUPE regulations require information on transferring liabilities under TUPE to be provided just 14 days before the transfer. This can leave little time to consider the information, examine its impact and plan to mitigate any problems that can arise. In addition, the Voluntary Organisations Disability Group report highlights that this can make it difficult to negotiate the right price paid or the contract fee negotiated for the takeover of the service.

Access to, and use of, capital can also act as a barrier. Clearly, capital investments should be used for service innovations rather than the day-to-day running of a service, and while access to capital for the not-for-profit sector has undoubtedly been improved in recent years, it still experiences problems due to the time afforded for charities to raise this capital. For example, Sue Ryder has a capital appeal under way for the building of a new state-of-the-art hospice in Peterborough that will increase patient choice and the quality of care provided. This appeal needs to raise £6 million over a number of years.

It would not be possible for any sector other than the charity sector to raise funds in this way, and there is no doubt that it brings hospices an extra boost for this sort of work. However, unlike in the private sector, this sort of money raising can take time. This can act as a disadvantage to smaller organisations' ability to engage in the delivery of services, as they may be discounted by commissioners on the grounds that they do not have sufficient capital reserves. This is another issue that could be and should be examined

19 Mar 2012 : Column 664

by the review undertaken by the Secretary of State, with commissioners encouraged to look at the long-term picture in terms of service delivery.

The capacity and ability of the sector to take on certain risks is also problematic. I heard of one charity that wanted to take on a residential service but was given only a three-year contract, despite the risk liability on the lease of the building being for 25 years. I am not suggesting that charities should be given a 25-year contract, but there should be a fair consideration of this kind of risk attached with service transfers if the playing field is to be level. It is also the case that too many smaller charities and social enterprises are still being given only one-year contracts, despite this being against the Voluntary Sector Compact.

I have highlighted some of the wide range of issues that a report into matters which may affect the sector's ability to provide healthcare services should cover. I have no doubt there will be many others. All of these issues need to be considered and that is the purpose of this revised amendment.

My intention is clear: that the report that the Secretary of State should lay before Parliament will look at the issues of entry into the healthcare market in relation to charities, social enterprises, co-operatives and mutuals. It is not my intention that the amendment will look at the issues which may affect the private sector, although I would welcome consideration of those issues where the private sector may be far more favourably treated and thus disadvantage charitable and voluntary sector providers. I should be grateful if the Minister would confirm that this is also the Government's intention.

I realise that this will be dependent on the terms of reference for the Secretary of State's report and I would be more than happy to offer any assistance in drawing up these terms if the Minister feels that that would be helpful. I would also like the Minister to ease any anxiety from the sector and confirm that the recommendations from this report will not in any way financially disadvantage charities, social enterprises, mutuals and co-operatives. The intention is to look at how we bring down existing barriers and not to create new ones. I beg to move.

Lord Noon: My Lords, I speak in support of Amendments 1 to 6. I add my thanks to the Minister for his support in seeking to improve this Amendment, which I believe has been done in a number of ways. I should also declare an interest in these matters as chair of the Noon Foundation, which provides financial support to charities and other not-for-profit organisations, including those caring for people in end-of-life situations, such as the Marie Curie Cancer Care charity.

As a philanthropist and a businessman, I understand very well the importance of having a level playing field. We all know the immense value that is provided by charities, social enterprises and small voluntary agencies. I believe that they form the bedrock of our society. They provide essential support and care to those who are most in need, and do so on a daily basis.

The VAT issue for me is very clear. As someone who provides funding for charitable work, I do not want to see those funds taken up paying VAT that was not charged to the NHS when it provided the service.

19 Mar 2012 : Column 665

However, we need to go beyond VAT and look at all the barriers faced by the not-for-profit sector. As a business man, I understand the significant risks taken on in any new enterprise. There must be adequate time to accumulate capital, contracts must be fair and any additional undertaking such as the transfer of staff must be fully funded. So why should we expect any less of the charitable and not-for-profit sector? Is it fair that those organisations which exist solely for the benefit of those they serve should be penalised for not being wealthy private enterprises?

Even an issue such as insurance can be difficult. Most of these organisations rely on volunteers, people who have chosen to freely give their time because they want to give something back to society. However, as more services are taken on with a wider range of activities, the risks increase and so too do the insurance premiums. These increased costs are not always taken into account in contracts and can represent an excessive and increasing burden for charities.

However, this is not only about levelling up the playing field to be fair; this is about the kind of healthcare organisations we want to see thrive. At a time when government resources are severely challenged and shrinking-we cannot hope to manage solely on charitable donations-bringing the not-for-profit sector more firmly into mainstream provision of services is one of the ways in which we can continue to provide much needed care, but this will work only if we ensure that these organisations can enter the market fairly and with fully costed and supported service contracts.

In supporting these amendments, the Government are accepting that this is a vital issue and they have made a commitment to provide a report with recommendations within a set timescale. This represents a significant move in the right direction and I commend the amendments.

Lord Newby: My Lords, I strongly support the noble Lords, Lord Patel and Lord Noon, in seeking to promote the role of the not-for-profit sector within the NHS, as indeed I do across the whole of the public sector. They have given reasons why within the NHS, particularly at this point, the not-for profit sector can play a valuable role. As the noble Lord, Lord Patel, pointed out, there are a number of serious technical problems facing the sector in successfully bidding for contracts, and he has dealt with some of them.

I remind the House that least week Royal Assent was received for the Public Services (Social Value) Bill which requires all procurers, including those in the NHS, to consider the social value of a tender as well as its financial value, in such explicit terms, for the first time. This is one of the pieces of the jigsaw which I hope will mean that the not-for-profit sector finds it easier to successfully bid for business. The Bill lays a requirement on the public sector, but the problem is whether the public sector will implement the Bill and take the provision seriously. It would be relatively easy for it not to.

Therefore, I and other noble Lords, including the noble Baroness, Lady Thornton, who have been supportive of this principle and the Bill, seek to ensure that the Government put in place specific measures to ensure that procurers take account of the Bill rather than it

19 Mar 2012 : Column 666

simply lying idle on the statute book. When we debated this issue at an earlier stage in your Lordships' House, the Minister suggested that it might be possible to refer to this in the draft commission of procurement regulations, and I hope that he will be able to confirm today that that is the Government's intention.

Lord Warner: My Lords, I commend the Government on making a move in the right direction with these amendments. At earlier stages in the Bill, I tried to raise the whole issue of barriers to entry for new providers of services. This amendment helps in some respects but the noble Lord, Lord Newby, made an extremely important point. How will we know whether the culture has changed not just in relation to not-for-profits and social enterprises but for new providers, sometimes from inside the NHS? There is a deep conservatism-with a small "c"-about how the NHS goes about allowing new players to come into the game. We need the Government to give assurances that they will keep a close eye on this. As I put forward in a previous amendment, they must get Monitor to keep a close eye on the extent to which anti-competitive behaviour by the existing NHS stops new providers from whatever source-not-for-profit, social enterprise, charities, the private sector and from within the NHS-being able, when they offer a better solution to patients' problems, to make their pitch for an alternative way of doing business.

5.15 pm

Baroness Finlay of Llandaff: My Lords, I very much welcome the fact that these amendments have the Minister's name on them. He has already made some concessions in relation to indemnity for these providers where they provide services for and on behalf of the NHS for patients. It seems completely right that some of the difficulties that they have faced in being able to provide flexible patient and family-focused services should be considered and looked at separately. As has already been said, in end-of-life care the charitable sector has completely revolutionised what is available to patients. I know that Marie Curie has done that. They even admitted a dog so that a patient would come in, and allowed that dog to be formally adopted, which enabled the patient to die peacefully because the dog was the only person that the man really loved in life. That flexibility makes all the difference. You would not find that provision or ability to meet an individual patient's needs in many other parts of the sector.

This group of amendments is really important and to be welcomed. This morning, I was with Help the Hospices, which expressed concern on behalf of some very small organisations as to how they would cope in the new world in being able to continue providing the services that they want to. This group of amendments will provide them with a great deal of assurance.

Earl Howe: My Lords, I am pleased to conclude what has been a very good and constructive debate. I am extremely grateful to the noble Lord, Lord Patel of Bradford, for raising these important issues, both now and in Committee. As he stated, since his original Amendment 46 was introduced in Committee, we have

19 Mar 2012 : Column 667

worked together on this alternative amendment. While this has to some extent been a joint venture, all credit for the inspiration behind it must go to the noble Lord-along with the noble Lord, Lord Noon, whose strong commitment to the charitable sector is well known.

I can add little more to what the noble Lord has said, but it might be helpful to clarify a small number of points. First, I reassure the House that the Government are committed to a fair playing field for all providers of NHS services. We are particularly keen for voluntary sector organisations and social enterprises of all types and sizes to be involved. These providers are often among the most innovative and can offer highly personalised and bespoke services that meet the needs of local people. We understand that it is not just charities but the full range of voluntary sector providers-mutuals, co-operatives and social enterprises-that noble Lords are keen to see delivering NHS services. The new amendment enables a fair, transparent and impartial consideration of the issues, addressing all providers and possible means of responding to their concerns. I can confirm that the full intention is to look at how existing barriers can be removed, not to create new obstacles.

Secondly, as noble Lords are aware, a variety of barriers affect different providers. This includes not only payment of taxation but also access to and the cost of capital, the difficulty of securing appropriate insurance and indemnity, and the difficulty of bidding due to the scale or scope of contracts. The amendment therefore relates to a review of the full range of issues that affect the ability of providers or potential providers to deliver services for the NHS. I am sure noble Lords will agree that the potential is truly enormous.

We are clear that this is an important issue, which is why we want the report to be statutory and therefore accountable to Parliament and produced within 12 months of Royal Assent. Equally, it is crucial that the duty for the Secretary of State to keep these matters under review is in the Bill.

I can also assure noble Lords that the preparation of the report will involve full engagement with providers from all sectors, commissioners, and other stakeholders, such as Members of this House, to ensure that the full range of issues are considered and each of the concerns addressed. In particular, it will ensure that concerns around treatment for VAT of supplies of healthcare services or associated goods to the NHS by charities, including hospices, are considered. In response to the specific question of the noble Lord, I can confirm we would not see this review as in any way being slanted towards giving private sector firms a 'leg up'.

This review will look at the barriers to achieving a fair playing field, and recommend actions to be taken to address them. We are already well aware that a number of the most deep-seated barriers affect voluntary sector providers, not those from the private sector. While I would not want to prejudge the result of the review, I fully expect that it will put forward a number of actions which could be taken to remove such barriers, thereby better enabling third sector providers to compete fairly with other providers of NHS services. I hope this reassures the noble Lord that, while I think we should look across all providers, it is our view that

19 Mar 2012 : Column 668

barriers facing voluntary sector providers are greater than those facing the private sector and we expect the review to focus accordingly on those.

I turn to the separate but related issue raised by my noble friend Lord Newby. We have also listened to the matters raised in other debates during this Bill and during the passage of the Public Services (Social Value) Bill, about the need to take social value into consideration in public sector procurement more generally. The Government agree that a wide-angle lens on the extended social, economic and environmental benefits when conducting procurement exercises can only be helpful. Today I am going further and put on the public record that the Secretary of State for Health is committing that the requirements in the public services Bill will be fully applied in relation to commissioning of NHS services through the procurement guidance that the board will produce on this. These were issues that were raised very compellingly by the noble Lord, Lord Mawson, and I pay tribute to him for his powerful and consistent advocacy on this theme.

I hope very much that your Lordships will find the amendment of the noble Lord, Lord Patel of Bradford, agreeable and I will be happy to support it.

Lord Patel of Bradford: I am very grateful for the Minister's support in this and for taking it a lot further than I had done initially. I have learnt an enormous amount while we have been discussing these issues and I am sure that the not-for-profit sector will be very grateful for the support provided by the Government on this issue. I am sure it will raise a number of very important factors that will improve service provision for those areas.

Amendment 1 agreed.

Amendments 2 to 6

Moved by Lord Patel of Bradford

2: Clause 8, page 4, line 18, leave out from beginning to second "the"

3: Clause 8, page 4, line 19, leave out from "must" to "within" in line 20

4: Clause 8, page 4, line 21, leave out "this Act" and insert "the Health and Social Care Act 2012"

5: Clause 8, page 4, line 22, leave out from beginning to end of line 24 and insert "of NHS healthcare providers as respects any matter, including taxation, which might affect their ability to provide health care services for the purposes of the NHS or the reward available to them for doing so."

6: Clause 8, page 4, line 24, at end insert-

"(2) The report must include recommendations as to how any differences in the treatment of NHS health care providers identified in the report could be addressed.

(3) The Secretary of State must keep under review the treatment of NHS health care providers as respects any such matter as is mentioned in subsection (1).

(4) In this section-

(a) "NHS health care providers" means persons providing or intending to provide health care services for the purposes of the NHS, and

(b) "health care services for the purposes of the NHS" has the same meaning as in Part 3 of the Health and Social Care Act 2012."

Amendments 2 to 6 agreed.



19 Mar 2012 : Column 669

Clause 23 : The NHS Commissioning Board: further provision

Amendment 7

Moved by Earl Howe

7: Clause 23, page 23, line 8, after "13E" insert ", 13G"

Earl Howe: My Lords, I will speak also to Amendments 9 and 10. The three amendments in this group share a common purpose in strengthening the duties on the NHS Commissioning Board and CCGs in relation to reducing inequalities. I am grateful to my noble friend Lady Tyler for highlighting on Report the need to ensure this, and I promised at the time to introduce the necessary amendments at Third Reading to achieve it.

New sections 13G and 14T place duties on the NHS Commissioning Board and CCGs to have regard to the need to reduce inequalities between patients with respect to their ability to access health services, and to the outcomes achieved for them by the provision of health services. As the Bill stands, the NHS Commissioning Board and CCGs must assess in their annual reports how they have discharged this duty. However, they are not explicitly required to plan for this and, in the case of CCGs, not specifically assessed on this in the board's annual performance assessments. These amendments introduce explicit requirements on these points. They require the board to include in its business plan, and CCGs to include in their annual commissioning plans, an explanation of how they intend to discharge their inequalities duties. I remind noble Lords that CCGs will consult on their commissioning plans with those for whom they are responsible, and must involve each relevant health and well-being board in preparing and revising their plans.

The amendments also require the board to specifically assess in its annual performance assessment of CCGs how they have discharged their inequalities duty. So CCGs will have to set out in their plans how they will take account of the need to reduce health inequalities and report on how they have done this in their annual reports, which is of course already a provision in the Bill. Their performance on this will then be one of the factors taken into account by the board when it assesses their performance. Together, these amendments ensure that from the development of the plans to the reporting on their effects, having regard to the need to reduce inequalities will be given particular emphasis and importance by commissioners. I beg to move.

Baroness Tyler of Enfield: My Lords, I shall speak to government Amendments 7, 9 and 10, to which my name is attached, and in so doing I thank the Minister for tabling them. As he has explained, they all relate to health inequalities; I would like briefly to place them into a wider context. In doing so, given that this is Third Reading, I make one general point. My view from the outset has been that this Bill should be judged ultimately by the health outcomes it produces-essentially, whether and how it improves people's lives, particularly the most vulnerable. Because so much of the debate over the past year has-necessarily, I guess-been about structures, I sometimes feel that we have rather lost sight of this fundamental point. One specific

19 Mar 2012 : Column 670

point that has not received enough airspace in our deliberations, perhaps until today, is about reducing health inequalities-or, put another way, doing something real about unequal life chances. At the very outset, I felt that the fact that this legislation contains a landmark legal duty for the Secretary of State to reduce health inequalities was really significant.

As the noble Earl has explained, as the Bill has progressed through its various stages this duty has been strengthened at various levels in the new structure, so that reducing health inequalities now runs through the whole fabric of the health system in a way that we have not seen before. I will not repeat precisely what these amendments do, because they have been very ably set out. Briefly, however, in relation to the requirement that each CCG's performance is assessed each year by the board and includes the progress made in reducing health inequalities, we all know that what gets measured gets done. That is what makes this significant.

However, we should not look at these specific duties in isolation from other key aspects of the Bill on accessibility and integration. New duties to join up services between health, social care and other local services, such as housing and homeless support, will have a crucial role to play here. The role of health and well-being boards in promoting joint commissioning should enable more integrated services, particularly, for example, for older people and people with learning disabilities. Finally, the much stronger focus on public health-I greatly welcome its return to local authorities-will be key to tackling issues such as obesity, smoking, drug and alcohol abuse and sexual health, which make a real difference in reducing health inequalities. This all adds up to a much stronger package than we have had before. Of course, the proof of the pudding will always be in the eating, but this very welcome shining of the spotlight on health inequalities has the potential to be a game-changer for some of the most vulnerable.

However, in case noble Lords think that I am being too uncritical, I finish on a point of concern. Local authorities are well placed to tackle inequalities, due to their responsibilities for education, housing and other factors which impact on health. The current proposition for holding councils to account for this is through what the Government call a health premium, to give extra money to those areas that reduce health inequalities. We need to be careful that this does not simply reward those areas where it is easiest to tackle inequalities and divert money away from areas where more fundamental problems may slow down progress.

In thanking the noble Earl most sincerely for tabling these amendments and paying tribute to his strong personal commitment on these issues, I respectfully ask him whether he will keep the health premium under review as it is rolled out.

5.30 pm

Earl Howe: My Lords, I am very grateful for the helpful and supportive comments that have been made by my noble friend. I can give her the assurance that she sought in her closing remarks that we will certainly keep the health premium under review. However, she will know that the design of that premium is work in progress at the moment and I take fully on board the point that she made about it.



19 Mar 2012 : Column 671

It is perhaps helpful if I make it absolutely clear that the duties on commissioners in respect of reducing inequalities are intended to be as important as any other duty on a CCG, and are most definitely not subordinate to other duties. In particular, I would like to make it clear that they are not secondary to the duties in relation to patient choice.

I hope that noble Lords will recognise that these amendments give a central place to the duty in relation to reducing inequalities within the arrangements by which the board and CCGs will plan for, and be held to account for, their commissioning activity. I hope that for this reason noble Lords will give them their support.

Amendment 7 agreed.

Clause 26 : Clinical commissioning groups: general duties etc.

Amendment 8

Moved by Baroness Finlay of Llandaff

8: Clause 26, page 39, line 24, at end insert-

"( ) the provision of integrated urgent and emergency care at all times."

Baroness Finlay of Llandaff: I am grateful to the Minister for meeting me with the President and Vice President of the College of Emergency Medicine and for listening so attentively to the concerns raised. This amendment comes from those discussions and aims to resolve the potential lacuna around the commissioning and the provision of unscheduled urgent and emergency care at all times of day and night.

Emergency medicine departments-commonly known as A&E-see 15 million patients a year, of whom about a quarter are children. About 7.5 million patients arriving in A&E are not ambulant. Typically one-third of these on a stretcher need to be admitted, most frequently into an acute medical bed. The extent of seriously ill and injured attendees is illustrated by the fact that one in 50 will need high levels of care. A quarter of all intensive care admissions come through A&E and seriously ill patients go straight to coronary care and high dependency units from the resuscitation room in the emergency department.

The full spectrum of integrated services has to involve acute medicine, acute surgery and orthopaedics, paediatrics, obstetrics and gynaecology and is crucially underpinned by critical care and anaesthesia.

These very seriously ill patients need integrated services along the whole care pathway; care cannot be broken up. The full spectrum of back-up services with radiology and laboratory services needs to be there 24/7. The best outcomes-and we were talking just now about patient outcomes-for trauma and stroke victims are absolutely reliant on immediate cross-sectional imaging, ideally co-located in the emergency department.


Next Section Back to Table of Contents Lords Hansard Home Page