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The second-tier appeals test was introduced by Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 for certain appeals from the Upper Tribunal to the Court of Appeal. During the passage of the Borders, Citizenship and Immigration Bill in 2009, your Lordships voted through amendments to prevent the test applying to immigration and nationality appeals. This amendment derives from the wording of the amendment originally tabled by my noble friend Lord Lester of Herne Hill, QC, the noble Lord, Lord Pannick, QC, and the noble and learned Lord, Lloyd of Berwick, and subsequently adopted by my noble friend Lord Thomas of Gresford and the late Lord Kingsland as part of a wider amendment concerning the Upper Tribunal. The Joint Committee on Human Rights had concurred with the legal opinion of Sir Richard Buxton, a recently retired Lord Justice of Appeal in the Court of Appeal, that the introduction of such restrictions might not be compatible with the UK's international obligations.

The same considerations apply now as they did then, and there is a new factor. The increased rotation of judges under the Crime and Courts Bill will mean that there are more judges in the Upper Tribunal who are not immersed in these cases making asylum and immigration decisions, and they will be without the supervision of the Court of Appeal if the clause is unamended. At the moment, we continue to see the higher courts engaged on these issues. There are some poor tribunal decisions but, to be fair, this is an incredibly complex, difficult and fast-moving area of the law. The tribunal judges sitting from time to time in the immigration and asylum chambers of the tribunal may be excellent tribunal judges. However, they are not infallible, and the effect of the LASPO Act 2012, whether directly, in immigration, or indirectly, in asylum, will be that more appellants are unrepresented.

Among the concerns expressed in 2009 was the impact of the second-tier appeals test in potentially excluding appeals to the Court of Appeal where the

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individuals faced removal in breach of the refugee convention and their human rights as a result of errors of law by the tribunal. Ministers gave assurances in both Houses that these sorts of cases would be the ones that could be expected to meet the test. Phil Woolas said,

"the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal".-[Official Report, Commons, 14/7/09; col. 210.]

There were other soothing comments, of which I will only cite one, made by the current Immigration Minister, Damian Green, who said:

"The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office".-[Official Report, Commons, 14/07/09; col. 212.]

Those assurances have proved to be ephemeral following the judgment of the Court of Appeal in the case of PR (Sri Lanka). The Court of Appeal considered the ministerial assurances given in 2009, concluding that,

"it would be wrong in principle",

to be constrained by those assurances and, in applying the second-tier appeals test, refused permission to appeal in each of the three asylum cases before the court. In one of those cases the appellant had been detained and tortured in Sri Lanka. Applying the test, the Court of Appeal concluded:

"The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as to require the attention of the Court of Appeal".

In another of the three cases, the judge identified an error of law in the failure of the tribunals below to correctly apply country guidance in respect of Zimbabwe asylum claims, but concluded that the test none the less precluded any appeal to the court. In the last of the three cases, Lord Justice Pitchford found the reasoning of the tribunals below to be, "obscure and contradictory" and such as to give rise to a real prospect of success on the appeal if permission had been granted.

In the case of JD (Congo), however, the Court of Appeal granted JD permission to appeal on the basis that there was an error of law in the Upper Tribunal's conclusion that the First-tier Tribunal had erred in law, but the UT's criticisms of the FTT's decision amount to no more than a disagreement as to the proportionality of removal. The consequences of removal for JD and his partner were acknowledged to be very severe.

Taken together, these two judgments show that asylum and other human rights cases are neither exempt from the test, nor grounds in themselves to meet the test. That an error could lead to a person being returned to a country where he or she may be tortured will not necessarily mean that the test is met, as in the case of PR (Sri Lanka).

There are other significant conclusions to be drawn from these cases, as the Immigration Law Practitioners' Association emphasised in its briefing for your Lordships on these amendments. I hope that my noble kinsman

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has had an opportunity of considering them carefully in making up his mind as to how to respond this afternoon.

In conclusion, leaving aside all the complexities of the second-tier appeals test, which have preoccupied the Court of Appeal, it has been shown that without Amendment 149B, or at least Amendment 149C, we shall be in breach of our obligations under both the refugee convention and the ECHR and that we have been warned by no less an authority than the UNHCR itself. I beg to move.

Baroness Smith of Basildon: My Lords, we are again grateful to the noble Lord, Lord Avebury, for the detail with which he explained his amendment. I think that these are amendments drafted by the Immigration Law Practitioners' Association. As I understand the noble Lord, they are alternative amendments. The first removes the requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal: that is known as the second-tier appeals test. The second, if I understand it correctly, is a lesser amendment and would apply to all immigration and nationality appeals concerning asylum and human rights. The noble Lord indicates that I do understand correctly.

The noble Lord referred to the impact the second-tier appeals test has had and I would like to hear the response of the noble Baroness, Lady Northover. There were some serious points raised by the noble Lord, Lord Avebury. If the Government are opposing the amendment, we need to understand their case for doing so, including their views on the impact this would have if implemented and the reasons and evidence used to justify holding those views. It would be helpful to hear from the noble Baroness. The noble Lord, Lord Avebury, has made a detailed and interesting case and there must be some justification if the Government are not going to accept the amendments.

6 pm

Baroness Northover: My Lords, Amendment 149B, tabled by my noble friend Lord Avebury, seeks to remove immigration and nationality appeals from the provisions in Section 13(6) of the Tribunals, Courts and Enforcement Act 2007. Similarly, Amendment 149C seeks to remove a narrower class of appeals-those which relate to the refugee convention or the European Convention on Human Rights-from the provisions in that section. Section 13(6) of the 2007 Act enables the Lord Chancellor to set out, by order, the test which applications have to meet for permission to appeal to the Court of Appeal from the Upper Tribunal. That order-making power has been exercised so that where a party seeks permission to appeal on a point of law against a decision of the Upper Tribunal, the second-tier appeals test will be applied, as noble Lords have said. That test requires that in order to grant permission, the Upper Tribunal or Court of Appeal has to consider that the proposed appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear the appeal.

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The Government, like the courts themselves, fully appreciate the gravity of the subject of these appeals. Amendment 149C is concerned with appeals of the most serious kind, where the claim may be that if the appellant is returned home they may face torture or even death. Such cases undoubtedly deserve what has been called anxious scrutiny. In the Government's view, that is what the system currently provides. At present, if a person makes a claim to asylum in the United Kingdom, for example, and that claim is rejected, he or she can appeal to the First-tier Tribunal. If that tribunal dismisses the appeal, there is a right of appeal to the Upper Tribunal. Alternatively, if the appeal is allowed, the UK Border Agency may appeal to the Upper Tribunal.

Both the First-tier Tribunal and the Upper Tribunal are composed of judges who are experts in this most sensitive of subjects. Therefore, if the Upper Tribunal rejects the appeal, it seems right to the Government that the test to take the matter to a third judicial body should be high. The courts have been clear that there is no case for saying that the UK would be in breach of its international obligations if appeals from the Upper Tribunal are available only in these circumstances. At present, all appeals from the various jurisdictions of the Upper Tribunal to the Court of Appeal are considered under the second-tier appeals test. That same test, under the Access to Justice Act 1999, also applies where there is an appeal against a decision of the High Court and where the latter was acting in its appellate capacity.

The Government believe that the same level of consideration should be given to all types of appeals, even to the sorts of cases with which Amendment 149C is concerned. One reason for this is that not all claims which are made are substantiated when they are put to the test. The second-tier appeals test gives judges appropriate control over the cases that reach the Court of Appeal. Removing this test could cause the Court of Appeal to be inundated with cases that may not justify their consideration. This would cause delays in the provision of justice for the whole range of decisions that are brought to the Court of Appeal and put further pressure on the judicial resources available to that court.

The courts have made a number of important judgments recently that help to clarify the application of the test for cases seeking permission to appeal to the Court of Appeal in the immigration and asylum context. For instance, if a person maintains in their application for permission to appeal that they will be persecuted if they are returned home, that will be a matter which the Upper Tribunal can consider in determining whether the "some other compelling reason" limb of Section 13(6), is met in reference to the second-tier appeals test. If it refuses permission, it is open to the appellant to apply direct to the Court of Appeal for permission.

There is no doubt that the class of cases dealt with by Amendment 149C can be both complex and of the utmost importance. It is our belief that the current structure, including applying the second-tier appeals test in appeals from the Upper Tribunal to the Court of Appeal, is the right one. That was of course the

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position of those who are now the Opposition when they were in government, as they argued the case then. As we consider that the case is not made out to change the test for the most serious kinds of cases-and as we also heard the other day from the noble and learned Lord, Lord Woolf, in defence of the Upper Tribunal's track record in what has happened since this was debated a few years back-it follows that we do not accept that that test should be removed for the wider category of cases covered by Amendment 149B. I therefore urge my noble friend to withdraw this amendment.

Lord Avebury: I cannot say that I am not disappointed by that reply, because, as I said initially, there have been cases where people at very serious risk of torture have not been allowed to appeal to the Court of Appeal. For example, in the case that I mentioned of PR (Sri Lanka), the individual had been tortured in Sri Lanka and that was acknowledged by the courts but not deemed to be sufficient reason for the second-tier appeal test to have been satisfied. There have been conflicting decisions by the courts on the second-tier appeal. The only safe thing would be to ensure that where considerations of human rights are involved, as they were in the case of PR, the right of appeal to the Upper Court should be retained and the second-tier appeal test should be modified in the manner that I suggested. However, since my noble friend has suggested that we defer this matter until Report-

Baroness Northover: Perhaps I might point out to my noble friend that it is not the case that the second-tier appeals test does not allow for materially wrong decisions to be challenged by the Court of Appeal and that in the JD (Congo) case, three of the four appellants seeking permission were granted it. The immigration and asylum chambers of the First-tier Tribunal and the Upper Tribunal have been set up specifically to deal with these kinds of matters. My noble friend mentioned the complexity and sensitivity of these kinds of cases, and I should have answered by addressing that point.

Lord Avebury: I mentioned the case of JD (Congo) in my first speech-I have it in front of me-and I accept that in that case, the second-tier appeals test was found to have been met. However, there are other cases in which the circumstances were equally compelling and where that test has not been met. It was in the hope that we would clear up that ambiguity in how the second-tier appeals test is interpreted that I tabled my amendment. As I was about to say, we will have to reflect on this and perhaps come back to it on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 149B withdrawn.

Amendment 149C not moved.

Clause 26 : Powers of immigration officers

Amendment 149CA

Moved by Baroness Smith of Basildon

149CA: Clause 26, page 23, line 29, at end insert "who is working in Criminal and Financial Investigation"

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Baroness Smith of Basildon: My Lords, in the clause that my amendment seeks to address the Government are proposing to extend vastly the powers of the UK Border Agency's customs and immigration officers. I do not necessarily oppose this in principle. We have to understand the very challenging nature of the work undertaken by border control. The nature of international and global threats is constantly changing and we have to pay tribute to the immigration officers. They have a difficult job, they work in a challenging environment, and they have suffered cuts to their numbers in the last couple of years. However, we need to look at two things.

First, such an extension of powers would need to be properly justified and explained to your Lordships' House. Secondly, we need to ensure that those exercising those powers have the necessary skills, rank, and remit, in order to ensure public confidence in the UK Border Agency as well as confidence within it. Also, is it up to it? I do not in any way mean the individual border officers, but rather whether they have the resources, training and capacity to undertake those roles.

Clause 26 extends a number of powers to immigration officers, both under the Regulation of Investigatory Powers Act and the Proceeds of Crime Act. Those powers are significant: the power to authorise the use of covert surveillance-"intrusive surveillance", according to the Bill-and property interference such as wiretapping and installation of listening devices, as well as powers to authorise confiscation and detained cash and money-laundering investigations. These are serious new powers to give to immigration officers. They are currently only authorised by senior officers, and they are exercised by experienced and specialised professionals. Our amendments seek to ensure that if those powers are to be extended to immigration officers, they will be exercised with the same level of expertise and seniority.

When I first looked at the Bill it seemed to contain very wide-ranging powers, and there is a case for the Government to justify those. However, I looked at the Explanatory Notes, and the amendments seek to put on the face of the Bill what is in them. The Explanatory Notes are very helpful in this regard, because they make clear-I refer to page 64 and paragraph 380 in particular-that the intrusive surveillance available under RIPA should only be extended to officers working within the criminal and financial investigation teams. The paragraph says:

"The purpose of this amendment"-

which we are talking about, and which is in the clause-

"is to provide for immigration officers working in Criminal and Financial Investigation ("CFI") teams in the UK Border Agency ... to be able to apply to exercise property interference powers equivalent to those already used by customs officials".

It cites the Act and legislation under which they can use them, and states that:

"CFI teams have responsibility for investigating smuggling of drugs, firearms and weapons and organised immigration and customs crimes".

If, as I understand from the Explanatory Notes, the Government intend these powers to be used only in the specific context of criminal and financial investigation by immigration officers, then it would be helpful to state that in the Bill and be very clear about it, rather than allowing the scope-as seems to be the case at the

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moment in this clause-for any immigration officer to exercise those powers. I am concerned about whether training and support could be available to all immigration officers, and whether it would be for all staff or only for those above a certain rank. That gives me some cause for concern, because if all immigration officers had that power, there is then the understanding that any immigration officer could exercise that power, even without the training or the appropriate rank or experience. What is in the Explanatory Notes is therefore better than what is in the Bill, though that may be an oversight in drafting.

Amendments 149CB and 153B, which follow Amendment 149CA, are intended to probe the Government's justification for these highly specialised powers. These probing amendments remove Clause 26(4) and (5) and paragraphs 14 to 39 of Schedule 14, which extend to the UK Border Agency's chief operating officer the ability to authorise immigration officers' powers of investigation into confiscation, detained cash and money-laundering under the Proceeds of Crime Act. At present, the only individuals who can exercise those powers are accredited financial investigators, police constables or Customs officials, and in the case of confiscation investigations only SOCA officers-although SOCA has now been absorbed into the National Crime Agency. Notwithstanding police constables, all these individuals work within the specific field of serious financial and economic crime. I assume that once the National Crime Agency is up and running and fully established, it will have responsibility for those crimes.

The Government need to explain and justify for what purposes immigration officers also need such powers. What will be the relationship between the immigration officers who have this power and the National Crime Agency? Earlier clauses in the Bill refer to the relationship between the National Crime Agency and local police forces, and the powers of notification. If immigration officers are given new powers, there should be the same kind of co-operation and information-sharing between immigration officers, who have such powers, and the National Crime Agency, otherwise there will be a gap to fall through; both groups could end up investigating similar crimes or there could be an overlap of crimes. It would be helpful if the Government could clearly explain for what purposes immigration officers need these powers, and why, with the existing powers they have, there could not be co-operation with the National Crime Agency.

Paragraph 381 in the Explanatory Notes says that:

"At present, the UKBA is able to authorise applications from immigration officers investigating serious organised immigration for directed surveillance and Covert Human Intelligence Sources ... and the 'senior authorising officer' can authorise applications for intrusive surveillance".

However, this amendment takes it one stage further, so there needs to be a little more justification and understanding. I can understand the issue around the crimes, but I am not clear why any immigration officer could have those powers-which appears to be the case in the Bill, though perhaps not in the Explanatory Notes. Why is it not sufficient to extend the powers of current specialised officers, or to work with them and

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the National Crime Agency? I would also be interested in some information on the training that would be given to the specialised officers. Would there originally have been any expectation that they should have any specialised skills, or would it have been something that any immigration officer could take on if they had had the appropriate training?

Finally, does the UK Border Agency have the capacity to take on this role? The following amendment, in the name of the noble Lord, Lord Berkeley, which we will discuss shortly, covers a number of issues including queues at Heathrow, where we have seen enormous pressures put on the staff. Given the current wording of the Bill, and in particular that it would seem to apply to any immigration officer, I worry about giving very wide-ranging additional powers and responsibilities to a border agency that, as we heard earlier, is struggling to maintain its current responsibilities. It has had to draft in officers from the Ministry of Defence and civil servants from other parts of the Government. I want an assurance that anybody drafted in on a temporary basis-to help out with extended queues at Heathrow, for example-would not be given the powers of entry and surveillance as outlined in the Bill.

It would be helpful if the Minister could give some answers to those questions. The new powers given to the UK Border Agency are very extensive, and it would be interesting to know the Minister's justification of them, and how he imagines that they will operate.

Lord Henley: My Lords, I am grateful to the noble Baroness for setting out what she is trying to do in these amendments, which I take it are merely probing amendments, as I believe she said. I am also grateful that she paid tribute to the very difficult job that immigration officers do. However, she probably used rather unfortunate language when she asked whether they were quite up to it, although she qualified what she meant by that. She then said that she thought that the Explanatory Notes were possibly better than the Bill itself. Sadly, we do not have legislation by Explanatory Note. However, I am always more than happy to look again at the wording of individual clauses, should it be necessary. Again, as always, we have any amount of time to deal with these matters between now and Report and the further stages as this Bill proceeds through Parliament.

Put very simply, the noble Baroness is asking what Clause 26 is about and why we think it is necessary. The proposed extension of powers is saying that it is necessary for the United Kingdom Border Agency to have extra powers to respond robustly to serious and organised crime. Customs officials within the UK Border Agency are already entitled to apply for intrusive surveillance under RIPA and for property interference under the Police Act for the purpose of investigating customs offences. This clause will rightly extend these powers to immigration officers for the purpose of investigating serious and organised crime.

I turn to the amendments and, in doing so, I hope that I will answer some of the points. I suspect that the noble Baroness has not quite got the wording of the amendments right because Amendment 149CA achieves the opposite effect to the one she wants. It would require the authorising officer, who is responsible for

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authorising applications to interfere with property under Section 93 of the Police Act 1997, to be a senior official who is working within a criminal and financial investigation team of the UK Border Agency. Although I suspect it may not have been the intention of the noble Baroness, the effect of this amendment would be to restrict and potentially lower the grade of the authorising officer.

Clause 26(1) already limits the role of the authorising officer to a senior official within the meaning of RIPA who has been designated for that purpose by the Secretary of State-that is, the Home Secretary. Within the police, the relevant rank for an authorising officer would be a chief constable. Under the UK Border Agency's structure, this would be the current director of operations and deputy chief executive. No one working in the criminal and financial investigation teams would be senior enough to equate to that grade. I am sure that the Committee and the noble Baroness share our view that an authorisation to interfere with property should not be approved by anyone less senior than that level. I should also note that the director of operations and deputy chief executive of the UK Border Agency already effectively authorises applications under Section 93 of the Police Act 1997 with regard to customs investigations.

I appreciate that this is a probing amendment but, in short, it would weaken rather than tighten the controls on the exercise of these intrusive powers under Part 3 of the Police Act 1997. All that said, the noble Baroness made it clear that she is seeking to give effect to our commitment that we will limit the exercise of these intrusive powers-that is why she wanted to know why we are seeking extra powers-to specially trained immigration officers in the UK Border Agency's criminal and financial investigation teams. We do not, however, consider it appropriate to include such an express provision in the Bill given the existing safeguards in the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. We do not have such specificity for customs officials, and the aim is to provide parity for immigration officers.

As the noble Baroness will be aware, Section 28 of RIPA provides that for a senior authorising officer to grant an authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is proportionate and necessary for preventing or detecting serious crime or in the interests of national security or in the interests of the economic well-being of the United Kingdom. The Police Act 1997 also imposes similarly strict controls over the authorisation of property interference.

I appreciate that Amendments 149CB and 153B are probing amendments. They would remove the powers sought for immigration officers in relation to the Proceeds of Crime Act 2002. These powers have been sought for good reason in an attempt to improve the effectiveness of the UK Border Agency's investigatory capability. Providing access to the relevant Proceeds of Crime Act powers will ensure that the UK Border Agency's immigration officers are able to play their part in dealing with the proceeds of organised immigration crime.

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Moreover, these provisions will place immigration officers on the same footing as their police and customs counterparts and reduce their reliance on outside bodies such as the police. At present, only the UK Border Agency's customs officials are able to use the full range of Proceeds of Crime Act powers and even then only in relation to customs offences. Immigration officers presently have to rely on the very few accredited financial investigators within the UK Border Agency or on seconded police officers to conduct those investigations. This is clearly a weakness in the UK Border Agency's ability to fight organised immigration crime. The Bill ultimately ensures that the UK Border Agency can take action to deal with the proceeds of all the criminal offences in its remit, whether commodity smuggling or serious immigration and nationality crime.

The noble Baroness sought an assurance that, where civil servants and others are drafted in to help, we will be able to maintain the border appropriately and that they will have the extant powers. I can give an assurance that any civil servants brought in to help check passports will not be given the powers being sought. They would obviously not have the training that the noble Baroness and we think is appropriate to do so. In any case, those who are brought in to assist with the management of queues are being brought in specifically for that purpose and not to investigate criminal activity.

I do not know what the usual channels and others are thinking about the timing of these matters or whether the noble Baroness will have to keep going for another three minutes, but I hope that, with those assurances, she will feel able to withdraw her amendment. It may be necessary for me to write to her with further detail. I have explained why I think Amendment 149CA is defective. I leave it to the noble Baroness to consider what to do with her amendments.

Baroness Smith of Basildon: I am grateful to the noble Lord. I am puzzled about my amendment being defective. I know the noble Lord has enjoyed explaining that to me on a number of amendments. I always say they are about the intention behind the amendment and that we will come back on Report with one that satisfies him.

I understand that the Explanatory Notes are not part of legislation, as the Minister pointed out to me the other week-I am rather long in the tooth in regard to some of these things-and I am sure that they are not intended to be misleading. They state:

"The purpose of this amendment is to provide for immigration officers working in Criminal and Financial Investigation ... teams in the UK Border Agency ... to be able to apply to exercise"-

and then they go on to say what those powers are.

I will have to read very carefully what the Minister said in Hansard to make sure I fully understand what he is saying about it not being exclusively those officers-even though the Explanatory Notes say it would be-but that it would be other officers of a certain grade and level.

I said at the very beginning that we are not opposed to the extension of powers in principle, but we just need to understand the Government's justification and to have some explanations and clarifications. I will

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read the Minister's comments in Hansard to clarify the position for myself, but I wonder whether he is talking about slightly different things. At some point, he may have been talking about the authorisation of the action, while I am talking about the officers undertaking the surveillance as well. I hope we have not misunderstood each other. I want an assurance that the officers undertaking very intrusive forms of surveillance-perhaps phone tapping, as it says in here-will not just be authorised by a senior officer, but will have the appropriate skills, experience and training and that safeguards for the public are built in. This is a probing amendment but it may not remain one. We want to look at this a bit further and in more detail, but I am grateful to the Minister for taking time to explain some of the measures. I will look at what he has said in Hansard and I may come back to him on the point about who will have the powers and what training will be provided and I shall also look for an assurance that it will not undermine the skills of existing police officers.

One area on which the Minister did not respond was the relationship between such officers and the National Crime Agency. Given the debates that we have had earlier during the passage of the Bill, it would be helpful to explore the relationship that border officers, who deal with organised and serious crime issues as regards immigration and border control, have with the National Crime Agency, which is a national police force for organised and serious crime. We need to explore that further. I would be happy for the Minister to write to me on that point. I am happy to withdraw my amendment.

Amendment 149CA withdrawn.

Amendment 149CB not moved.

House resumed.

NHS: Annual Report and Care Objectives

Statement

6.31 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, with the leave of the House, I shall now repeat a Statement made earlier today by my right honourable friend the Secretary of State for Health in another place on the subject of the Secretary of State's report to Parliament on the health service, the Secretary of State's mandate to the NHS Commissioning Board and the NHS Constitution. The Statement is as follows:

"With permission, Mr Speaker, I would like to make a Statement about my first annual report to Parliament on the health service, published today, alongside the report on the NHS Constitution and the draft mandate to the NHS Commissioning Board.

This year, the NHS has made major progress in the transition to a new system, one based on clinical leadership, patient empowerment and a resolute focus on improving outcomes for patients. In a year of change, as the annual report shows, NHS staff have performed admirably. Waiting times remain low and stable, below the level at the election, with the number of people waiting over a year at its lowest ever level.

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Today, only 4,317 patients are waiting more than a year for treatment, dramatically lower than in May 2010. Nationally, all waiting-time standards for diagnostic tests and cancer treatment have been met.

The £600 million Cancer Drugs Fund has helped over 12,500 patients to access the drugs previously denied them. We have extended screening programmes, potentially saving an extra 1,100 lives from breast and bowel cancer every year by 2015. More than 90 per cent of adult patients admitted to hospital-around 260,000 every week-are now assessed for venous thromboembolism, a world-leading programme. In 2011 and 2012, 528,000 people began treatment under the expanded Improving Access to Psychological Therapies programme, up from just 182,000 in 2009-10, with almost half saying they have recovered. Following the success of the telehealth and telecare whole system demonstrator programme, including a 45% fall in mortality, we are on course to transform the lives of 3 million people with long-term conditions over the next five years.

The NHS is also improving people's experience of care. Patients are reporting better outcomes for hip and knee replacements and for hernias. In the latest GP patient survey, 88% of patients rated their GP practice as good or very good. The outpatient survey shows clear improvements in the cleanliness of wards and patients reporting that they were treated with respect and dignity. MORI's independent public perceptions of the NHS survey shows that satisfaction with the NHS remains high at 70%. Mixed-sex accommodation breaches are down 96%. MRSA infections are down 25% in a year, while C. difficile infections are down 17%.

Real progress, too, is being made in public health. More than 570,000 families have signed up to Change4Life. And our support for the school games and Change4Life sports clubs in schools is helping to secure the Olympic legacy. The Responsibility Deal has seen the elimination of artificial trans-fats, falling levels of salt in our diets and better alcohol labelling. By the end of the year, over 70% of high street fast food and takeaway chains will show calories on the menu. To drive forward research into key areas like dementia, I have announced a record £800 million for 11 National Institute for Health Research Centres and 20 Biomedical Research Units.

All of this and a million more people with an NHS dentist, every ambulance trust meeting their call response times, 96% of patients waiting for fewer than four hours in A&E, QIPP savings across the NHS of £5.8 billion in the first year of the efficiency challenge and NHS commissioning bodies delivering a £1.6 billion surplus, carried forward into this financial year. Yes, all of this and a new system taking shape. The NHS Commissioning Board has been established, health and well-being boards are preparing to shape and integrate local services and 212 clinical commissioning groups, managing more than £30 billion in delegated budgets, are preparing to lead local services from April next year. We are also starting to measure outcomes comprehensively for the first time. Far from buckling under pressure, with the right leadership and the right framework, NHS staff are performing brilliantly.

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In addition to the NHS annual report, I am today publishing a report on the NHS Constitution. The Health and Social Care Act 2012 strengthens the legal foundation for the constitution, including a duty on commissioners and providers to promote and use it. This report, the first by a Secretary of State, will help commissioners and providers to assess how well the constitution has reinforced the principles and values of the NHS, the degree to which it has supported high-quality patient care and whether patients, the public and staff are aware of their rights.

I am grateful to the NHS Future Forum and to its chair, Professor Steve Field, for their advice on the effect of the NHS Constitution. I have asked them whether there is further scope to strengthen the principles of the constitution before a full public consultation in the autumn. Any amendments would be reflected in a revised constitution, published by April 2013.

Rooted in the values of the constitution, we will drive further improvement across the NHS through a set of objectives called the mandate to the NHS Commissioning Board. The draft mandate is also published today. The mandate will redefine the relationship between Government and the NHS, with Ministers stepping back from day-to-day interference in the service. Through the mandate we will set the Commissioning Board's annual financial allocation and clearly set out what the Government expect it to achieve with that allocation, based on the measures set out in the NHS outcomes framework.

These include measures of quality, such as whether people recover quickly from treatment, and also people's experiences, including whether they are treated as well as they expect, and whether they would be happy for family and friends to be cared for in a similar way. It will promote front-line autonomy, giving clinical commissioners the freedom and flexibility to respond to local needs-freedoms balanced by accountability.

Each year, the Commissioning Board will state how it intends to deliver the objectives and requirements of the mandate, reporting on its performance at the end of that year. The Secretary of State will then present to Parliament an assessment of the board's performance. If there are particular concerns, Ministers will, for example, ask the board to report publicly on what action it had taken or ask the chair to write a letter setting out a plan for improvement. Today's publication of the draft mandate marks the beginning of a 12-week consultation. I look forward to working with patients, clinicians, staff and other stakeholders to finalise the mandate in the autumn.

These documents show how a new exciting chapter is opening up for the NHS. Starting with strong performance and robust finances, we are driving towards integrated services and community-based care. It will be a new era based on openness and transparency, and focused on what matters most to patients-health outcomes, care quality, safety and experience. It will be an era in which every part of the NHS-the Secretary of State, the Commissioning Board, clinical commissioning groups and healthcare providers-is publicly held to account for what is achieved. For the first time, Parliament, patients and the public will know exactly how the NHS is performing locally,

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nationally and internationally. It will be a new era in which patients feel in control, clinicians lead services and outcomes are among the best in the world. I commend this Statement to the House".

My Lords, that concludes the Statement.

6.41 pm

Lord Hunt of Kings Heath: My Lords, in thanking the noble Earl for repeating the Statement made in the other place, I first refer noble Lords to my health interests in the register, which include being chairman of an NHS foundation trust and being a consultant and trainer in the NHS.

The Secretary of State has today presented his first annual report, which I can describe only as a report on a lost year in the National Health Service. Just when the NHS needed stability to focus all its energy on the financial and service challenges that it faces, which are momentous, the Secretary of State pulled the rug from underneath it with a reorganisation that no one wanted and the Prime Minister had promised would never happen. In fact, we have had not one but two lost years in National Health Service as the Secretary of State has obsessed over structures and inflicted on it an ideological experiment that made sense to him but, sadly, to very few other people.

His decision to dismantle existing structures before new ones were put in place has led to a potential loss of financial grip at local level in the NHS. Two-thirds of NHS acute trusts are reported to have fallen behind on their efficiency targets. I can speak personally here of the issues that that causes. We see temporary ward and A&E closures, panicked plans to close services sprouting up wherever you look, and crude rationing restrictions across the NHS, with 125 separate treatments, including those for cataracts and hip replacements, being restricted or stopped altogether by one primary care trust or another. This is an NHS that is drifting dangerously towards trouble or, in the words of the NHS chief executive, a former senior official in the noble Earl's department and a distinguished health service manager to boot,

"a supertanker heading for an iceberg".

Listening to the Secretary of State's Statement, you could conclude that he is not looking at the same NHS as the head of the NHS Confederation. I wonder which world Mr Lansley lives in; perhaps it is la-la land, as it is sometimes called by well known commentators on the NHS. Perhaps that explains why the year has been hailed as a great success by the Secretary of State when it saw the biggest ever fall in public satisfaction with the NHS, as recorded by the British Social Attitudes Survey. I note that the Statement was rather selective in quoting from surveys of opinion, but this is the question that has been asked consistently since 1983.

Life on the ground is very tough in the health service, even for foundation trusts such as mine, which have consistently broken even. Acute trusts are in the dock. We are told that we take in too many patients. At times, Ministers say that we take too long to discharge those patients. At others, if media stories go in the other direction, we are told that we discharge

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patients too quickly. Rather than these knee-jerk reactions, we need an integrated approach. The problem is that the Government's changes are working in the opposite direction. On the one hand, acute trusts face major squeezes on finances and therefore have to reduce capacity because the only way to make the big efficiencies needed is to close wards and reduce staffing levels. On the other, acute trusts are the most accessible part of the system, 24 hours a day, seven days a week, 365 days of the year. They have a much better offering than most GP deputising services.

Therefore, I ask the noble Earl whether primary care is stepping up to the plate and increasing its own accessibility. I will be very interested in his comments. I certainly find it bizarre that walk-in centres are being closed up and down the country. Can we look forward to primary care surgeries extending their hours to make up for that? Will primary care contribute to demand-management plans? I refer the noble Earl to Mr Lansley's original speeches, in which he said that the reason for these changes was to put GPs in charge of the budget because, without that, doctors behave irresponsibly. Clearly, the intention was that GPs should ration services and manage the demands made on the rest of the system.

I do not see much sign of effective demand-management, although we certainly see rationing. Primary care trusts are dying but clinical commissioning groups are not focused on the big issues because, at the moment, they must seek authorisation, get themselves up and get the infrastructure ready. Therefore, at local level there is a great hiatus in ensuring that there is a system-wide response to these great challenges.

Paragraph 5.16 of the mandate comments that the NHS Commissioning Board,

"will be responsible for around £20 billion of direct commissioning, including primary care".

Will the noble Earl tell me how the board will ensure that primary care is commissioned effectively? In paragraph 3.6, there is a very appropriate reference to the need for patient choice and primary care is mentioned. How will the public be given choice in primary care? The issue has bedevilled the health service for many years. We should like to hear how the Commissioning Board will ensure that there is genuine choice so that people can choose which GP's surgery to belong to.

In paragraph 5.6 of the mandate, we come to this wonderful phrase:

"The Government's aim is to move away from the top-down management of the NHS to a system where fully authorised CCGs will have, as the Future Forum put it, 'assumed liberty'".

The idea that the Government are currently engaged in letting go is a fantasy. The system is being tightly controlled from the centre. Clinical commissioning groups are being told what to do and there is very little sign of any autonomy whatever. I have to tell the noble Earl that nobody in the health service believes a word of what is contained in paragraph 5.6.

I come now to the intention, expressed in the mandate, that judgments will be placed on each part of the provider side of the NHS, in particular by asking patients whether they would recommend a hospital to a family member or friend,

"as a high quality place to receive treatment".

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I very much applaud the intention behind this; it is called the net recommender index. It has been taken from the private sector-the retail trade, I think. However, there is of course a difference. In the private sector, one can take it that most people want to shop, whereas most people do not want to be in hospital. On a scale of nought to 10, anything up to seven is regarded as not being a recommended value. The Picker Institute and CQC have both said that they have real concerns about the methodology. Before the Government simply go in for a simplistic league table, I urge the noble Earl to talk to the health service, let it have an input and come up with a system that actually will be seen as credible and owned. If the department insists on a very crude approach on this issue, I very much fear that it will give very false impressions of the quality of care in individual hospitals.

I welcome in paragraph 4.9 the commitment to promoting innovation and research. The noble Earl himself has a major part to play in this, and it is very welcome.

Alongside the mandate, the Statement is silent on the severe funding problems of local authorities that impact on their ability to provide support either to help to prevent patients having to go into hospital in the first place or to allow for their successful discharge as early as possible. Indeed, the Secretary of State was silent on the unfolding crises in adult social care. We have been promised a White Paper on service change, but the Government are silent on funding. It is widely believed that they have given up on the Dilnot proposals. Can the noble Earl reassure me on that matter?

I also want to ask the noble Earl about ministerial statements that there will be no rationing by cost in the health service. He will know that the recent survey undertaken by the Labour Party showed that rationing is happening on Ministers' watch right across the system with a whole host of restrictions, not just on unnecessary treatments but important ones-a postcode lottery running riot. Have Ministers issued instructions to the health service to stop this?

I turn to bureaucracy and targets. The Government said when they first came in that they would scrap the four-hour A&E and 18-week targets; they have brought them back. Now they have gone further and adopted Labour's guarantees. Today they have added on top of that a whole new, complex web of outcomes and performance indicators. The NHS needs simplicity and clarity; what it has got is a dense document with a complex web of 60 outcome indicators grouped within five domains. The House is entitled to an explanation of the difference between an outcome indicator and a target; but there is no difference. In fact, at the time of the greatest financial squeeze the health service has ever had to face, the Government are loading new targets on to the NHS, which is struggling to cope with the challenges that it is facing.

The House also needs to ask: to whom is this mandate to be given? What is happening here is the outsourcing of democratic responsibility and accountability to Parliament for the organisation that constituents value most to an unelected and unaccountable board. What assurances can the Secretary of State give to noble Lords that the Commissioning Board will listen to the concerns of parliamentarians?

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I want to ask finally about the mandate that the Secretary of State has given to his new board. There is widespread concern in the health service that the mandate given to the Commissioning Board is one for privatisation. It was repeatedly claimed in both Houses during the passage of the dreadful Health and Social Care Bill that has been passed into law that there would be no privatisation, yet it is happening at speed as the NHS is being broken up and clinical commissioning groups are being forced to tender community services and create back-office commissioning clusters. In the mandate there is not one mention, except in the distribution list, of an NHS trust or an NHS foundation trust. It is quite clear what is happening. The department is using the language of providers because it wants, in the end, to float the provider side off from the National Health Service. There is widespread distrust of this Government in the health service and outside, and I am afraid that this Statement does nothing to assuage that view.

6.54 pm

Earl Howe: My Lords, I would like to rise, as I usually do, to thank the noble Lord for his response, but I cannot do that on this occasion. The noble Lord must know that most of what he said was absolute rubbish.It sounded suspiciously to me like the words of his right honourable friend Mr Burnham in another place. In fact, I listened to Mr Burnham earlier and I thought that I recognised verbatim some of his turns of phrase in the speech that the noble Lord has just made.

I counsel noble Lords not to accept most of what the noble Lord, Lord Hunt, has just said about the performance of the NHS. He began by saying that the NHS has had two lost years, that we are engaged in an ideological experiment, and that there has been a loss of financial grip and wholesale closure of services. None of that is true. I am disappointed in the noble Lord because he is usually much more constructive and usually much readier to acknowledge the wonderful efforts of those who work in the health service and the achievements that they have brought to us throughout the year. I did not hear him mention those efforts and how grateful we all should be to those who work in the NHS for what they do for us.

I do not see in any of the figures that I read out the picture that the noble Lord presented to us. The NHS has delivered QIPP savings-that is part of the £20 billion Nicholson challenge that noble Lords will know about-of £5.8 billion. It is on track-this year the expected QIPP savings are £4.9 billion. The NHS delivered a surplus last year of £2.1 billion-£1.6 billion in the commissioning sector and £600 million in the provider sector. The commissioners' surplus of £1.6 billion will be returned to them in full this year. To me, that is not a sign of financial strain. Yes, there are trusts that are reporting a gross operating deficit. How many are there? There are eight, in the entire country of England. Those, of course, are a matter of concern but we are working with those trusts to help them to resolve their difficulties-difficulties that very often originate from PFI deals set up under the previous Administration that were unsustainable. I am not decrying PFI as a tool or a lever, but the fact is that some of the business cases were very poorly founded.

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The noble Lord asked whether we had instructed services to be rationed. I noted the other day the document published by the Labour Party on its NHS Check. What we have said is that PCTs should not make commissioning decisions on the basis of cost alone in deciding whether to commission a particular procedure. PCTs should consider the benefits of the procedure as well as the cost, but they could reasonably take a view that the evidence on a procedure suggests that it will not normally offer sufficient clinical benefit to justify its cost. That is nothing particularly new but it is very important. In other words, the resources involved may be better used in providing other treatments that have a greater impact in preventing or addressing ill health. No healthcare system in the world can afford to provide every possible treatment, irrespective of the evidence of whether it will do any good. The noble Lord is trying to paint a picture of the NHS denying treatment to people, while what it is doing is sensibly looking at what is value for money.

The noble Lord referred to patient satisfaction. When the public are asked to rate their satisfaction with services, their response may well be influenced by a wide range of factors. Our own polling of the general public, undertaken independently by MORI and published last month, shows that satisfaction with NHS is broadly stable at around 70%. Those are, by and large, people who have used the NHS recently. Of course we acknowledge that there is some disquiet among the public about the reforms to the NHS, which have indeed been misrepresented quite widely. However, acute trusts are not buckling under the strain; they are doing extremely well. Is primary care stepping up to the plate? Are CCGs focused on the big issues? In my experience, the clinical commissioning groups that are forming around the country are having exactly the right conversations. They are conversing with secondary care clinicians, public health specialists and those in social care, and looking at how care can be joined up across the system. It is an exciting opportunity for primary care.

The noble Lord asked about how patients could get choice in primary care. Well, the NHS constitution provides for the right to choice. The noble Lord will know that we have agreed two things with the BMA. One is that the boundaries of PCT practices can be varied, so that if somebody moves a few streets down the road they can still stay at their GP of choice rather than having to move. That is surely welcome. We have pilots around the country operating to look at whether commuters who come into the centre of London, for example, would like to have their GP near their place of work, not necessarily near their home. We will look to see what the lessons are from that; it is entirely right that patients should be given that choice.

The noble Lord referred to the Government not letting go and the tight grip from the centre. I do not know who he has been talking to. This afternoon I went to see the National Association of Primary Care and had a very good discussion; the climate of opinion there was that we had the balance just right between allowing it to influence clinical leaders locally, on the one hand and, on the other, the Department of Health providing sensible guidance and pointers to facilitate the process of clinical engagement.

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On social care funding, no, we have not given up on Dilnot-far from it. The principles of Dilnot are sound, and we are working with the Opposition, as the noble Lord knows, to see what the best and most affordable formula might be, and the principles around that formula. I have said in recent days and repeat today that along with the White Paper we shall publish a progress report on funding and the draft Bill, which will be subject to pre-legislative scrutiny.

The noble Lord said that there was no difference between targets and indicators. I beg to differ there. There is an enormous difference between a target that is centrally set by government and an indicator, which is a meaningful signal devised by clinicians themselves to help them to drive up the quality of their own care. That is the difference-and that is what we want to see in the commissioning outcomes framework, which will stem from the NHS outcomes framework embodied in the mandate.

In view of time, I hardly want to rehearse again the rejoinder to the noble Lord's final comment about privatisation. He should know that the Health and Social Care Act prohibits the takeover of any foundation trust by a private organisation. It simply cannot happen. There is no equity capital to be purchased, for one thing. Privatisation means different things to different people. Yes, if we are talking about choice for patients between an NHS provider and an independent sector provider or a charity, we should welcome that, because choice in that context drives up quality. If we are talking about selling NHS assets and hospitals to the private sector, that is off the agenda-and it will be permanently off the agenda, as far as I am concerned. The Health and Social Care Act ensures that there is no bias in favour of the private sector when commissioners are designing care in their locality, so that as far as possible there will be a level playing field between all types of provider. There is no hidden agenda in this area.

I hope that I have covered most of the points covered by the noble Lord and I hope that he will think again about some of the criticisms that he unfairly levelled against the NHS.

7.04 pm

Baroness Barker: My Lords, I thank the Minister for introducing a highly innovative document. This is the first time that the NHS has ever been treated in this way, with a document of this kind brought to Parliament and put out to consultation. I am delighted that in such a milestone document mental health has not been forgotten and is included alongside physical health.

I wish to ask the Minister three quick questions, because this document is important and the process of consultation about it is important for the future of the NHS. First, in the section on commissioning, will the Minister tell us whether he believes that the document fully reflects the decision taken in this House during the passage of the Health and Social Care Act that commissioners should not be under any obligation to put services out to tender when there is a justifiable case not to do so in the best interests of patient care? I want to make sure that he believes, as I do, that that point needs to be stressed during this period of consultation.

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Secondly, with reference to the Public Administration Committee report in 2011 about the need for government to have robust accountability and audit trails as services are increasingly delivered by other providers, will the noble Lord reassure the House what the processes will be, given all the work that was done by my noble friend Lady Williams of Crosby about the capacity of Parliament and the Secretary of State to have sufficient information to judge whether or not the aims and aspirations of the document have been met in practice? How will it be evaluated and what data will be made available to Parliament to make that judgment?

Finally, I welcome the part of the mandate about the NHS in its broader context, but does the Minister agree that the omission of any mention of housing is a serious one-in particular aids and adaptations, which are so important to prevention of ill health and for the reablement of people who have been in acute care?

Earl Howe: My Lords, I am grateful to my noble friend. On her first question about commissioning and the matter that we discussed during the passage of the Health and Social Care Act, she will remember that the cardinal principle of "any qualified provider" is that it is for commissioners to judge whether putting a service out to tender is in the best interests of patients. If there is no need to bring in competition, there is no obligation on a commissioner to do so. Why should they wish to? On the other hand, a service may be failing. The classic example that I always give is that of children's wheelchair services. In some parts of the country it is appalling. There is every reason in the world for a community service like that to be put out to tender. Nobody argues with that, if it delivers a better service at the same or roughly equivalent price. So I can reassure her on that point.

On accountability and audit trails, the way in which the board will hold the service to account will be based on the commissioning outcomes framework very largely, but of course there will be very tight financial controls through the accounting officer of every CCG. Broadly speaking, the service will be held to account through the results achieved for patients, the quality of care and the outcomes. There will be metrics attached to those-the indicators that I referred to, which fall below the NHS outcomes framework, as it were.

My noble friend will notice in the mandate that we have quite consciously not articulated umpteen sets of targets or indicators for particular disease areas, such as cancer or coronary heart disease. Once we started to do that, we would produce a volume 500 pages long; nobody wants that-the clear message that we had was that the mandate should be brief, succinct and to the point. That is what we have produced in draft, and we would be very interested to hear what noble Lords think about that. I encourage all noble Lords to feed in their views as to whether we have got the balance right.

On housing aids, I do not think there is anything specifically in the mandate on that. On the other hand, one of the features of the integration of services will be for the health service to work much more closely with social care. We believe that the health and well-being boards will provide the best forum to do that. I hope

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that through mechanisms such as pooled budgets-and indeed the support that my department is already giving local authorities to bolster their social care budget-such housing aids can be maintained as we move into the future.

Lord Walton of Detchant: My Lords, many aspects of the Statement are most welcome. I particularly commend the reference to the enhancement of research in the National Health Service, which was one of the concerns widely expressed during the debates on the Health and Social Care Bill, which is now an Act. Turning to that Act, can the Minister say what progress is going to be made and what help will be given to the major general hospitals that are intended to become foundation trusts but which at the moment have no particular prospect of becoming so for a variety of reasons?

Perhaps I may also briefly mention something that was not covered in the Statement-the crucial importance of issues relating to the education of healthcare professionals, a matter to which I, and many of my colleagues, referred during the debates on the Act. What progress has made on establishing the so-called clinical senates? I know that according to Sir David Nicholson we can no longer talk about regions-we can talk about sub-national structures. What is going to happen to those clinical senates that are going to have the responsibility of holding the postgraduate deans and the programmes of education and training which they will in future supervise?

The other thing about which we were very concerned was the commissioning of highly specialised services which, during the debates, it was agreed would become the responsibility of the national Commissioning Board. What progress has been made in developing the outreach centres under the national Commissioning Board that will be responsible for commissioning those highly specialised services at a local level? In relation to that, there is an issue that is quite crucial and important-the future of the organisation presently called the Advisory Group for National Specialised Services. It has a budget at the moment of about £100,000 a year. It has been able to support the introduction and use of remedies for treatment of a number of exceptionally rare diseases. It fulfils a vital function. Will it be absorbed and taken over by the national Commissioning Board? Will that body then carry on with those responsibilities? These are quite important issues about which many of us are concerned.

Earl Howe: The noble Lord asked me a number of questions and I will do my best to answer them. First, on education and training, the news is that on 28 June Health Education England was legally established as a special health authority and held its first board meeting. From October this year, Health Education England will start to provide national leadership and oversight to the new education and training framework in England. It will take on, as the noble Lord knows, its full responsibilities from April 2013. The chair, Sir Keith Pearson, and the chief executive, Ian Cumming, have been appointed. Both are men of very high calibre, as I am sure the noble Lord knows.

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On the matter of clinical senates, the plans for those will develop over the summer. My advice from Sir David Nicholson is that he should be able to provide further and better particulars in the autumn on how they will look. The noble Lord is absolutely right that they will play an important part in helping to advise not only commissioners in the health service but also the local education and training boards about configuration.

On specialised services, the draft mandate emphasises the importance of driving improvements in the £20 billion of services commissioned directly by the board, including specialised services for people with rare or very rare conditions. One of our proposed objectives in the draft mandate asks the board to put in place arrangements to demonstrate transparently that these services are of high quality and represent value for money. Objective 21 is the crucial one to which I would refer the noble Lord.

On the question about the Advisory Group for National Specialised Services, we will be making an announcement about AGNSS as soon as we can. There is work in train at the moment to look at exactly how AGNSS's work, which of course is very valuable, can be transposed into the new system. Unfortunately, I do not have any definite news for the noble Lord at the moment.

As regards assistance for foundation trusts, the noble Lord asked about the foundation trust pipeline. I would refer him to page 28 of the Secretary of State's annual report. Broadly speaking, however, apart from a few financially distressed trusts, some of which I have already referred to, we believe that the great majority of NHS trusts will be ready to take on foundation trust status either in the spring of 2014 or fairly soon thereafter. We have no reason to think that the timetable we discussed during the passage of the Bill has slipped materially.

Baroness Williams of Crosby: I add my appreciation to that of my noble friend Lady Barker to the Government for putting so much information before Parliament and for inviting Parliament to help work out some of the massive changes that will be required to enable the NHS to deal with the problems confronting it. I also welcome my noble friend the Minister's comments making it clear that a level playing field now exists between the NHS and the private sector, contrary to widespread views that the NHS is coming to a messy end.

I have one important question for my noble friend which echoes in some ways the question asked by the noble Lord, Lord Walton of Detchant. It concerns the issue of primary care which he was discussing with the noble Lord, Lord Hunt. Clearly, a reconfiguration of health will be heavily dependent on the ability of the primary care sector to deal with a great many of the issues that come before it and to pass them on to the community or ancillary professions wherever possible in order to avoid unnecessary attributions or referrals to hospital. In that context there is one very disturbing issue which we have to address and on which I would particularly welcome the Minister's comments. He will know, as most of us in the House who are concerned with the health service will know, that there has been a

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much more rapid increase in the number of young men and women trained for consultancy than for general practice-the figure is something like three times the increase for GPs in the past five years. Given that there is in general practice a very rapidly rising proportion of young women, there is an issue of maternity care and the necessary reduction in hours associated with many young women GPs. I say that with the recognition that it creates some problems. I think that most of us in the House would agree that their quality is equal to that of the men but often they do need periods of shorter service.

Finally, there is the very serious problem of the substantial bulge in GP retirement that is coming up in the next couple of years, as the Minister will know. My question echoes that of the noble Lord, Lord Walton, in terms of training and education. What provision is being made to encourage young men and women to go into general practice; is adequate provision being made to train them; and are there incentives for them to enter into the profession in that capacity?

Earl Howe: As so often, my noble friend has alighted on a real issue and I am grateful to her. She is right that we are not seeing enough trainee doctors going into general practice. The previous Government and we have had informal targets for new GPs. We have not met those targets for a few years now. It is a matter of concern and we are working very closely with the universities, the Royal College of GPs and others to see how the numbers can be rectified. It is not just a numbers game because, as she rightly alluded to, we should increasingly be seeing a better sharing-out of responsibilities in the community between not only GPs but community nurses, practice nurses, midwives, health visitors and others. There is quite a lot of work to be done there.

My noble friend is right about women GPs, and headcount numbers in that context are not always the most reliable indicator of the workforce number. This is part of the reason why we set up Health Education England, because with the advice of the Centre for Workforce Intelligence, the body that advises the Government on long-range forecasts of workforce needs, and the input from local providers-primary care providers, not just hospitals-of what they see as their needs into the future, we ought to get a much better handle on long-term needs for the different professional disciplines.

I do not at all brush aside this problem. I hope my noble friend realises that this is a real issue and we are grappling with it. Actually the NHS has grappled with it for a number of years, partly unsuccessfully, but we hope to do better with the new configuration that we have debated so often.

Baroness Wall of New Barnet: My Lords, I welcome the report and in particular I thank the noble Earl for his emphasis-which I would like him to re-emphasise when he responds-on just how hard people are working in the NHS. As always, I reflect my own experience. I do not live in a different world from other people and I certainly know from the trust that I am chair of that people are working exceedingly hard.

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Although there are some reservations, if I may say so to the noble Earl, around the progress we are having, I think that that is more about people getting used to what the changes mean. In particular, I want to focus on the CCGs. As the noble Earl knows, my trust has a hospital in Barnet and one in Enfield. Barnet CCG is firing away and working brilliantly. Enfield is still trying very hard to get its act together. The noble Earl knows how much I care about this, and the effect is that we are not getting the primary care out in Enfield where we need it. I would have liked the report to have focused more on moving away from hospitals-which I know is supposed to be heresy for someone who is the chair of a provider trust, but I really believe this-and making sure that we have the opportunity for more primary healthcare and support for those CCGs to be urged forward.

I know we have only a minute so I am not going to say anything else because I know other colleagues have been waiting desperately to get in, but there is a lot more I could say.

Earl Howe: The short answer to the noble Baroness is that she is, of course, absolutely right about service redesign locally. It involves the kinds of conversations that are already happening in many areas between primary and secondary care clinicians to see how we can bring about that shift that most experts agree is desirable and certainly patients want to see. This is an ongoing conversation. I do not know as much as I should about the noble Baroness's particular area of the country, but I will gladly follow that up with her after this.

Lord Cormack: My Lords, very briefly, my noble friend indicated progress towards the elimination of mixed-sex wards. This issue causes quite a degree of anguish in the country. When can we expect to see the end of them?

Earl Howe: My Lords, my noble friend is absolutely right. However, the NHS has made staggering progress. The reduction in mixed-sex accommodation has been virtually-but not quite-total, but it is something that we continue to emphasise to the health service and which will continue to matter, in the context of the NHS outcomes framework, in the patient experience domain, which is contained in the mandate.

Global Fund: AIDS, Tuberculosis and Malaria

Question for Short Debate

7.24 pm

Asked By Lord Fowler

To ask Her Majesty's Government what plans they have for helping the development of the Global Fund to Fight AIDS, Tuberculosis and Malaria.

Lord Fowler: My Lords, first, I very much welcome the number of speakers who have put their names down for this short debate, which I think speaks volumes for the importance of making progress in this area.

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I speak as an enthusiastic supporter of the Global Fund. I saw it in its early stages, when Richard Feachem was director, and I pay tribute to all the pioneering work that was done then. The fund has already done vast good. It has an enormous canvas: HIV/AIDS, tuberculosis and malaria. Without exaggeration, it is one of the most ambitious health programmes that the world has ever seen. The lives of millions of people have been saved, but the bleak fact is that much, much more needs to be done. The challenge remains immense.

With HIV/AIDS, the world death toll is still 1.8 million a year, 30 or 40 years after the virus began its deadly sweep, first through sub-Saharan Africa and then through so much of the rest of the world. With TB, the latest figures show a death toll of 1.7 million, with the highest number of deaths in the Africa region. With malaria, there were an estimated 655,000 deaths in 2010, of which 91% were in Africa. Of course, these diseases do not fit into neat, separate boxes. Together, HIV and TB form a lethal combination, each speeding the other's progress.

There is no question of the size of the death toll, but the added tragedy is that we are not being held back by a lack of knowledge of what needs to be done or what measures are necessary to save lives. When I was Health Secretary, dealing with HIV at the beginning of the crisis, there were no drugs to prolong life. I remember visiting a hospital in San Francisco, where there was a large ward full of young men simply dying from AIDS, with nurses being able to do absolutely nothing. Of course, the same was true here in London. Today is the exact 30th anniversary of the death of Terrence Higgins, the first person in the UK to be publicly identified as dying from AIDS, who has given his name to one of Europe's most effective civil society organisations working in this field.

That was the 1980s, but today we have anti-retroviral drugs that are easy to take and able to ensure that a man or woman can live a long life. The means are there to tackle the disease, just as they are with TB and malaria. What is lacking in the world today are the resources that are necessary to take full advantage of the medical advances, and the political will to bring this about.

In its brief life, the Global Fund has done wonders. It has approved grants worth $22 billion for 150 countries. It has provided anti-retroviral therapy for an estimated 3 million people. It has detected and treated almost 8 million cases of TB between 2002 and today. It has enabled the treatment of 170 million cases of malaria. Of course, I acknowledge that there have been some problems in resources reaching the people for whom they were intended, although frankly these should not be exaggerated. When they have arisen, they have been tackled, and they continue to be tackled very effectively by the Global Fund and its excellent new general manager, Gabriel Jaramillo. The real characteristic is that money donated to the Global Fund has reached its target; that is not the problem.

The real problem lies with Governments. Some do not give anything at all and simply ignore the problem that is on their doorstep. I will give one example from the area I know best, HIV. One of the fastest growing epidemics in the world today is driven by injecting drugs. It is a problem in eastern Europe and many

4 July 2012 : Column 747

other countries. It is certainly fuelled by criminally imported drugs, but also by deadly home-made combinations. According to UNAIDS, only eight of every 100 people who inject drugs have regular access to sterile injecting equipment. Half the countries with epidemics centred on injecting drug users have no needle and syringe programmes at all. Yet all the evidence is that programmes such as clean needle exchanges work in reducing and almost eliminating infection. In Britain we started such a policy in 1986-87 and the result is that only 2% of new cases now come that way. I hope that the Minister will take the opportunity to underline the continuing support of the Government to this policy, given the comments that have been made outside this House.

That brings me on to a specific issue concerning the Global Fund. Ukraine, where I spent a week recently looking at the issues, has a massive problem of drug users injecting themselves. There are no government-run needle exchanges and no substitution programmes, but a great deal of discrimination and stigma. All prevention work is carried out by civil society organisations, notably the excellent International HIV/AIDS Alliance. It, in turn, is financed by the Global Fund. It has limits on its financial resources, so has decided to concentrate help on the poorest nations. We can see the reasoning behind that, but it means that help for poor, middle-income countries such as Ukraine will reduce and eventually be eliminated. The effect is to throw responsibility back on the Government of Ukraine, but frankly there is no sign whatever that they are ready to pick up the challenge and give that policy priority. We face the real prospect that the progress that has been made will be reversed.

That is the underlying fear in all three areas that we are debating tonight. Massive advances have been made by the Global Fund but the danger is that the potential to do more good and save more lives will be ignored as we walk on the other side of the road. In that respect, let me say this about the Government's response. Like the previous Government, the coalition has been a firm supporter of the Global Fund. We are the third biggest contributor and no one can doubt the commitment of DfID and the Secretary of State, Andrew Mitchell-I would expect nothing less from the MP for Sutton Coldfield. However, the general position is not remotely as encouraging. We are going through the most difficult period in the fund's history. At the end of last year it cancelled its 11th round of grant-making, which would have involved spending of $1.5 billion. It did that because of fears of inadequate funding. The result is that no new grants will be approved until 2014, although existing contracts will obviously be continued.

That position has caused dismay among civil society organisations. Again, it needs to be stressed just how much is done in all these areas by non-government organisations. They have filled a gap and without their work millions of lives would have been lost. In these circumstances what can this country do? The answer is that we should seek to take a lead to give an example that others might follow. The Secretary of State has made it clear that he is prepared to increase very

4 July 2012 : Column 748

substantially the Government's contribution to the Global Fund for 2013 to 2015 by up to double-in other words, double the current amount of £384 million. That is a very significant promise that I wholeheartedly welcome. I urge that the occasion should now be found to make the pledge a firm commitment. By itself, the increased contribution will save lives but the hope must be that an announcement of that kind will unlock other funds from around the world. The Global Fund has already shown what it can achieve. The aim must now be to allow it to achieve its full potential.

7.34 pm

Lord Parekh: My Lords, I thank the noble Lord, Lord Fowler, for securing this debate and for introducing it so well. Since he has provided a large number of relevant statistics, I am spared the trouble of having to rehearse them.

I think that the Global Fund has been doing excellent work, largely because of its overall strategy. It is innovative and engages in demand-driven financing. Its funding is based on performance, it engages local communities, and it receives contributions from the private sector as well as voluntary organisations and the Government. All that gives it a certain strength. As it is in the process of revising its strategy for the next few years, I want to propose three or four important ideas that it might like to consider.

First, the fund used to do a little more than it has done so far to negotiate with manufacturers to reduce drug prices, which eat into its funding and limit its capacity to help the 150-odd countries that are its members. Secondly, it needs to concentrate a little more than it has done on strengthening health systems. Currently it allocates about 36% of its investment to that. I feel that it needs to do a little more in this area and to reconsider its priorities. In terms of strengthening health systems it needs to pay more attention to raising public awareness of the three major pandemics with which it is concerned, concentrating as much on prevention as on cure, making sure that the nursing staff and others are well trained and that there is an international exchange of experts from developed countries to the poorer countries. It has almost completely ignored that area and my experience is that there are a lot of people who could be persuaded to go to developing countries and help to train staff.

Thirdly, regional results are uneven. Grants for TB were achieving between 82% and 100% of their targets, but for malaria the figure fell to between 59% and 82%. Why are the malaria-related grants performing less well than those for TB? One could say that in some parts of the world there has been a growth of parasites that are resistant to artemisinin-for example, in south-west Asia. That by itself would not explain it and one would like to see some monitoring of those uneven results. Finally, although the Global Fund has been involving civil society organisations, as the noble Lord, Lord Fowler, pointed out, perhaps there is scope for greater civil society intervention in terms of planning strategy, putting pressure on Governments and monitoring the harmful industrial activities that resulted in these three pandemics in the first instance. That kind of work can be done only by civil society organisations,

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because the Global Fund by itself is seen as an external body and cannot be seen to be interfering in the internal politics and activities of the receiving countries.

7.38 pm

Baroness Hayman: My Lords, I, too, congratulate the noble Lord, Lord Fowler, on initiating this debate and on his long-term commitment in this area. I declare non-financial interests as a trustee of the Sabin Vaccine Institute and vice-chairman of the Parliamentary All-Party Group on Malaria and Neglected Tropical Diseases.

The noble Lord, Lord Fowler, said that these diseases tackled by the global fund do not form neat, separate boxes. Indeed, they do not. Tonight, I want to concentrate on the connectivity and co-morbidity between neglected tropical diseases and the diseases covered by the global fund. Recent evidence, published in the New England Journal of Medicine in an article by Peter Hotez the director of the Sabin Vaccine Institute, Jeffrey Sachs, and others has shown that there is a widespread geographical overlap between the prevalence and severity of HIV/AIDS, tuberculosis, malaria and NTDs. In the brief time tonight, I wish to highlight some of the opportunities that the cheap and effective treatments available for NTDs bring to that fight against HIV/AIDS, malaria and TB.

Investment in mass drug administration programmes were given a great boost at the London summit on NTDs, partly by, as the noble Lord, Lord Parekh, will be pleased to hear, the vastly increased donations of drugs from pharmaceutical companies and the very welcome additional funding from DfID. Sustained effort in this field would not only diminish the suffering and increase the educational and economic prospects of some of the world's poorest people but, beyond that, additional resources and support from the global fund for integrated programmes could prove highly potent in the fight against the major killers that we are discussing tonight.

The scientific evidence for such an approach is, I believe, growing more potent by the day. For example, we know that those poor children infected by helminths-horrible worms which debilitate and stunt their lives and which can be treated for 50p per child per year-are more likely to acquire TB, and the acquisition of TB will make for more expensive and problematic treatments. Similarly, when hookworm overlaps with malaria, as it does throughout sub-Saharan Africa, the result is profound and debilitating anaemia, especially in young children. The association between schistosomiasis and HIV prevalence and susceptibility is becoming clearer all the time. Research has shown that treating girls and women regularly for schistosomiasis can help to protect them from HIV infection, and that women with female urogenital schistosomiasis, which causes genital lesions, are three or four times more likely to have HIV infection.

It is difficult to deal with some of these complicated interactions in the short time available but I should like to make it clear tonight that, by investing in research into possible vaccines for some of these diseases, bundling together treatments for NTDs and the global fund diseases, we do not lose focus; rather, we prevent ourselves putting on blindfolds that could stop us getting great value for money and alleviating much suffering.

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Lord De Mauley: My Lords, I apologise for intervening. I know that what noble Lords have to say is extremely important. However, they will appreciate that this is a time-limited debate and that there is very little spare time in the budget. Every noble Lord who goes over his three minutes is therefore eating into the time of noble Lords who speak after him.

7.42 pm

Lord Lexden: My Lords, my noble friend Lord Fowler has done this House another profound service by bringing before us this evening the state of this important and ambitious global fund on the anniversary of the death of Terrence Higgins. I repeat some of the astonishing figures that he gave.

By the end of last year, the fund's work had given more than 3 million people access to antiretroviral drug treatments to combat HIV, almost 8 million people had been treated for tuberculosis, and more than 230 million mosquito nets had been distributed to help to combat malaria. These are truly impressive figures, and they underline the importance of securing effective solutions to the fund's recent administrative and internal problems. As the International Development Select Committee of the House of Commons noted, donor contributions fell as the fund attracted some negative reports about the misappropriation of some limited funds. A body which has come to be regarded, in the committee's words, as,

"an effective international financing institution",

and which has helped to save 7.7 million lives in over 150 countries was forced to cancel its latest round of funding applications, as we heard from my noble friend, anticipating significant shortfalls as a result, in part, of growing doubts among donors about the organisation's management.

The pace of reform at the fund has been significant. My right honourable friend the Secretary of State for International Development said recently that,

"strong leadership is now in place and action is being taken to begin a process of robust reform".

He made it clear that the Government are,

"prepared to agree a significant increase",

in their contribution to the fund if the reforms succeed. If the British contribution is increased, a clear signal will surely be sent to other donors that Britain believes that the fund has established itself firmly as a strong and efficient organisation capable of providing the continuity of care which millions in the world's poorest countries need so much. As the Bill and Melinda Gates Foundation stressed at the height of the allegations over fraud, while,

"dealing with these hard-to-reach places is challenging ... not trying to save these lives is unacceptable".

Now that the fund is committed to,

"better financial and risk management",

and to delivering the best possible returns on taxpayers' money, Britain should prepare itself to lead a global recommitment to support an institution upon which so many depend.

This coalition Government pledged at the outset to strengthen our country's contribution to tackling the problems of the developing world. It is to the

4 July 2012 : Column 751

Government's credit that, even during a time of severe economic stringency at home, they have held fast to that pledge. Compassionate conservatism is in fruitful alliance with liberal democracy. In Milton's words from Paradise Lost:

"good, the moreCommunicated, more abundant grows".

7.45 pm

Lord Rea: My Lords, the noble Lord, Lord Fowler, has, as usual, chosen a topic which urgently needs to be addressed. In three minutes I shall try to cut to the quick.

The global fund has been an overall success, as everyone has said. DfID has played a major part in this, recognising its transparency and accountability. In fact, the global fund itself recently detected and put right a minor accountability problem within its organisation. It was a small fraudulent diversion of funds, I believe, but that was seen to.

The global fund is a very focused organisation which funds vertical targeted programmes. However, subsidiary aims are to assist and strengthen national healthcare systems and support civil society. Many, like the noble Lord, Lord Parekh, feel that this should have greater emphasis, as only then will the programme initiated by the global fund be sustainable. These aims need to be integrated into the general healthcare provision of the countries concerned. HIV, TB and malaria are a heavy burden but they are only part of the whole infectious diseases picture, let alone the increasing role in the developing world of non-communicable diseases.

In April, the Secretary of State for International Development, Andrew Mitchell, said that, following up its already substantial grant to the transitional funding arrangements to take the place of the missing funds from the cancelled Round 11, the UK could increase its contribution to the global fund very substantially, as the noble Lord said, in 2013, 2014 and 2015 by up to double the current £384 million pledge. Can the noble Baroness give us some indication of how much it will be and when the amount will be announced? What occasion will the Secretary of State choose to make that statement? The money is urgently needed, as already several programmes have had to be either contracted or postponed. I am worried in particular by the postponement of plans to address emerging threats such as resistance to artemisinin combination therapy, in Myanmar-Burma. That of course is the main, if not the only, weapon against the malaria parasite. I hope that, if a donation is made, other countries will be encouraged to contribute to the fund, as the noble Lord suggested will be the case.

7.49 pm

Baroness Masham of Ilton: My Lords, the worldwide emergence of multidrug-resistant tuberculosis is a major and most important threat to global tuberculosis control. The continued spread of extensively drug-resistant tuberculosis throughout Asia, eastern Europe and southern Africa is an ominous sign. There are two issues regarding multidrug-resistant TB. There is a

4 July 2012 : Column 752

lack of diagnostic tests, and new diagnostic technologies for detecting drug-resistant TB are now available but are expensive and constrained by round 11 of the grant of the Global Fund. There is lack of access to second-line TB drugs for drug-resistant TB and the Global Fund should invest more in provision of adequate TB drugs. In Africa, 70% of TB patients are co-infected with HIV. A large percentage of TB and HIV cases remain undiagnosed. More proactive routine screening needs to be introduced at all points of care. All receiving countries should account for their funds so there is no malpractice.

Decades of the use of anti-TB drug treatments have resulted in the growth of multidrug-resistant tuberculosis strains. The highest ever prevalence in the world of MDR TB was found in Minsk, Belarus. MDR TB was found in 35.3% of new cases and in 76.5% of those previously treated. In addition, extensively drug-resistant TB was found in 14% of MDR TB cases. This is much higher than the global average. We must not be complacent. I think of the unfortunate 15-year-old girl who died of TB in Birmingham having not been diagnosed by her GP or four different hospitals. She had had TB in 2009 and was struck down again in 2010. I hope lessons will be learnt from this tragic case. Eastern Europe has the highest level of infection, but London has the highest TB rate in any European city. I am pleased that WHO has praised the UK's Find and Treat service, which uses a mobile X-ray van to screen homeless people and drug addicts in London for TB. I too think that it does a splendid job: its vital work must always be supported.

7.52 pm

Lord Black of Brentwood: My Lords, I join with others in the heartfelt plaudits for my noble friend and welcome the vital work of the Global Fund. For more than 10 years it has been saving lives, saving families and sometimes saving entire communities that might have been ravaged by TB, malaria or HIV. However, the fine work that the fund undertakes will only ever be part of the solution unless we do much, much more across the world to tackle the stigma which is so often the engine which drives the transmission of these diseases.

This issue is at its starkest in the battle to bring HIV and AIDS under control in the developing world. In much of Africa, particularly in those countries ravaged by HIV, it is still regarded as a great taboo, with sufferers marginalised by society. Far too many of them continue to be driven underground, their conditions untreated, allowing the virus to flourish, often on the margins of society.

Decriminalisation of homosexuality in countries where it is still illegal-some 80 of them worldwide, which is a shocking figure-would be a major step forward in breaking this vicious cycle of stigma. I commend the work of the Human Dignity Trust in this field. Its efforts to ensure the application of international human rights laws in countries where they are ignored is groundbreaking and will do a huge amount to complement the vital work of the Global Fund. They must work hand in hand. I hope this House may be able to debate the subject of decriminalisation at some point.

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TB too suffers from stigma which can make it difficult to tackle. It is all too often seen as a disease of the poor and disfranchised, of those living on the fringes of society. Although it can be treated quite easily, many do not get the therapy they need-including a long and expensive drug programme-because of the fear of marginalisation. One of the principles of the Global Fund is to,

"pursue an integrated and balanced approach to prevention and treatment".

That should include the provision of carefully formulated and informed education programmes to ensure that those societies and communities most affected or at risk have a better understanding of these diseases, for it is only understanding that will lead to a reduction in stigma. Schools and a free media have an absolutely fundamental role to play in ensuring that, over time, those who suffer from HIV and TB in particular are treated not as pariahs but as ordinary people who, through no fault of their own, have contracted illnesses which, if left untreated, will kill them.

7.55 pm

Lord Boateng: My Lords, the whole House-and, indeed, the wider world-owes the noble Lord, Lord Fowler, a debt of gratitude, not only for this debate but for his leadership on this issue. The Global Fund is a unique and special model for development in that it is a partnership between donor Governments, civil society and the private sector. That is a very special partnership and I declare an interest, serving as I do on the global health advisory board of a major pharmaceutical company led by Sir Richard Feachem, the founder of the fund.

I seek, this evening, to draw attention to one particular aspect of that partnership in the fight against malaria that urgently needs additional resource if the momentum is to be maintained. The reality is that the funds committed to malaria are expected to peak this year at just under £2 billion. They will remain substantially lower than the resources required to achieve the global targets under the millennium development goals, which are estimated at just under £5 billion for 2010 to 2015. We will not be able to build on the real gains that have been made in combating malaria globally, and in sub-Saharan Africa in particular, without added momentum being given by additional, concrete pledges to the Global Fund. The fund has been described by our own multilateral aid review as having given "very good value" to the taxpayer and,

"very high standards for financial management and audit".

That is where the Global Fund is now, after the reforms, and we should back it. I commend the Secretary of State for International Development for the excellent work that he and the department have done in supporting development generally and in healthcare in particular. However, we now have to concretise that support in terms of pledges if we are to see the gains already made consolidated.

I will make five quick points in relation to malaria. We know that interventions on it are cost-effective, saving more lives per dollar spent than interventions for most other diseases. We also know that it requires long-term financing commitment for country-implementation activities and, importantly, for research

4 July 2012 : Column 754

and development. From my own experience of a childhood lived under bed nets-and with ready access to drugs, because of the fortune of my parents' financial situation-in a country which was first colonial, then newly independent, and where there was an effective public health system able to promote spraying as part of a unified response to the challenge of malaria, I know that it works. It is something where you can see real gains made and we have seen them in Swaziland, Namibia and South Africa.

In Swaziland there is a blessing: "Pula! Pula! Pula!"-let it rain, three times. Let the demonstrated largesse and compassion of the British taxpayer rain on the Global Fund.

7.58 pm

The Earl of Sandwich: I too am grateful to the noble Lord, Lord Fowler, and to the all-party group which has very helpfully briefed us. My experience comes from the voluntary sector in east Africa with Christian Aid and other local church partners working on HIV/AIDS. On these visits, I am always impressed by the resilience of the individuals who often suffer-as the noble Lord, Lord Black, says-in isolation and the critical role of the family and the community around them, on which the hope and investment of outsiders must always be based. I also admire their ability to put up with the ignorance and incompetence of outsiders coming in-even health professionals-who may be the victims of larger issues such as corruption in their department. On a parliamentary visit to Kenya a few years ago it was clear that the extent of graft in the procurement of pharmaceuticals was such that the health ministry had been simply split in two, and no one could even rely on the safe supply of drugs on the WHO list; they were still stuck in warehouses.

Today, we are primarily concerned with the shortfall in funding but, as we go along, we have to recognise the frailty of human beings and systems. Families are so often left to cope alone. We need to train more local health auxiliaries. As the noble Lord, Lord Parekh, has said, we need to give much more support to civil society. It is always easy for aid agencies to throw money at poverty through ineffective bureaucracy rather than working closely with the people most concerned. This is how the World Bank and other large organisations came a cropper in South Sudan two years ago. We know that the Global Fund itself has suffered from serious fraud, although I am glad that that has been addressed. I join others, including the International Development Committee, in again asking Her Majesty's Government whether and why DfID's funding is being held up, and if they are delivering on their promises.

I find that I can trust the voluntary agencies to work closely with the local community. Agencies like Save the Children are expanding their HIV and AIDS programmes all the time. Save the Children is in 16 countries. In 2010 it reached more than 194,000 children in Ethiopia and Mozambique. My main question for the Minister is whether DfID is adequately committed to working closely with the voluntary sector. Are the IPAPs-the international partnership agreement programmes, whereby DfID ensures continuity and funding over a given period-still in place?

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The Global Fund has a remarkable record and DfID has been one of its leading advocates. Can the Minister say what proportion of Global Fund funding has been through the non-governmental agencies? I know that that is a difficult figure to arrive at but, if it could be as high as 20%, that would be an amazing achievement for the voluntary sector.

8.02 pm

Lord Sheikh: My Lords, the Global Fund to Fight AIDS, Tuberculosis and Malaria is a truly worthy cause which has transformed the lives of many since its creation in 2002. Programmes supported by the global fund have provided AIDS treatment for 3.3 million, anti-tuberculosis treatment for 8.6 million and 230 million mosquito nets for the prevention of malaria. It has also approved over £14 billion for programmes in 150 countries. The global fund works in collaboration with other bilateral and multilateral organisations to supplement existing efforts in tackling the three diseases. The factors I find most appealing about the global fund model are the concept of country ownership and performance-based funding. It is making a direct contribution to the fulfilment of three millennium development goals, which cover child health, maternal health and combating HIV/AIDS.

Noble Lords will be aware that the global fund was plagued by scandals involving corruption and the misappropriation of funds which caused some countries to temporarily suspend payments. It was necessary to implement structural and management reforms. The global fund has recognised the need for there to be transparency and the need to root out corruption and malpractice.

The global fund has now made efforts to achieve greater efficiency by streamlining its operations through creating small departments with particular remits. Disease management committees meet once a month, including partner countries, to assess progress. The global fund also monitors the results of its direct investments in the 150 countries. I sincerely hope that this will provide comfort to some taxpayers who are doubtful about the merits of international aid.

The UK is the global fund's third largest donor. Last March, DfID's multilateral aid review rated the fund as one of the highest-performing multilateral organisations, which gave "very good value" to the taxpayer and had,

"very high standards for financial management and audit".

It is for this very reason that I feel Britain should increase its contribution to the global fund over and above the current £384 million pledge over three years. If we increase our contribution, it will also help to attract greater financial support from other countries. I therefore ask the Minister to tell your Lordships' House whether there are any plans to increase our contribution to the global fund.

8.05 pm

Lord May of Oxford: My Lords, I, too, thank the noble Lord, Lord Fowler, for this characteristically excellent debate. My contribution is essentially a statistical

4 July 2012 : Column 756

appendix to some of the earlier statements, particularly those of the noble Baroness, Lady Hayman. I also declare a professional interest: my contribution is an attempt at a three-minute précis of my one-hour opening keynote to the International Congress of Parasitology in Glasgow six years ago.

We all know that the better understanding of biomedical things has lengthened lives in both the developed and developing worlds, but what actually is the pattern? A recent study shows that in rich countries about 7% of mortality is associated with infectious diseases. Only one of those seven percentage points is covered by TB, HIV and malaria. In the developing world, by remarkable contrast, 57% of mortality and morbidity arises from infectious diseases, and 16 of those 57 percentage points-two in seven-are the big three that are currently centre stage.

The neglected tropical diseases that my noble friend Lady Hayman referred to have many manifestations. First, a study of research in the four major medical journals shows that something like 12% of papers deal with diseases of the tropics; the British journals are better than the American ones, I would say. Not surprisingly, perhaps, of the 1,233 new drugs licensed world wide from 1975 to 2000, only 13-less than 1%-were for tropical diseases. Of those, five were accidental by-products of veterinary studies; only four were actually targeted deliberately.

Why is that? Only 1% of the global expenditure on drugs and vaccines comes from Africa. Only another 1% of it comes from the Middle East. Even south-east Asia and China account for only 7%. We are focused on diseases of the rich. We need to change that perspective.

In conclusion, not everything is biomedicine. The millennium development goals focus on maternal health and infant health. It is increasingly clear that smaller families work towards delivering both those goals. We are seeing declining birth rates as more women are educated, and we see more demand for access to non-coercive fertility control. Against that background, it is obscene that US legislation forbids any advice on contraception under work sponsored by government funds. It is even more obscene that the Vatican has an arm explicitly dedicated to communicating untruths about the inefficiency of condoms against HIV. In short, we are doing well but we could do a hell of a lot better.

8.09 pm

Lord Hunt of Kings Heath: My Lords, it is a great pleasure for me to wind up for the Opposition on this very important Question. In the unavoidable absence of my noble friend Lady Kinnock, I, too, congratulate the noble Lord, Lord Fowler, on his commendable efforts tonight and on his long-standing and excellent record in this area.

We heard a very important contribution from the noble Lord, Lord May, which I hope that the Minister will be able to respond to. I also commend the noble Baroness, Lady Masham, for the remarks that she made. She reminded us that, although tonight we debate the global challenge of HIV, TB and malaria, we have a challenge in this country. She mentioned my own city, Birmingham, and a very tragic TB case.

4 July 2012 : Column 757

The trust that I chair runs one of the clinics involved. I want to tell her that I very much take her point to heart. Just as tonight we support the Global Fund in its worldwide efforts, it is very important in Birmingham that all of us get our act together to make sure that we deal with issues in relation to HIV and TB in an effective way.

The previous Government gave tremendous support to the fund and I echo my noble friend's remarks on that matter. But so, too, we commend Mr Mitchell for the work that he has done. I hope that in the spirit of all sides of the House coming together, the Minister will be able to give us good news when she comes to wind up the debate.

As the noble Lord, Lord Fowler, said, much has been done by the fund but much more needs to happen. There is real concern about the decision that the fund had to take to cancel Round 11 of the funding grants in November 2011. There were various reasons for that, which we have heard about, such as the global economic downturn and the issue about fraud, which was exposed in part, as Aidspan has argued, because the fund has a commendable commitment to anti-corruption and transparency. As the Minister will know, the fund has moved swiftly to implement a programme of reform. Her noble friend has already told the International Development Select Committee that his department would announce new funds as soon as they were confident that the money would be well spent.

Clearly the Global Fund has to do more, but it has moved very quickly in the past few months. I simply ask the Minister whether she will prevail on her right honourable friend Mr Mitchell to be able to make an announcement very soon. That would be a fitting conclusion to this excellent debate.

8.12 pm

Baroness Northover: My Lords, I thank my noble friend for securing this debate on the Global Fund to Fight AIDS, TB and Malaria. My noble friend's record in this area is second to none, as the noble Lord, Lord Hunt, indicated, and he introduced this debate very powerfully. I, too, pay tribute to the Terrence Higgins Trust on this, the 30th anniversary of Terrence Higgins' death.

As many noble Lords have said, the Global Fund has accomplished much, but there is still much to do. It was founded to increase funding on a massive scale to change the course of AIDS, TB and malaria, and in its first decade results have been dramatic. The fund has become the largest multilateral funder of programmes addressing the health-related MDGs. It has approved more than $23 billion for more than 150 countries.

The UK Government-this and the previous one-have been a major supporter of the fund. In 2007, they pledged up to £1 billion between 2008 and 2015. They have consistently brought forward and increased their commitments to live up to this pledge. Recently my right honourable friend the Secretary of State for International Development confirmed that the Government would commit £128 million this year, next year and the year after. That means that we will meet in full, and a year early, the 2007 pledge to make the UK the fourth largest donor to the fund.

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More than 3.3 million people in the world's poorest countries are receiving life-saving and life-prolonging antiretroviral treatment through the fund. Ten years ago, there were almost none. The fund has helped to detect and treat more than 8.6 million new cases of infectious TB, has delivered 142 million malaria drug treatments and more than 230 million insecticide-treated bed nets, saving an estimated 6.5 million lives.

Prices for first-line HIV treatment have fallen dramatically, from approximately $10,000 per patient per year in 2000 to $125 in 2009. The fund has played a major role in shaping the market. New research suggests that treatment can also play an important role in prevention, and we have the opportunity to eliminate the transmission of HIV from mothers to children and to eliminate malaria in many endemic countries.

More than 33 million people live with HIV. There were 2.7 million new infections in 2012. Globally, the number of new infections is falling, but that hides regional disparities and, for every person put on treatment, two others become newly infected. According to the WHO, fewer than half of the 19 million people who need ARV treatment receive it.

Over the past few years, there has been significant progress in reducing deaths and illness due to TB, and 187 countries implement the WHO treatment guidelines. That has resulted in a decline of one third in deaths associated with TB since 1990. But the global burden remains significant and TB caused the deaths of 1.7 million people in 2009. There remain challenges: getting people to complete the long course of treatment; responding to drug resistance, as emphasised by the noble Baroness, Lady Masham; and HIV/TB co-infections. On drug-resistant TB, through DfID's support, 13 low-income countries with a high burden of TB now have state-of-the-art testing laboratories to detect multidrug-resistant TB. We also know that the issue is increasingly important within the United Kingdom.

Malaria is preventable and treatable. Insecticide-treated bed nets, indoor residual spraying and new artemisinin combination therapies (ACT), together with better diagnostic technologies and new vaccines under trial potentially give us powerful tools to combat this disease. Improvements in child and maternal health have been achieved. But there are many hard-to-reach people in fragile and conflict-affected regions, and drug and insecticide resistance pose real challenges for the future. That is an area where DfID is investing. I assure the House that that is a significant investment. Those were issues raised by the noble Lords, Lord Rea and Lord Boateng.

The fund remains critical to the fight against the three diseases. The UK's Multilateral Aid Review, as noble Lords have said, assessed the fund as providing very good value for money, but identified the need for serious reforms. My noble friend Lord Fowler and others referred to some of the issues that have arisen in recent times. In September 2011, a high-level independent review panel recognised the achievements of the fund but identified significant areas for improvement and reform. It argued that the fund needed to transform from an emergency to a more sustainable response to the three diseases. There is cross-over between these

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three diseases and others such as the so-called neglected tropical diseases to which the noble Baroness, Lady Hayman, referred. We have seen a knock-on benefit from investment in the three diseases in bringing down other diseases as well.

The Government have strongly advocated reform of the fund: a DFID official, in his personal capacity, chairs the board, and the UK continues to take a close interest in the fund and to lobby others to achieve the necessary changes. In November last year, a new strategy for the fund was approved. This challenges the fund to invest more strategically, in the way that the noble Lord, Lord Parekh, referred, and to provide better support to improve implementation at country level, to promote and protect human rights, and to raise money.

At the same time, there was considerable uncertainty over the financial position of the fund, which noble Lords mentioned. The board decided that it could not move forward with round 11, but in response to concerns that people then flagged up-that people would suffer as a result-it agreed transitional funding. I am pleased to tell the noble Lord, Lord Fowler, that the fund board has decided to accelerate funding decisions to spring 2013 and it still plans to spend between $9 billion and $10 billion during 2012-2014. The board also decided to bring in new, interim leadership to transform the organisation, and we are pleased that significant and rapid progress has been made. I note with interest what the noble Lord, Lord Parekh, said about strategically sharing expertise. He is right to look at the fund's activities in that strategic sense.

The fund also needs to think about where it works. Much remains to be done in low-income countries but there are particular challenges elsewhere. Nowhere is the spread of HIV/AIDS more rapid and aggressive than in eastern Europe and central Asia. As my noble friend Lord Fowler said, Ukraine has done almost nothing to address the challenges of HIV spreading among injecting drug users. Civil society organisations, often funded by the global fund, play a crucial role, as he emphasised.

In responding to a number of other points, I assure my noble friend Lord Fowler that the UK's drug strategy 2010 acknowledges the value of needle and syringe programmes. I am very happy to emphasise that. The noble Lord, Lord Black, and other noble Lords are quite right about the importance of addressing stigma, an issue on which the noble Lord, Lord Fowler, has been at the forefront throughout his own work. The noble Lord, Lord Black, may wish to note the commitment to human rights in the fund's strategy.

In response to the noble Earl, Lord Sandwich, the noble Lord, Lord Parekh, and other noble Lords, I say that 33% of the fund's disbursements are to civil society. The noble Lords, Lord Rea, Lord Fowler, Lord Lexden, and Lord Sheikh, and other noble Lords, asked about the uplift in commitment. The Government are looking for clear evidence in key reforms so that they can make sound judgments in early 2013 on future funding increases in 2013 and 2014. I have given the commitments that are already in place, so I am talking here about that increase.

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I thank noble Lords for their tributes to DfID for its support in this area but also for making sure that money will be well spent, as the noble Lord, Lord Hunt, and other noble Lords pointed out. The noble Lord, Lord May, focused on the absence of research into new drugs for neglected tropical diseases. It is certainly very important in the control of neglected topical diseases, and others, that research is carried out. I think he will be aware of the initiative that DfID announced, putting £21.4 million into that up to 2013.

In conclusion-I know noble Lords are desperate to get back to the Crime and Courts Bill-I emphasise that the Government will continue to support and monitor progress in the Global Fund. We have already confirmed that the UK will live up to its financial commitments. I confirm again that a significant uplift is also possible, subject to continued progress. We are optimistic in terms of the reforms that have been taken through. We recognise how the Global Fund, in 10 years, has transformed the prospects of millions around the world who were suffering from these three terrible diseases. However, we and the fund know how much more there is to achieve, which is why this debate is so timely.

Crime and Courts Bill [HL]

Committee (6th Day) (Continued)

8.24 pm

Amendment 149D

Moved by Lord Rosser

149D: Clause 26, page 25, line 5, at end insert-

"(6A) In the UK Borders Act 2007, in section 48 (establishment) after paragraph (2)(b) insert-

"(c) practice and procedure in facilitating the entry into the UK of all bona fide EU and other passport holders, in monitoring of waiting times for processing of incoming passengers at fixed control points, and in processing passengers on international train services between the nearest stations served on each side of the border.""

Lord Rosser: My Lords, my noble friend Lord Berkeley is not here but I will take the opportunity to move his amendment, if only to hear the Minister's reply. This amendment seems to address some of the concerns covered in the previous group, but relates to international rail services and the problem of delays to passengers on the Eurostar services caused by new immigration controls. It also sets out how that might be addressed. The amendment contains a number of proposals and appears to suggest a policy of facilitating and welcoming visitors rather than treating everyone in perhaps a less than friendly manner as a result of some of the delays which I understand occur on the Eurostar services at both Brussels and St Pancras. The amendment also refers to the monitoring of waiting times to process incoming passengers at fixed control points. It also talks about processing passengers on international train services between the nearest stations served on each side of the border.

I believe rather than know that there have been meetings between my noble friend Lord Berkeley and the Minister in which the issue of processing passengers on the train-which is perhaps a rather unfortunate

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phrase-might have been raised. The amendment also raises that issue. We are now part of an expanding high-speed rail network with the introduction of new routes using the Channel Tunnel and the prospect of new operators entering the field.

I think that I am right in asserting that there are significant issues with delays, certainly with Brussels-to-London traffic, which I think are caused in part by double passport checks on passengers at both Brussels and St Pancras, where, I am told, delays can be over an hour. If that statement is right-and I am sure that the Minister will correct me if it is not-it could be damaging to our image as a country and to our economy as it would have an adverse effect on tourism and on the UK as a base for new and expanding businesses.

I am absolutely sure that my noble friend Lord Berkeley would have had a great deal more to say, and that he would have said it an awful lot more effectively than I have, but if I am right in saying that the Minister has had meetings with him, I hope that the Minister will also be able to say where we are on the issue. Perhaps he could also say whether the issue of processing passengers on the train was raised with a view to eliminating some of the delays that are currently occurring. I beg to move.

The Minister of State, Home Office (Lord Henley): My Lords, I will be relatively brief on this. I can give an assurance to the noble Lord that I have discussed this with his noble friend Lord Berkeley. I also welcome him back to this Bill from his travails on the Civil Aviation Bill. This amendment is, in effect, about the remit of the chief inspector. I think that I can give the noble Lord an assurance that this is all largely dealt with by Section 48 of the UK Borders Act 2007. I have a copy of Section 48 and could go through it in some detail but I do not think that the noble Lord or the rest of the Committee would welcome that. I will just say that the remit of the chief inspector is adequately dealt with in that and he can cover all those matters.

As the noble Lord said, I have had a meeting with his noble friend Lord Berkeley at which we discussed a number of issues, particularly the so-called Lille loophole; the problems coming into St Pancras, problems that we are aware are likely to get much worse when other services, such as the German trains, start coming in, just because of the physical layout of St Pancras; and how we deal with that. We also discussed-again, this is very important-the possibility of using immigration officers on the train to deal with the particular problems that the noble Lord quite rightly highlighted. That is something that we will have to look at for the future, beyond 2015, which is when Deutsche Bahn is likely to start bringing trains in.

8.30 pm

The important thing is that I have discussed this with his noble friend, I will continue to discuss it with him in the future and he or his noble friend are welcome to bring this back at Report. We are going slightly wider than the Bill, but I appreciate why the noble Lord, Lord Berkeley, wanted to table the amendment, just to make sure that the concerns about immigration on the railways, at St Pancras and elsewhere,

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were addressed. I will continue to discuss these things with the noble Lord, Lord Berkeley, as will my honourable friend Mr Damian Green. We are aware of the concerns, particularly in Olympic year and we hope that we can deal adequately with them.

I end by saying that we occasionally hear stories-tweets from well known actresses about the awful time they had going through Heathrow and we then discover that, actually, that particular well known actress was whisked through by the British Airports Authority in three minutes. Not all the stories one hears, not all the tweets, are quite as accurate as they might be. I will not name the actress involved but noble Lords will know who I am talking about. We are aware of concerns; we are trying to make sure that all individuals come through at an appropriate speed, while maintaining proper security. I hope that those assurances are sufficient for the noble Lord and that he does not want me to go through Section 48 of the UK Borders Act 2007 in detail. I am more than happy to do so at some later stage if he so wishes.

Lord Rosser: I will be brief. I thank the Minister for his reply which I am sure will be read by my noble friend Lord Berkeley with interest and I beg leave to withdraw the amendment.

Amendment 149D withdrawn.

Amendment 150

Moved by Lord Henley

150: Clause 26, page 25, line 23, at end insert ", or

(c) in connection with the prevention, investigation or prosecution of any of the following offences (insofar as that does not involve the exercise of a function which falls within paragraph (a) or (b))-

(i) an offence under section 26(1)(a), (b) or (g) of the Immigration Act 1971 (refusal or failure to submit to examination or to furnish information etc, or obstruction of immigration officer);

(ii) an offence under section 22 of the UK Borders Act 2007 (assaulting an immigration officer)."

Lord Henley: My Lords, I shall also speak to Amendments 151 to 154. I have written to the noble Baroness, Lady Smith, but I shall explain briefly to the Committee what the amendments do. They are essentially technical and drafting changes to provisions in Clause 26 and Schedule 14.

Amendments 150, 151 and 152 better define what is meant by an immigration offence within the context of Sections 136 to 139 of the Criminal Justice and Public Order Act 1994 and the Criminal Law (Consolidation) (Scotland) Act 1995, with which I am sure all noble Lords will be very familiar. The former allows immigration officers to exercise cross-border powers relating to warrants, arrest and search. The latter establishes a power of detention and arrest for immigration and nationality offences in Scotland. The amendments expand on the original wording which might, if given a narrow construction, have been read to limit the powers of immigration officers to dealing only with foreign nationals entering, residing in or transiting the UK. It is intended to encompass immigration enforcement

4 July 2012 : Column 763

offences, comprising offences of assaulting or obstructing an immigration officer, or failing to submit to, or produce documents requested during, an examination.

Amendment 154 relates to the provision of legal advice. Among other things, Clause 26 and Schedule 14 ensure that those detained on suspicion of having committed an immigration or nationality offence in Scotland are automatically eligible for publicly funded legal advice. However, as a corollary to this, a duty needs to be placed on the Scottish Legal Aid Board to ensure the availability of solicitors to provide such advice. The amendment makes the necessary change to the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 to provide for this.

Amendment 153 simply corrects a drafting error in Clause 26(13). I beg to move.

Amendment 150 agreed.

Amendments 151 to 153

Moved by Lord Henley

151: Clause 26, page 26, line 8, after "offence" insert "or immigration enforcement offence"

152: Clause 26, page 26, line 26, at end insert-

""immigration enforcement offence" means any of the following offences (insofar as they are not immigration or nationality offences)-

(a) an offence under section 26(1)(a), (b) or (g) of the Immigration Act 1971 (refusal or failure to submit to examination or to furnish information etc, or obstruction of immigration officer);

(b) an offence under section 22 of the UK Borders Act 2007 (assaulting an immigration officer);"

153: Clause 26, page 26, line 44, leave out "officers of Revenue and Customs" and insert "immigration officers"

Amendments 151 to 153 agreed.

Amendment 153A not moved.

Clause 26, as amended, agreed.

Schedule 14 : Powers of immigration officers: further provision

Amendment 153B not moved.

Amendment 154

Moved by Lord Henley

154: Schedule 14, page 219, line 9, at end insert-

"(4) Regulation 3(1)(b) of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 (duty solicitors: advice for suspects) applies in relation to a person to whom section 25A of the 1995 Act applies by virtue of its amendment by paragraph 46 of this Schedule; and, accordingly, in regulation 3(1)(b), after "customs" insert ", immigration and nationality".

(5) But regulation 3(1)(b) does not have effect in relation to such a person in a case where-

(a) the person is detained under section 24 of the 1995 Act, and the period of detention began before the time at which paragraph 46 of this Schedule comes into force;

4 July 2012 : Column 764

(b) the person attends as mentioned in section 25A(1)(d) of the 1995 Act, and the period of attendance began before that time; or

(c) the person is arrested and detained as mentioned in section 25A(1)(e) of that Act, and the arrest occurred before that time.

(6) Sub-paragraph (4) does not affect the application of regulation 3(1)(b) in relation to a person to whom section 25A of the 1995 Act applies otherwise than by virtue of its amendment by paragraph 47 of this Schedule.

(7) Sub-paragraphs (4) to (6) do not prevent regulation 3(1)(b) from being amended or revoked by exercise of any power conferred by the Legal Aid (Scotland) Act 1986 or any other power.

(8) In this paragraph "1995 Act" means the Criminal Law (Consolidation) (Scotland) Act 1995."

Amendment 154 agreed.

Schedule 14, as amended, agreed.

Clause 27 : Drugs and driving

Amendment 154ZA

Moved by Baroness Hamwee

154ZA: Clause 27, page 27, line 18, leave out "controlled"

Baroness Hamwee: My Lords, perhaps I may move Amendment 154ZA. I imagine that the noble Baroness, Lady Meacher, is somewhere on the estate panicking at this moment, but I am happy to move Amendment 154ZA and later she will be able to speak to her own amendment, which we discussed this morning. What I had to say on this group of amendments very much goes to her amendment, which is to leave out the reference to "controlled" drugs.

I do not for a moment condone driving while impaired by drugs-that is what Section 4 of the 1988 Act deals with. I should say that I am speaking for myself. I do not want to put words into the mouth of the noble Baroness, Lady Meacher, but I am apprehensive about legislation which may not be necessary, may not be sufficiently clear, may require technical tools which are not available and may cause more problems than it solves. If my fears are justified I think that the provision does not do justice to the victims of drug-driving and their families.

No doubt the Minister will give us information about the current level of prosecutions for driving under the influence of drugs, the success rate of the prosecutions and the reliability of the testing equipment. Reliability is not the whole of the issue, but is the technology and the equipment adequate? I understand, for instance, that oral swabs to detect drugs are affected by an outdoor setting. I ask this because, of course, errors can lead to unnecessary detentions, to legal challenge and, indeed, to injustice. My amendments largely go to whether the driver's performance is impaired while unfit to drive through drugs, as Section 4 says-Section 4 is not being repealed-and whether a strict liability offence is appropriate.

There are many very commonly prescribed medicines and over-the-counter medicines which contain patient information in which, in literally small print, there are warnings against driving-I quote from one which I got out of my own bedside drawer-

"if you feel dizzy, tired or sleepy."

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They may refer to dizziness or light-headedness, saying:

"Do not drive if you are affected in any way".

Some of these warnings are given as part of a warning about the effect if taken alongside other medication or alcohol. This suggests to me at least two problems regarding evidence: did the driver feel dizzy, tired, light-headed or whatever, and did the driver take other medicines? If the level is set at zero this will disqualify, for instance, thousands of people taking very common medicines that control, to take just one example, raised blood pressure. It does not mean that you cannot drive but it does not mean that you can, so the patient is left with a decision.

To answer a criticism before it is made: I believe in taking responsibility for oneself, but sometimes the sensible decision can be very difficult to arrive at. It will be very difficult to disprove impairment; presumably, that is why we are presented with strict liability. Under proposed new Section 5A(3)(b), the defence will be "to show" that the defendant took the prescribed,

"drug in accordance with any",

and all "instructions", which presumably means oral as well as written instructions. That seems fairly onerous. I acknowledge that the burden of proof is on the prosecution but there is initially an evidential burden on the defendant under subsection (3) of the proposed new section, which is subject to subsection (4). It all seems to require a lot of investigation and argument.

I have said that the difficulties may be compounded when a patient is taking new medication. Of course, the same may apply if the patient changes medication. Patients with chronic pain who are on a stable dose of a prescription or over-the-counter opioid analgesic may well be over the limit without impairment, while some may be impaired and some not because there is a variable impact on different people. I suggest that it is a fair bet that many of us take, and sometimes rely on, analgesics containing ibuprofen and codeine. They may enable us to drive-actually, they may enable us to drive a debate, given the ergonomic failings of these Benches-by being more in control than one can be if driving in pain. I say that from some experience.

I am quite conscious that parallels can be drawn with people who boast that they can hold their drink, and are quite okay to drive to collect the Sunday papers with an alcohol level that has not quite subsided from the night before, but what all this really amounts to is that prescribed and over-the-counter drugs do not lend themselves to this strict liability offence. There could be unintended consequences, such as the risk of spending a lot of police time on people who do not present a risk on the roads or, indeed, the risk of deterring people from driving who then become dependent on others.

My Amendment 154B proposes consultation with a number of bodies: with the Advisory Council on the Misuse of Drugs, where one is talking about controlled drugs and impairment issues; with the medical profession and pharmaceutical industry, for the reasons that I have mentioned and no doubt others; and indeed with patients. I am not concerned only with prescribed drugs. In the case of controlled drugs, we know that cannabis can be detected a long time after it has been taken and long after the effects have worn off. I do not

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believe that it would assist the cause of road safety if the application of a law such as this brought the law into disrepute. Finally, one can only too easily see that the police might stop a driver because of a suspicion of some small thing being wrong with their car-such as a failed brake light, which the driver may not be aware of-then test the driver and find a trace of a drug. It is not being too alarmist to say that this could become the new stop and search. I beg to move.

8.45 pm

Baroness Meacher: My Lords, I must first apologise to the Minister and to my colleagues and thank the noble Baroness, Lady Hamwee, very much indeed for stepping into the breach. I completely misjudged the pace of your Lordships' progress on the previous amendments.

I shall speak to Amendments 154ZA, 154ZB, 154CA and 154DA. I am encouraged by the fact that, perhaps for the first time, an attempt is being made to form legislation that tries to look across from drugs to alcohol and from alcohol to drugs, and to achieve some sort of reasonable comparison in the response to these drugs in relation to driving. Alcohol is of course one of the most dangerous drugs that people take. I endorse the Government's commitment to try to find a fair and consistent way to control driving under the influence of drugs. This is overdue and important. There is no question that I would suggest that people can drive while under the influence of drugs; that would be inconceivable on my part.

The purpose of my amendments is to ensure that young people are not criminalised unless any drugs in their system really are causing impairment while they are driving. As the noble Baroness, Lady Hamwee, has suggested, there are several reasons why a driver may have a drug in their system but be entirely safe behind the driving wheel. One of my main concerns is that a very substantial minority of young people, as we know, take herbal cannabis. That is a relatively harmless thing to do-I emphasise relatively. It is much better that young people do not take cannabis or drink, or smoke, but we know that the great majority of them will do at least one of those. It is possibly better that they take a bit of herbal cannabis on occasions, so long as they do not do it too often, rather than smoke tobacco or drink alcohol. I must emphasise that skunk is a completely different matter.

I understand that the active ingredient, THC, disappears and has a short life in the body, as the noble Baroness, Lady Hamwee, said, whereas the safe and perhaps even positive ingredients of the cannabinoids, which could improve driving, can remain there for some considerable time-perhaps many weeks. This legislation could lead to the criminalising of considerable numbers of young people who took cannabis at a party several weeks before and are then stopped for some minor reason. Traces are then found in their body of the cannabinoid, which have nothing whatever to do with the quality of their driving. I know that the Minister is perfectly well aware of these problems, and I hope that he will take them into account. I would be grateful for the Minister's assurance to the House on this matter.

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I want to explain my Amendment 154ZA, to leave out the word "controlled" from new Section 5A(1(b) in Clause 27. There are at least two strong arguments for doing this. The distinction between controlled and uncontrolled drugs is not evidence-based. Alcohol and tobacco, as we know, are far more dangerous than some drugs that are controlled under the Misuse of Drugs Act. Any evidence-based legislation-which I understand this is designed to be-should not reference the outdated and discredited Misuse of Drugs Act. I applaud the Minister for insisting that this is road safety legislation; it is not about controlling drugs, it will be evidence-based, and I know that a lot of work is going on behind the scenes to make sure that that is so. However, we do have a problem with cannabis, and we need to hold on to that. In discussing cannabis, I should make it absolutely clear that I support the control of cannabis supply, but I hope that we can reach a point where the method of control-possibly some form of regulation-could be based on the evidence of the relative efficacy of different forms of control.

My second point is that a number of the so-called legal highs, or new psychoactive substances, are the drugs that may prove far more of a risk to drivers. Of course, these are controlled through temporary bans, but as Ministers and everybody else know, as soon as one of these drugs is controlled, the creators of these substances get back into their labs and create some new ones by changing a few molecules, and for a while those substances will be legal. There is, therefore, no rationale for limiting this legislation to controlled drugs, because drugs that are not controlled cause just as many problems, if not more.

I will now turn to Amendment 154ZB, where my objectives are twofold. First, it would ensure that there is a good reason for police involvement, either that the police are responding to a road accident, or that the roadside evidence suggests that the driver is impaired and that this may be due to alcohol or a drug in their system. I understand that as regards any drug where a specified limit within the driver's blood or urine cannot be identified-above which it would be safe to assume impaired driving capacity-these cases will be dealt with under the existing Road Traffic Act. Nevertheless, I would be grateful if the Minister could give the House an assurance that under this legislation a driver will not be charged for driving under the influence of drugs unless there has either been a road traffic accident or there is roadside evidence of impairment, that the driver is not taking prescribed medication, and if the level of the drug in the driver's blood or urine is above the level approved in regulations as presenting no threat to road safety.

I will explain paragraph (c) of Amendment 154ZB. I am concerned that the legislation could cause the inappropriate arrest and charging of patients prescribed medications for chronic pain and other long-term conditions. In particular, patients on a stable dose of opioid and analgesia may-according to Napp Pharmaceuticals-have no impairment of their ability to drive safely compared with other drivers who have taken similar quantities, or perhaps even far less, of that opioid. Apparently, the body simply adjusts to higher and higher levels of opioid, so you could be

4 July 2012 : Column 768

pretty heavily drugged and yet a perfectly safe driver. Therefore, without some way of dealing with these opioid prescriptions and people on those prescriptions, very unwell people who are suffering a lot of pain could be unnecessarily arrested, charged, taken to a police station, put in a cell and left there to wait for a forensic physician to come in and do a full examination, and so on. It would be a huge distress and greatly upsetting, and would also use a lot of police resources. I hope that the Minister can somehow give an assurance to the House that this issue will be very clearly dealt with.

I will quickly turn to amendment 154CA. My concern here is that new Section 5A(9) of Clause 27 appears to respond to the North report recommendation that:

"If ... it should prove beyond scientific reach to set specific levels of deemed impairment, the Government should consider whether a 'zero tolerance' offence should be introduced in relation to"-

a list of controlled drugs. I would be grateful if the Minister could assure the House that a zero-tolerance approach will not be introduced in relation to cannabinoids-because this would be the temptation. It will be difficult to establish this limit for these drugs, because of the longevity of the survival of the cannabinoid in the blood. It would be helpful at this stage if the Minister can give us some assurance of that, and also give some indication, if possible, about the drugs that the Government have in mind for zero-tolerance treatment.

Finally, Amendment 154DA is a consequential amendment, and I will not say anything about that. In conclusion, I hope very much that the Minister will accept the principles behind these amendments-although I fully recognise that I put them together myself, and I am certainly no lawyer. If I brought them back on Report I would undoubtedly wish to change the wording therein.

Baroness Smith of Basildon: My Lords, on this clause the Committee has benefited from the contributions of the noble Baronesses, Lady Hamwee and Lady Meacher. Looking through the clause, I found this issue difficult. It is very easy to identify the problem, and we want to address it and resolve this issue. No one wants to see people driving under the influence, whether of drink or drugs, or in an impaired state or the problems that that can cause, but we have to construct legislation that addresses that issue but at the same time does not penalise unnecessarily strictly or inconvenience those at whom it is not aimed. There is a danger that this legislation could have an impact beyond what is intended. Both noble Baronesses indicated that.

When I looked at this clause, what struck me-and listening to the debate has reinforced that feeling-is that this is work in progress. We fully support what the Minister is trying to achieve. I know that he is not particularly wedded to this wording and would be happy to look at ways of making sure that it achieves its aim. Our amendments are probing amendments, but they deal with significant issues. They provide an opportunity to look at the wider concerns. I was able to let the Minister know of some of my questions, and I apologise that I have others because while I looked at the clause more questions arose-I had more questions

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than answers when looking at it. I would be very happy to have some responses this evening and some in writing so that when we get to Report, we can give this further consideration.

Clause 27 introduces the new offence of drug-driving above a specified limit. It will sit alongside the offence of being unfit to drive while under the influence of drugs in the Road Traffic Act, as has already been mentioned. The difference is that that offence requires proof of impairment to be guilty, but this new offence does not. It relates only to controlled drugs because we specify those drugs in secondary legislation, not in this legislation. The limits for each drug covered by the new offence have to be specified in the regulations. If I understand subsection (9) of the new section, which the noble Baronesses, Lady Meacher and Lady Hamwee, referred to, the limit could be set as low as zero, which creates some difficulties. The BMA stated:

"Drugs have a variable impact upon the measurable skills needed to drive safely, between individuals and at different blood levels".

Yet the Explanatory Notes state:

"For some controlled drugs ... it may not be technically possible to determine a level which impairs most people's driving. This may be, for example, because tolerances vary widely in the population, or because the drug is often taken in conjunction with other drugs and is associated with abuse or risk-taking behaviour".

The Explanatory Notes highlight some of the difficulties in getting this right.

The noble Baronesses spoke about the problem with the zero-tolerance approach-the difficulty of determining the appropriate impairment level risks decoupling the defence from the crime. A blanket ban on certain drugs that can be medicated could also seriously impact the standard of life of people on long-term medication as well as on people's attitudes towards, and their compliance, with the treatment they require should they be prohibited from driving as a result of it. The difficulty is to look beyond the immediate offence to the impact it would have if somebody was worried that they would not be able to drive if they took certain controlled drugs on prescription. They might, therefore, on occasion not take their medication in order to drive.

In relation to medication classified as a controlled substance, as the legislation stands, individuals would be required to prove that they had a medical or dental prescription and that they took the drug in accordance with the doctor's and the manufacturer's or distributor's directions. In reading the Bill, I was unclear about whether individuals who are unable to prove that they have a prescription for their medication would be required to attend a police station or would have a number of days in which to produce that evidence.

The Government have not been able to indicate how they intend to prove whether an individual has taken a drug in accordance with the medical directions-that is subsection (3) of the new section proposed in Clause 27. Would an individual be guilty of an offence if they have deviated, even only slightly, from the instructions? For example, the prescription may say to take the drug every five hours and on that occasion the patient took them within two hours because they had been out and had dinner or had forgotten. If we have

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it in legislation that they have to take the drugs according to the manufacturer's and prescriber's instructions, any deviation from those instructions could be a criminal offence.

9 pm

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