House of Commons

Monday 5th December 2011 Commons Chamber

Monday 5 December 2011

The House met at half-past Two o’clock

Prayers

Monday 5th December 2011 Commons Chamber

[Mr Speaker in the Chair]

Life Sciences

Monday 5th December 2011 Commons Chamber

15:32

[The Secretary of State for Health (Mr Andrew Lansley)]

With permission, Mr Speaker, I would like to make a statement about the strategy for UK life sciences that the Prime Minister is launching this afternoon at a leading life sciences conference. The life sciences industry is one of the most promising areas for growth in the UK economy. It has consistently shown stronger growth than the United Kingdom as a whole, and it accounts for 165,000 UK jobs and totals more than £50 billion in turnover. Pharmaceuticals alone account for more than a quarter of our total industrial research and development spend. Global pharmaceutical sales are predicted to grow by up to 6% a year in the coming years, and in emerging economies medical technology is achieving growth rates of more than 12%. A flourishing life sciences sector is essential if we want to build a more outward-looking, export-driven economy. The partnership between industry, the NHS and our outstanding universities is not just essential to economic growth; it will benefit millions of future and current NHS patients, fuelling the more rapid development of cutting-edge treatments and earlier access to those treatments for NHS patients.

Like many industries, the life sciences industry is undergoing rapid change. The old “big pharma” model of having thousands of highly-paid researchers working on a pipeline of blockbuster drugs is declining. A new model has emerged—one that is more about collaboration, the outsourcing of research and early clinical trials on patients. Excessive regulation can mean that the uptake of new treatments and technology is slow. That is a challenge felt acutely by an industry that sometimes feels that the return is not there quickly enough to satisfy investors. It is felt even more acutely by patients, who understandably expect that they should be able to access the latest and most effective treatments, and that new innovations in care should be adopted rapidly by the NHS.

We have a leading science base, four of the world’s top 10 universities and a national health service that is uniquely capable of understanding population health characteristics, but those strengths alone are not enough to keep pace with what is happening. We must radically change the way we innovate and the way we collaborate.

The life sciences strategy we launch today, alongside the NHS chief executive’s review on innovation, health and wealth, sets out how we will support closer collaboration between the NHS, industry and our universities, driving growth in the economy and improvements in the NHS. All the documents have been placed in the Library.

Among other key measures, we will set up a new programme between the Medical Research Council and the Technology Strategy Board to bring medical discoveries closer to commercialisation and use in the NHS. There are many medical products being developed to treat patients and the cost of developing them is high because they take a long time to develop and test. Investors want to see at least some evidence that the products might work in people and robust validation of the quality of the research and development work being undertaken, as well as of the capability of the company to bring the product to market, before they will finance the development of the products. That means that some of the best medical innovations are not making it through to patients. We are already providing investment to address that, but we believe that we can do more to support the development of these products across funding organisations and the successive stages of product development, which will support the development of promising innovations and help to increase the number of treatments made available to patients. We are therefore introducing a £180 million catalyst fund for the most promising medical treatments.

It can take more than 20 years from the first discovery of a drug until patients can be prescribed it by their doctor and we have already taken steps to address that. Through the National Institute for Health Research, we are investing £800 million in new research centres and two major translational research partnerships that will help cut the time between the development of new treatments and their application in the NHS—from the bench to the bedside.

Now, we are going further. As part of a major drive to improve innovation and access to medicines in the NHS, we are announcing proposals on a new early access scheme that could allow thousands of the most seriously ill patients to access new cutting-edge drugs up to a year earlier than they can now. Through the early access scheme, the medicines regulator, the Medicines and Healthcare products Regulatory Agency, would provide a scientific opinion on the emerging benefits and risks of very promising new drugs to treat patients with life-threatening or debilitating conditions for whom there are no satisfactory treatment options. That will mean that seriously ill patients of any age who have no other hope of being treated or having their life extended could benefit from drugs more quickly, around a year before they are licensed.

We must also ensure that we make better use of our unique NHS data capability. It is often said that the NHS is data-rich but information-poor. As a national health service, it contains more data about health than any other comparable health system in the world, but neither the NHS nor scientists developing new drugs and treatments have always been able consistently to make good use of the data or to use them to drive further scientific breakthroughs.

We have seen how powerful the release of data can be. For example, South London and Maudsley NHS Trust and the Institute of Psychiatry now have access to a database covering 250,000 patients. It includes their brain scans, medical records and notes—a wealth of information, all consented to and all anonymised, that is helping them find new answers in the fight against dementia.

We need powerful data-handling capacity and the skills to write the software to mine them. That is why we are investing in e-infrastructure, which will provide secure data services to researchers. The clinical practice research datalink is being introduced by the MHRA in partnership with the NIHR and will provide a specialised service to the research and life sciences communities. Let me reassure the House that we will take all necessary steps to ensure safeguards for patient confidentiality.

We will also make sure that more UK patients get the opportunity to take part in national and international clinical trials and play a much greater role in the development of cutting-edge treatments. We believe that patients should have the right to access new treatments and be involved in research to develop new medicines.

We have responded to calls from research charities and clinicians for Government to get patients more involved in supporting research. A recent Ipsos MORI poll in June found that 97% of people believed it is important that the NHS should support research into new treatments and, in addition, 72% would like to be offered opportunities to be involved in research trials. We will therefore consult on changing the NHS constitution so that there is an assumption, with the ability to opt out, that data collected during a patient’s care by the NHS may be used for approved research.

That would make it clear that researchers and companies with new and potentially life-saving medicines could access the data of patients and could approach patients whom they feel could benefit in order to discuss their involvement in research studies. This would encourage growth in the life sciences industry as more people and more detailed data would be available for the important trials and research needed to get breakthrough treatments used more widely.

Additionally, we have set out actions to improve incentives for investment in innovation and to reduce regulatory bureaucracy. With the creation of the Health Research Authority, we will streamline regulation and improve the cost-effectiveness of clinical trials. As the NHS chief executive’s review of innovation has shown, the NHS needs to be quicker and smarter in adopting new technologies and approaches to care that can both save more lives and cut costs.

Sometimes, it is a question of evidence. Until recently, we could not say with certainty that telehealth could keep people out of hospital and save lives, and there was understandable reluctance among parts of the NHS and councils to invest in untried technology. However, as early results from the whole system demonstrator pilots show, the potential of telehealth is nothing short of remarkable, with dramatic reductions in mortality, in hospital admissions, in emergency visits and in the number of hospital bed days. To make the most of this, we will support the NHS and work in partnership with industry and councils dramatically to spread the use of telehealth over the next five years. In doing so, we are looking to transform the lives of 3 million people in this country.

We will become a global leader in the management of chronic and long-term conditions, generating massive opportunities for UK companies developing this technology. It will be innovation in practice and we will foster other proven innovations such as fluid management technology techniques that were developed for use in high-risk surgery and critical care to help clinicians administer fluids and drugs safely. In March 2011, the National Institute for Health and Clinical Excellence published guidance recommending that this technology should be used for patients undergoing major or high-risk surgery. Currently, it is used for fewer than 5% of applicable patients despite evidence showing that it could benefit 800,000 patients and save the NHS £400 million. We will launch a national drive to make sure that fluid management technology is used in appropriate settings across the NHS. That is one example of many.

The innovation review sets out how we will address all the barriers to innovation in the NHS, whether they involve culture, leadership, training, use of information or lack of incentives and investment. We will also introduce a NICE compliance regime that will mean that medicines approved by NICE will be available on the NHS much more quickly. The plans set out in today’s strategies will help to drive the development of new technologies to diagnose and treat the most complex diseases in this country for the benefit of NHS patients. This is a strong package of measures that will support economic growth and innovation in the NHS and will drive significant improvements in patient care. I commend this statement to the House.

[Andy Burnham (Leigh) (Lab)]

May I thank the right hon. Gentleman for his statement and start by setting out two points of common ground with the Government? First, we too have pride in Britain’s life sciences industry and its strength. We agree that the industry needs Government support and focus if its potential to contribute to the country’s industrial future is to be maximised. Secondly, we agree that there are huge potential benefits to British patients from closer collaboration between the NHS and the industry. We all want patients to have the quickest possible access to the latest life-saving and life-enhancing treatments.

It was for those two principal reasons that Labour, when in government, prioritised the life sciences sector and established the Office for Life Sciences. In Lord Drayson, we created a life sciences Minister who was a contact point for the industry—someone of huge experience and with real personal commitment to the industry. One of our criticisms of this Government is that they have allowed the momentum that Labour had established in promoting the industry to fall away. Progress has stalled because of the Government’s failure to understand that economic growth needs a proper partnership between the public and private sector and because of the combined effect of a number of their policies. Such policies include: damaging 15% real-terms cuts to the science budget; the loss of the regional developments agencies, many of which were heavily involved in this area; cuts to regional investment; and the destabilising effect of the unnecessary reorganisation of the NHS, particularly the disintegration of the strategic health authorities, which played a role in promoting research. The unexpected closure of Pfizer earlier this year exposed a Government asleep at the wheel and was a wake-up call, and now we see a Government playing catch-up.

Although we welcome their belated recognition of the importance of the sector, there are sensitive issues involved and Ministers need to tread carefully so as not to undermine public trust. What they are fond of calling red tape are, to others, essential safeguards. Some areas will always need proper regulation and the use of patient data is most certainly one of them. As we have heard from patients groups today, some have been caused real anxiety by this media-briefed statement from the Government and the lack of accompanying detail.

Ministers need to be aware that people with terminal illnesses and long-term conditions will react differently from others to a statement of this kind, so for them we seek direct assurances today from the Secretary of State that he failed to give in his statement. Will all patients have the ability to opt out of the sharing of their data, even in anonymised form? Surely that fundamental principle of consent should form the bedrock of any new system, and that control of data should be possible in today’s information age. If the Secretary of State cannot give that assurance, why not? How can he justify that?

Did patients’ representatives walk away from the Department of Health working group on these important matters and, if so, why? One representative said on the radio this morning that the whole process “stinks”. Does the Secretary of State not accept that he and his Department will need to do better than this to uphold public confidence in the process or risk undermining trust in the whole principle? What safeguards will there be to ensure that patient data are stored securely? Does he not need to articulate a more positive statement of patients’ rights in this important area, rather than the loose opt-out he proposes in the NHS constitution?

Is it the case that the anonymity of data cannot always be guaranteed? If so, what are those circumstances and, again, why not? Even within anonymised datasets, particularly dealing with small numbers of very specific conditions, it is possible to identify individual patients. What steps are being taken to guard against those risks? Will the Secretary of State give a categorical assurance that data cannot be used for purposes other than research—passed on to third parties or used by the same company to target people for other products and services?

Today’s announcement also needs to be considered in the context of the Government’s reorganisation of the NHS. Does not a more market-based health system with a greater number of private providers create much greater challenges for the control of data? I had many dealings with senior figures in the pharmaceutical industry in my time as a Minister. They were clear that it was the national structure of the NHS, and the ability to collaborate and share information across a whole health system, that was a huge attraction to the industry and a competitive strength for this country.

Does not the Secretary of State’s Health and Social Care Bill risk turning the NHS into a competitive market, where collaboration is discouraged in an any-qualified-provider free-for-all? So how can he guarantee that that competitive strength will be there in the future and will continue to be used by the pharmaceutical industry? Although he will not admit it today, were not many of the measures he has announced, particularly the expansion of telecare, made possible by the steps that we took to invest and modernise NHS IT?

More broadly, this announcement raises questions about the Government’s policy on the involvement of the private sector in the NHS. The Government need to set out what, if any, limit they see on the involvement of the private sector in the NHS. The Prime Minister has said that he wants the NHS to be a fantastic business. Let me quote from a recent leaked document on NHS commissioning, “Towards Service Excellence”. It says:

“The NHS sector . . . needs to make the transition from statutory function to freestanding enterprise.”

It is no wonder that, on the back of these worrying words, the British Medical Association has adopted a position of outright opposition to the Secretary of State’s Bill. Our worry is that, in their desperation to develop a credible industrial strategy, Ministers seem ready to put large chunks of the NHS up for sale.

Patient data are not the Secretary of State’s to give away. The NHS is not his to sell. The truth is that the Government are running huge risks with patient confidentiality and patient safety by opening up the NHS to the private sector and reorganising at a time of financial stress, but we do not yet know the full scale of those risks.

[Mr Speaker]

Order. I am pretty sure that the shadow Secretary of State is on his last sentence, which is almost certainly a short one.

[Andy Burnham]

It is.

The great irony is this: while Ministers are happy to offer up other people’s data, they continue to withhold the NHS risk register, which shows the risk they are running with our NHS. Is that not why people are increasingly asking what the Secretary of State has to hide?

[Mr Lansley]

I am afraid that the last sentence was not really worth it, Mr Speaker. The right hon. Gentleman, while talking about things that were completely irrelevant to my statement, asked a number of questions. Will patients be able to opt out? Yes. It is clear that they will be able to opt out, as I have said. Are there risks relating to a small number of patients being identified? No. As he should know, and as has been done in relation to the general practice research database, where there are small populations of patients in which it might be possible to indentify individuals, or where a small number of patients have very specific sub-sets of conditions and there is a risk of identification, it is perfectly possible to ensure that that information cannot be accessed through the database. We have made it clear that data would be not only anonymised—in fact, it would be double anonymised—in order to ensure that it cannot be recreated, but viewed in such a way that will make it impossible to identify from the circumstances of the data where the patient comes from.

The right hon. Gentleman asked whether the database must be used for approved research or could be used for other purposes. It must be used for approved research and cannot be used for other purposes. It is not a database that people, whoever they may be, whether from universities or pharmaceutical research companies, can simply access in order to go mining for information; they must do so only through the MHRA and for approved research purposes.

Finally, the right hon. Gentleman asked—frankly, I think it is irrelevant—about the extent of the private sector’s role. Unlike his predecessor, Patricia Hewitt, who was Secretary of State when he was a Health Minister, and who said that she was aiming for 10% or 15% private sector involvement, we are not looking for a specific level of private sector involvement or creating a free market in the NHS. It will continue to be a national health service with the national characteristics that we would expect, funded through taxation and available to all based on need, not ability to pay, and in this context it will continue to be a national NHS. The simple fact that, among other measures in the life sciences strategy, we are able to show how we can bring data sets together, including the general practice database, the hospital episodes statistics, the cancer registries and so on, in order to show the power of data across the whole NHS to support research for new treatments is a complete vindication of the fact that it will be a national health service—that it will change in that respect and that patients will benefit from both the national health service and the research that comes with it.

[Mr David Burrowes (Enfield, Southgate) (Con)]

May I be the first warmly to welcome the Secretary of State’s statement and to make a bid for the catalyst fund for regenerative medicine, which not only offers great hope for the future but is providing life-saving treatment through umbilical cord blood? I refer him to the recommendation the UK stem cell strategic forum made last year for collaboration between universities, hospitals and farming industries to make greater use of the application of cord blood now and in future.

[Mr Lansley]

I am grateful to my hon. Friend and heartily welcome his support for the opportunities in regenerative medicine. I was fortunate enough to meet at the UK Stroke Forum last Thursday, among those exhibiting, a company that is based in England but undertaking trials and research activity in Scotland and is looking precisely at how it can use foetal-derived stem cells for regenerative purposes. The right hon. Member for Leigh (Andy Burnham) talked about Pfizer. In my constituency, it has been one of the companies leading the development of new regenerative medicine techniques. That is clearly one of the areas that this country has tremendous potential in developing. The technology innovation centre for regenerative medicine was announced in the “Plan for Growth” published alongside the Budget earlier this year, and I hope that it will be one of the areas in which we will see those developments.

[Mr Kevin Barron (Rother Valley) (Lab)]

The Health Committee, in its report on the electronic patient record, published in September 2007, stated that the highly detailed data captured had “outstanding” prospects for new and improved research, but it also asked that the best balance be found between

“the opportunity to improve access for research purposes with the ongoing need to safeguard patient privacy”.

Do the Government believe they can get that right, so that we can go ahead and use the enormous amount of data that we have in this country to improve health care for patients not just here, but throughout the world?

[Mr Lansley]

I am glad that the right hon. Gentleman is here and able to ask that question, because he was the Chair of the Health Committee in September 2007, when it stated that the secondary use of data in the NHS was “vital” for the development of the NHS, including for research use. I hope that he is one of those who recognise that what we are setting out in the life sciences strategy—in particular, with the clinical practice research datalink—will enable precisely all those secondary uses for research to be developed.

[Dr Julian Huppert (Cambridge) (LD)]

As the Secretary of State will know well, the Cambridge area is world leading in life sciences, both in academia and in industry. This strategy, and the investment to go with it, is very welcome indeed and will, I am sure, support a lot of activity in Cambridge and in South Cambridgeshire. There is one slightly sour note about private data, however, so I hope that the details will be published of exactly how the steps to which the Secretary of State referred will be taken to protect that, but, on clinical trials and what will happen to regulation, will he implement in full the recommendations of the Academy of Medical Sciences?

[Mr Lansley]

I am grateful to my hon. Friend. He and I share a vigorous and vibrant life sciences sector, and I hope that the strategy that we have announced today will be taken up rapidly in our constituencies. He asks about the Academy of Medical Sciences. Back in the “Plan for Growth” in the Budget, we responded precisely to that point, and on 1 December, as a consequence of the positive response to what the academy said, I brought into effect the Health Research Authority to ensure that we simplify the process of approval for clinical trials. Through the National Institute for Health Research, as we said earlier in the year, we are seeking to arrive at a point where there is a maximum of 70 days for the first recruitment of patients to clinical trials, and that will get us into an internationally competitive position.

[Mr Frank Field (Birkenhead) (Lab)]

May I ask the Secretary of State a further question about the rights of people to opt out of the scheme? Will he extend the right of opt-out for those people who refuse to participate in the scheme to include a refusal of the advantages that come from sharing such information, which will be gained by the generosity of spirit of their fellow citizens who participate?

[Mr Lansley]

I understand the right hon. Gentleman’s point, but the ethical approach is for everyone to have access to the latest and best available treatments through the NHS. That is the principle that we apply, but we should be aware that, although we offer people the right to opt out, we have seen—for example, in relation to the general practice research database, where patients have the equivalent right to opt out, and in two pilots conducted on the proposals that we have announced—that the rate of opt out is 0.1%.

[Dr Sarah Wollaston (Totnes) (Con)]

I warmly welcome the Secretary of State’s statement, as this strategy will reduce the delay between discovery and dispensing and, undoubtedly, bring great benefits to patients and to our pharmaceutical industry, but in return will he ask the industry to go further and publish negative trial data, as well as positive trial data, as a gesture to improve the quality of research data?

[Mr Lansley]

I am grateful to my hon. Friend for that point. The industry has done quite a lot in recent years in publishing more data, including data that do not necessarily support the positive case that it is looking for, because all of us, and especially those working in the field, learn a great deal and, sometimes, as much from clinical trials that produce a negative result as we do from those that produce a positive result. So, I will certainly take her point away, explore it with my colleagues and write to her if we can take further steps in that direction.

[Hywel Williams (Arfon) (PC)]

Are the patient data proposals to be England-only or UK-wide? If so, what is the relationship with projects such as the SAIL—Secure Anonymised Information Linkage—database in Swansea and Biobank? I foresee some ethical problems, as Biobank operates specifically on a voluntary basis with a written, sought-for consent. Does the Secretary of State see that there might be some problems there?

[Mr Lansley]

I am grateful for that question. What we are setting out is hosted by the Medicines and Healthcare products Regulatory Agency, which will be able to link datasets for which it is responsible, which do, in some cases, have a UK basis rather than an England-alone basis.

[John Pugh (Southport) (LD)]

I welcome the statement. The Secretary of State mentions telehealth, which is currently making greater progress in Scotland than in England. Has this anything to do with less structural reform or more strategic leadership?

[Mr Lansley]

My hon. Friend might like to know that while initial and very positive steps were taken in Scotland —for example, in Lanarkshire—we have now undertaken, through the whole system demonstrator pilots, the world’s largest randomised control trial of telehealth technology, and that gives us a strength from which we can develop telehealth systems that is unparalleled anywhere in the world. In so far as there is a capacity to provide telehealth systems and provide for their use across health care systems, I suspect that we shall shortly see England overtake Scotland in that respect. It is a form of competition that I am perfectly happy to be engaged in—and if the Scots can do better than us, then good luck to them. However, we are showing, through these pilots, how we are ready to go at developing something of great benefit to patients.

[Andrew Miller (Ellesmere Port and Neston) (Lab)]

It is good to see that the Secretary of State is now on the same side of the debate as me regarding NO2ID and similar issues. Nevertheless, there is an important issue about ensuring the greatest public buy-in to the issue of data sharing, and careful work is needed on that. May I specifically ask him about the catalyst fund? To what extent is this new money? Can he assure the House that money from patient care is not being transferred into the catalyst fund? Will the Technology Strategy Board be able to control its use, or will it be directed by Government?

[Mr Lansley]

In the first instance, the £180 million to which I referred consists of £90 million from the Medical Research Council, which is new money within its existing budget but not at the expense of any other programmes. The other £90 million is provided by the Treasury to the TSB and is new money. None of this comes out of any NHS resources. The implementation will be led by the Medical Research Council, so to that extent it will not be driven by Government.

[Iain Stewart (Milton Keynes South) (Con)]

Does my right hon. Friend believe that there is a threat that parts of the UK pharmaceutical industry might relocate overseas if this package of reforms does not proceed?

[Mr Lansley]

There is always that risk because, as my hon. Friend entirely knows, international competition is intense, particularly in the pharmaceutical sector. Following the measures that were announced alongside the Budget in the plan for growth, not least the availability of the patent box from April 2013, it is clear from discussions that my right hon. Friends and I have had with many of the boards of leading international pharmaceutical companies that the United Kingdom is now becoming a better location for investment in pharmaceutical activity than used to be the case. Those companies look very positively at the steps we have taken on regulatory activity and clinical trials, at the steps we are taking on promoting innovation through the value-based pricing system, and in particular, understandably, at the tax measures that my right hon. Friend the Chancellor announced, especially on the patent box.

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

The Secretary of State’s statement raises a number of important ethical issues. Will he take a close look at the emerging proposals for a medipark that is close to Wythenshawe hospital and part of Greater Manchester’s airport city enterprise zone? This has tremendous potential to attract investment from global bioscience and pharmaceutical companies, which would make a massive difference in my constituency and way beyond that. Will he look to see what support can be offered?

[Mr Lansley]

I will gladly do so. As the right hon. Gentleman knows, the designation of an academic health science centre in Manchester has supported many developments. We want to go further. In today’s life sciences strategy, we are making it clear that not only do we want to maintain the academic health science centre designation as a world-class designation for comprehensive research centres, but we want to go further and ensure that such centres are used to diffuse and spread innovation across the NHS more effectively. Next spring, we will set out how we will enable academic health science networks to be designated. That will happen during 2012-13. I will happily look at the circumstances in south Manchester and at how this matter will apply there. I hope that partnerships will be forged between the NHS, universities and the private sector of the kind that he and I know will be successful.

[John Howell (Henley) (Con)]

Does my right hon. Friend agree that there is a world of difference between streamlining regulation, to use his phrase, and the picture of the indiscriminate abolishment of regulation that the Opposition tried to create? Such streamlining is essential to cut the time from invention to adoption.

[Mr Lansley]

I am clear, and I know that my hon. Friend agrees, that we must ensure that the regulatory processes are effective and that the medicines that are available in this country are of the necessary quality, safe and effective. However, we must not allow the delays that are inherent in some of these processes to prevent information from being provided on the basis of which clinicians, with the active, informed consent of patients, can access what they regard as potentially effective medicines. In the overall context of patient safety, we do patients a serious disservice if we know that there is a potentially effective medicine available and do not give them the first possible opportunity to access it.

[Julie Hilling (Bolton West) (Lab)]

The Secretary of State says that his proposals reflect his commitment to the national health service. If GPs will be commissioning treatments, how will he ensure that they commission new and more effective treatments that might be more expensive?

[Mr Lansley]

As the hon. Lady will know, the Health and Social Care Bill that is being considered in another place will, for the first time, place a direct legal duty to support innovation on clinical commissioning groups. That will be supported by the process of commissioning from the acute sector, in which the quality increments in the tariff will directly drive innovations in best practice.

[David Rutley (Macclesfield) (Con)]

I welcome the Secretary of State’s statement. These proposals are vital for the competitiveness of life sciences and pharmaceuticals, which are vital for the UK and for the local economy in Macclesfield. Will he tell the House how these steps will reduce the time that is taken to establish clinical trials, which has been a barrier for far too long?

[Mr Lansley]

The principal impact that we are having relates to the National Institute for Health Research, which, through its contracts with the NHS and other partners, is driving the time to the first recruitment of clinical trials down to 70 days. That will get us to a competitive position. We are also working in partnership with the pharmaceutical industry, for example to look at how some of the new stratified medicines will be available. Today, we are entering into partnership with AstraZeneca, which is close to my hon. Friend’s constituency, to understand what specific compounds are likely to be of benefit to some subsets of the population with cancer through the use of targeted new medicines.

[Paul Flynn (Newport West) (Lab)]

As the policy rests on the trust in the regulatory body that was tardy in protecting patients against the adverse side effects of Vioxx and Seroxat, is it not time that we had a fully independent MHRA and not one that is funded entirely by the pharmaceutical industry? As big pharma pays the piper, is it not possible that it will call the tune for its own commercial interests?

[Mr Lansley]

I think that the hon. Gentleman is wrong about that. The MHRA operates, in scientific and expert terms, in an independent fashion. In so far as it is accountable, it is accountable to me as Secretary of State and to this House. It is not accountable to the pharmaceutical industry. If he is proposing a major transfer of costs from the pharmaceutical industry to the taxpayer, I am afraid that I do not agree with him.

[Nick de Bois (Enfield North) (Con)]

I warmly welcome the commitment to telehealth and the expansion of it over the next five years. Does the Secretary of State agree, however, that that represents a step change for patients? Will it be the responsibility of councils and stakeholders to demonstrate the value and benefits of telehealth to their patients, so that there is full buy-in?

[Mr Lansley]

I am grateful to my hon. Friend. The figures from the evaluation of the 6,000 or so patients who have participated in the three pilots in Cornwall, Kent and Newham suggest that if telehealth is appropriately and properly provided, there are benefits. There was a total reduction of 45% in mortality, about 21% in accident and emergency visits, about 15% in planned admissions and bed stays in hospital and about 8% in costs. Those are dramatic benefits, but the most important aspect is the empowerment that telehealth gives patients so that they can be at home and be confident about their care, rather than be prey to rapid crises leading to admission to hospital.

[Mr Dennis Skinner (Bolsover) (Lab)]

Is this whole idea not being driven by the pharmaceutical industry in order to make money? In the real world, when I have been in hospital in these past 10 or 15 years for all sorts of different problems, all of us have relied on the care and attention of the doctors and nurses. There was an increase of about 30,000 doctors and 80,000 nurses, because we put a lot more money in. I did not meet anybody at all who ever said to me, “I’ve just been given some drugs to look after my heart, but I don’t like them and I want something else”. The whole thing is a money-making exercise by the pharmaceutical industry, which has friends in the Tory party. We are supposed to be short of money in this country and in the health service. What we really need is to stop sacking nurses, which will make it a lot better.

[Mr Lansley]

The hon. Gentleman will have to talk to the right hon. Member for Leigh (Andy Burnham), who claimed to be the friend of the pharmaceutical industry. The truth is that we should all be friends of it and support it. Why? Because it has the capacity to bring in new medicines and new treatments that are to the benefit of patients. From my point of view, it is not about the profitability of the pharmaceutical industry, it is about working with those who have the greatest potential to bring investment to this country for economic benefit and, more importantly, to improve benefits for patients. The hon. Gentleman, who has no doubt been the beneficiary of many therapeutic improvements generated by investment in the pharmaceutical industry, should not decry it.

[Mr Skinner]

Yes, but in a free health service, not a privatised health service, which it will be—

[Mr Speaker]

Order. The hon. Gentleman has made his point.

May I say gently to the Secretary of State that we are enjoying the full product of his lucubrations, but I think just a snapshot will do. We can get by with that. [Interruption.] The Minister of State, the right hon. Member for Chelmsford (Mr Burns), can look it up in his dictionary later. That is fine.

[Mike Crockart (Edinburgh West) (LD)]

Key to the strategy announced today is the ability to translate primary research into early adoption and commercial outcomes. Does the Secretary of State agree that Edinburgh’s BioQuarter is uniquely placed to do that, as it already shares a campus with the state-of-the-art royal infirmary of Edinburgh and is hopefully soon to be joined by the excellent sick children’s hospital, providing a base for the commercialisation of the innovative work being carried out by Edinburgh’s universities?

[Mr Lansley]

My hon. Friend makes a very good point, and far be it from me to comment further. He explained very well the benefits associated with investment and developments in Edinburgh and how the universities, the pharmaceutical industry and the NHS are working together there. That is also happening in locations in England, and across the United Kingdom we are providing real opportunities for international investment in biosciences.

[Stuart Andrew (Pudsey) (Con)]

During my time working within the hospice movement, it was my privilege to meet many patients and families. They naturally wanted everything at their disposal that would extend patients’ lives or at the very least make them more comfortable. At times, they would feel frustrated that patients in other countries benefited from drugs before they could, even though they were invented here. What is the Secretary of State doing to try to rectify that problem?

[Mr Lansley]

My hon. Friend makes a very good point from his personal experience. It is precisely because we recognised that patients in Britain were not getting access to the latest cancer medicines as quickly as patients in other countries that we were clear at the election that we would introduce a cancer drugs fund. Since the introduction of the fund in October 2010, more than 7,500 patients have accessed new cancer medicines through it. The early access scheme that I have described will go even a step further in anticipating the successful, efficacious introduction of new medicines in a way that allows patients and clinicians sometimes to access medicines even before the point at which they are licensed.

[Andrew Bridgen (North West Leicestershire) (Con)]

As a graduate in biological sciences, I welcome the Secretary of State’s commitment to life sciences in this country. In my opinion, there has been too much of a disconnect between vital research at universities and in the private sector and the NHS. How will the Secretary of State ensure that the biggest beneficiaries of the release of these valuable data are UK patients and universities, and UK-based companies?

[Mr Lansley]

I would instance two things in that respect, the first of which is the developing collaborations that were started under the academic health science centres and that will be continued through the networks that we want to extend. Those partnerships are specifically designed—£800 million was allocated in August, based on a competition—to enable the translation of discovery into new medicines in this country.

Secondly, the £180 million catalyst fund, which the MRC and Technology Strategy Board will implement, is specifically designed to take those ideas—the MRC says that it has some 360 such potential developments in medicines and treatments—through to the point at which they can be developed. Of course, that will be in this country.

[Mr Philip Hollobone (Kettering) (Con)]

Given that Northamptonshire has one of the most rapidly growing populations of patients in older age of anywhere in the country, I am sure my constituents will welcome the Secretary of State’s commitment that this country will become the global leader in the management of chronic and long-term conditions. We want to realise that praiseworthy ambition, but how far behind the curve are we at the moment?

[Mr Lansley]

The answer to that question varies depending on which conditions one is talking about. When one looks at the OECD “Health at a Glance” data that was published on 23 November, one sees how relatively poor are our mortality outcomes in relation to respiratory and chronic obstructive pulmonary diseases. By contrast, we are slightly better than average in relation to diabetes. However, I have seen for myself how well patients with COPD can manage their conditions at home. For example, they can see their blood oxygen levels day-by-day and have supplies of medicines at home, including steroids. They can therefore anticipate and deal with any exacerbations of their condition so that they do not end up in an ambulance going to hospital late at night.

[Duncan Hames (Chippenham) (LD)]

From earlier access to potentially life-saving medicines through to releasing the power of information in the NHS, there is much to welcome in this statement. Given the importance of techniques such as pseudonymisation, how satisfied is the Secretary of State with the priority afforded to developing the informatics capability of NHS staff?

[Mr Lansley]

My hon. Friend makes an important point, to which I fear I do not have time to respond fully. One thing that I hope we can do as a consequence of abandoning the previous Government’s failed NHS IT structure is empower many individual hospital trusts and general practices once more to develop their own informatics expertise, which will stretch beyond IT infrastructure to the positive uses of data and information for the benefit of patients.

Point of Order

Monday 5th December 2011 Commons Chamber

16:19

[Paul Flynn (Newport West) (Lab)]

On a point of order, Mr Speaker. Great progress has been made, principally as a result of your work, in ensuring that exchanges in this House at question times are briefer and pithier than previously, but there is one area of weakness. May I suggest that it might be a good idea if you organised a seminar for Ministers on the existence, purpose and use of the full stop?

[Mr Speaker]

I appreciate the recommendation of the hon. Gentleman. Self-knowledge would be a starter, and until such exists, I am not sure that the turnout would be quite what I might wish, but we will reflect on the matter, and I am grateful to him, as always.

Backbench Business

Monday 5th December 2011 Commons Chamber

Ministerial Statements

Monday 5th December 2011 Commons Chamber

[Mr Speaker]

It may be for the convenience of the House to know that the Backbench Business Committee recommended that there should be a division of time between the two subjects such that the second debate will start at or around, but certainly not significantly later than, 7 o’clock, and possibly a little earlier.

16:20

[Mr Philip Hollobone (Kettering) (Con)]

I beg to move,

That this House expects Ministers to make all important announcements relating to government policy to Parliament before they are made elsewhere on all occasions when Parliament is sitting; considers that information which forms all or part of such announcements should not be released to the press before such a statement is made to Parliament, as recommended in the First Report from the Procedure Committee, on Ministerial Statements, HC 602; and further considers that hon. Members who believe the protocol has been breached should first report this to the Speaker for his judgment and that in the case of a minor breach the Speaker may take appropriate steps but in more serious or more complex cases he would refer the matter to the Committee on Standards and Privileges for further investigation.

The motion is in my name and that of hon. Friends on both sides of the House, but primarily it is in the name of the Backbench Business Committee. Mr Speaker, the motion is in defence both of your advice to this House on many occasions and of the ministerial code.

On 20 July 2010, the Backbench Business Committee held its first debate on the Floor of the House. It chose ministerial statements as its subject because it is an issue that comes to the very heart of the effectiveness of this Chamber as part of Parliament holding the Executive of our great nation to account. We are probably all in agreement that whenever the House is sitting, Her Majesty’s Government should make announcements of policy first to this House. For those who are not familiar with every word, dot and comma of the 2010 ministerial code, as published by the Cabinet Office, let me remind them of what paragraph 9.1 says:

“When Parliament is in session, the most important announcements of Government policy should be made in the first instance, in Parliament.”

I am happy to report that Back Benchers and Front Benchers alike are unanimously agreed on the importance of those strictures.

[Harriett Baldwin (West Worcestershire) (Con)]

Can my hon. Friend help me out, as a new Member? When he says “in session”, does he mean after Prayers, or is he referring to the period of Parliament when there is a 24-hour news cycle?

[Mr Hollobone]

That is a very good question. We will probably discuss that very point during the course of this debate. In my own humble opinion, I think that “in session” means when Parliament is sitting—by that I mean sitting days versus non-sitting days. When there is a sitting day, it is my view, and I suspect that of lots of hon. Members, that Her Majesty’s Government should be making announcements to Parliament first. That may require the Government to contain themselves so that they release that information on the Floor of the House in the afternoon rather than on the “Today” programme in the morning.

[Mr Greg Knight (East Yorkshire) (Con)]

Will my hon. Friend accept from me that Governments in the past have always taken the phrase to mean when the House is not in recess?

[Mr Hollobone]

My right hon. Friend, whose reputation precedes him in so many ways, sums it up neatly in a pithy turn of phrase, which I was unable to do myself.

[Dr Julian Lewis (New Forest East) (Con)]

Does my hon. Friend agree that it is particularly important for this Government to abide by the conventions that he has described, given that both he and I, having served in previous Parliaments, can remember countless occasions when we and our fellow Members of the parliamentary Conservative party stood to make points of order to remonstrate about the fact that Labour Ministers had continually broken these conventions?

[Mr Hollobone]

I do agree, although I am desperately trying to make my speech as non-partisan as possible because I believe that both major parties are to blame: when they have been in government, they have not behaved as they should.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

The hon. Gentleman refers to “both major parties”, so perhaps he is not aware that some of the worst incidents in recent months have involved people such as the Secretary of State for Energy and Climate Change, whose statements have been tweeted to The Guardian.

[Mr Hollobone]

That is a helpful intervention—I shall refer my remarks to all three major parties, if that is better.

All Governments, whether this Government, the previous Government or the one before that, have leaked information, and that is not how our great House of Commons ought to be treated.

[Mr Robert Syms (Poole) (Con)]

Can my hon. Friend name me any Government who have not leaked information to the press?

[Mr Hollobone]

No, I cannot. This increasingly has become standard practice, but it is fair to say that it has got worse over the past five, 10 or 15 years. I am sure, however, that it was prevalent before.

Today, we have a golden opportunity that is, in many ways, unique: for the first time, thanks to the Leader of the House and other Ministers of the Crown, we have the Backbench Business Committee, which has been able to bring this motion to the Floor of the House for resolution tonight. Although hon. Members in past decades will have been frustrated by how the Government of the day leaked information, this is the first time that the House has had the opportunity to do something about it.

[Stephen Mosley (City of Chester) (Con)]

I might be slightly naive but although there may be incidents of Governments leaking information, there are probably an awful lot more incidents of information being leaked without Ministers’ knowledge. We have to distinguish between deliberate leaking and the response to a leak that could be sensitive and might require a Minister to go to the press, on the radio or in front of the television cameras before making a statement to Parliament.

[Mr Hollobone]

My hon. Friend makes a good point but at the end of the day we have something called “ministerial responsibility” and the ministerial code.

Tonight’s motion allows us to draw a line in the sand. I am not naive enough to believe that it will stop all Government leaking completely, but were we to pass the motion, it would be an effective weapon in the House’s armoury against an over-mighty Executive. I want to praise the work of the Procedure Committee, led by my right hon. Friend the Member for East Yorkshire (Mr Knight), which, after our debate on 20 July 2010, worked extremely hard on this issue and produced an excellent report and a series of first-class recommendations. Every word in the motion comes from the recommendations in that excellent report.

I shall quote from the summary of the Committee’s report—its first of the Session—which sums up the issue extremely well:

“Parliament should be at the centre of national debate. Too often details of important government statements appear in the press before they are made to Parliament. Such leaks adversely affect the ability of Members of Parliament to scrutinise the Government on behalf of their constituents. At present, it is the Ministerial Code that sets out the requirement that important announcements be made to Parliament first. However, the Ministerial Code is enforced by the Prime Minister and not by Parliament. We do not believe that it is acceptable for the Government to regulate itself in this way. The House must be responsible for holding Ministers to account when they fail to honour their obligations to Parliament. We therefore propose that the House should have its own protocol which states that the most important government announcements must be made to Parliament before they are made elsewhere.”

The Committee goes on to recommend:

“Such a protocol must be enforced if it is to be effective. We recommend that complaints by Members that the protocol has been breached should be made to the Speaker. Where a case is not clear-cut, or when the alleged leak is particularly serious, the Speaker should be able to refer the matter to the Committee on Standards and Privileges for an in-depth investigation.”

I agree with every word of the Procedure Committee’s recommendations, which sum up the issue extremely well.

Mr Speaker, on your first election to your high office, you said that

“when Ministers have key policy statements to make, the House must be the first to hear them, and they should not be released beforehand.”—[Official Report, 24 June 2009; Vol. 494, c. 797.]

You could not, Sir, have been clearer. I commend you on the large number of urgent questions that you have accepted, tabled by Back Benchers and Front Benchers alike, holding the Government to account when they have not properly released information to this House first. However, it was your predecessor, Betty Boothroyd—Speaker Boothroyd, as she then was—who said in her farewell address:

“This is the chief forum of the nation—today, tomorrow and, I hope, for ever.”—[Official Report, 26 July 2000; Vol. 354, c. 1114.]

This is our chance to say: are we going to hold Her Majesty’s Government to account for the principle, which they uphold in their own ministerial code, that it is this Chamber, where the elected representatives of the British people are gathered together, that should be the first place to hear of major new Government policy initiatives? Should it be “The Andrew Marr Show” on Sunday, the “Today” programme on Radio 4 in the morning or ITV’s “Daybreak”; or should it be the Chamber of the House of Commons? Would it not be wonderful to see the Public Gallery full of journalists eagerly anticipating the Government’s latest policy announcement, made here first, on the Floor of the House? Instead of which, under this coalition Government, the bad practices of the Blair Government and the Government before them are being increasingly enhanced, such that hon. Members are often the last to hear of new Government policy initiatives, not the first. When our constituents contact us to ask, “What’s the Government initiative on this?”, we are often the last to know, so we cannot respond.

However, it would also be an effective tool against the over-mighty arm of the Executive if the ordinary representatives of the people—not unelected and unaccountable journalists, hard working and well intentioned as they may be, but we the people gathered here in this tremendously prestigious place—were the first to have a go at putting questions to the Ministers of the Crown. We have the honour to represent our constituents. We can use this opportunity tonight, by passing this simple motion, to say to the Government: “Uphold your own ministerial code and let the people’s representatives know first whenever any new major Government policy announcement is made.”

16:33

[Chris Bryant (Rhondda) (Lab)]

I warmly commend the hon. Member for Kettering (Mr Hollobone) not only on the motion, but on the work that he has done on this issue since he was first elected. There are many others who count among the saints on these issues; there are also many who count among the non-saints. Contrary to what was said by the hon. Member for City of Chester (Stephen Mosley), who is sitting next to him, the truth of the matter is that, in practice, many Ministers, and in particular their special advisers and those organising “the grid” at No. 10 Downing street, spend a great deal of time deciding when it is best to announce something. If it is unremittingly good news, they do it in Parliament; if it is unremittingly bad news, they try to hide it in a written ministerial statement to Parliament; and if it is a bit streaky—a bit of good, a bit of bad—they will do it outside Parliament, before the House has sat, so that the difficult bits are forgotten and they can get away with the good briefing that they have organised.

[Stephen Mosley]

Is the hon. Gentleman speaking from experience?

[Chris Bryant]

I had thought that the hon. Gentleman would say that, but I must confess that when I was a Minister, I was never in charge of anything that was interesting enough for anyone to make any announcements about it. I suspect that even if I had wanted to make an announcement, I should have been in difficulty.

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

The hon. Gentleman was Minister for Europe.

[Chris Bryant]

That is true, and the Europe directorate of the Foreign Office is punctilious in ensuring that announcements are made to the European Scrutiny Committee first. Indeed, many matters go to the Committee with several months of warning before they become public anywhere else in Europe, and I think that is right. However, when I was Deputy Leader of the House I tried my level best, as did many others in Government, to make sure that we adopted such a process.

[Dr Julian Lewis]

rose—

[Chris Bryant]

I hope that the hon. Member for New Forest East (Dr Lewis) agrees with that.

[Dr Lewis]

I certainly do. I should have thought that most people would feel that the later any news about Europe was released, the better. However, what I want to ask the hon. Gentleman is this: what does he think that the newspapers offer Ministers as a reward for letting them have the news early?

[Chris Bryant]

Oh, Lord! I think that I have spoken enough about newspapers in the last year not to opine on that now, but obviously the aim is to manage the news in such a way as to ensure that there is as little scrutiny as possible. However, I can say on the basis of my limited experience as a Minister that on the few occasions when we did make statements to the House, the quality of questioning in the Chamber—which was sometimes haphazard, but was often extremely to the point—improved the quality of decisions and the way in which they were eventually transacted, and I therefore do not believe that Governments have any reason to run away from this proposal.

I think that the position has worsened in recent years with the advent of 24-hour news. There is an insatiable beast that needs to be fed all the time, and extra diligence is required on the part of Ministers and Government to ensure that they do not succumb to it.

The hon. Member for West Worcestershire (Harriett Baldwin) asked what was meant by the House being in session, but the truth is that nearly every decision made by Government is not time-sensitive. Most decisions can be made at any time, and it is therefore always possible for Ministers to wait until Parliament is in session. When I was Deputy Leader of the House, one of the things that I tried hard to curtail was the number of written ministerial statements made on the last day before a parliamentary recess, because a large number of such statements makes it virtually impossible for you, Mr Speaker, to intervene by allowing an urgent question, or for the House to allow any proper scrutiny before Parliament sits again.

[Mr David Nuttall (Bury North) (Con)]

Might not one reason for the apparent increase in the number of Ministers who breach the code in recent years be the fact that Ministers see that there is no real sanction?

[Chris Bryant]

On the whole, if there is impunity, people tend to continue the criminality.

[Harriett Baldwin]

Is not another problem the fact that our sittings start so late on Mondays and Tuesdays? Does the hon. Gentleman agree that we should review our sitting times?

[Chris Bryant]

I was so desirous of a moment when I could agree 100% with the hon. Lady, and now she has produced that moment. Yes, I do agree with her: I think that is an essential part of what we need to do. I noted that our sitting last Tuesday, the day of the autumn statement, began in the morning rather than the afternoon. I suspect that that was largely so that the media could be given more time in which to prepare material for the 6 pm and 10 pm news broadcasts.

[Several hon. Members]

rose—

[Chris Bryant]

Half the Members on the Government Benches are trying to intervene.

[Sir Peter Bottomley (Worthing West) (Con)]

The hon. Gentleman clearly supports the motion. May I raise a slightly tricky issue? The Speaker has a role in what happens in the House. Are we in danger of putting him in charge of what people say outside the House unnecessarily, and does that pose the risk of his being not tempted to become, but drawn by his job into becoming, more of a player and less of a referee?

[Chris Bryant]

I think that the motion raises a bigger issue relating to you, Mr Speaker, but I shall deal with that later if I may.

[Sir Paul Beresford (Mole Valley) (Con)]

The hon. Gentleman said that announcements were not time-sensitive, but they may be time-appropriate; in fact they may be regionally appropriate. I am thinking of local government announcements. It would be much more appropriate to make those at a certain time, and outside the House.

[Chris Bryant]

I think that those occasions are very rare. On very rare occasions, something is market-sensitive, for example, in which case there is an argument for Treasury Ministers to be able to exercise that judgment, but it is a rare occurrence. Labour Members are always mindful of Hugh Dalton, when he was Chancellor of the Exchequer, managing, before the Evening Standard came out, to leak a couple of elements of the Budget, although not deliberately—I think it was accidental. He ended up losing his job as Chancellor of the Exchequer because of that. Therefore, I do not want to create a rule for Ministers whereby, when they think that an announcement is time-appropriate, they can use whatever device they want.

[Mr James Gray (North Wiltshire) (Con)]

I was reflecting on the hon. Gentleman’s exchange with my hon. Friend the Member for West Worcestershire (Harriett Baldwin) about whether, if the House sat earlier on a Monday and Tuesday, that would reduce the incidence of Ministers leaking information. Does he believe that, when the House sat earlier for the autumn statement last week, that meant that the statement was entirely unknown before the Chancellor stood up?

[Chris Bryant]

The only response to that is, “Touché.” By definition, the hon. Gentleman is saying, and I wholeheartedly agree, that large parts of that autumn statement were pre-leaked over the weekend. Although I have my criticisms of what went on when we were in power, may I point out to hon. Members that the last Queen’s Speech was leaked? I do not think that that has ever happened before. Although you, Mr Speaker, investigated what happened—you can investigate what happens here—the Prime Minister, as far as I am aware, made no investigation into how that happened. That is a gross discourtesy to the House. In addition, figures from last year’s Budget were leaked. There is a danger that people have learned the lessons of our Government in the wrong way and are now exercising their powers incorrectly.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

In this particular respect, I think that the hon. Gentleman is doing a disservice to the Government of whom he was a member. They decided, under a previous Prime Minister, to make it known what the Government’s main legislative intentions were much earlier than is traditional with the Queen's speech, which was a welcome change.

[Chris Bryant]

Indeed we had a draft legislative programme, which we brought forward six months before the Queen’s speech, but that was presented to Parliament. It was not issued in a press release to the regional media or briefed to Andrew Marr. That is the process that we should adopt.

I want to raise one concern in relation to the motion. It says that, where a Member feels that the code has been broken—the ministerial code, which is written into a motion of the House as well; it is not just the Prime Minister’s ministerial code—the Member should report that to the Speaker, who would make a judgment and could then refer the matter to the Committee on Standards and Privileges. That is not the process that we have for other standards and privileges issues, or matters of privilege. At the moment, we write to you, Mr Speaker, and you decide whether we can have a debate on the matter. At the end of that, either it is decided to refer the matter without a Division, or there is a Division, so it becomes the decision of the House to refer the matter to the Committee on Standards and Privileges; it is not your decision, Mr Speaker. There is a double anxiety here. The proposed process would bring you into deciding whether a Minister should be referred. That process of referral would probably mean that the Minister had to lose his job at that point, such would be the clamour among the press and so on. Equally, if you were to bring the matter to the House, the almost inevitable conclusion, given that Ministers by definition always enjoy a majority in the House, is that the matter would never be referred to the Committee on Standards and Privileges.

[Christopher Pincher (Tamworth) (Con)]

Does the hon. Gentleman agree that protocols introduced for the best possible motives can be taken over and run as political vehicles for the worst possible motives? Not only might Mr Speaker be dragged into a political argument but, heaven forfend, he might be deluged with requests to investigate breaches, which would become just another part of parliamentary graffiti.

[Chris Bryant]

The hon. Gentleman has reiterated my point.

I do not want impunity for Ministers, as that would enable the current situation to continue for ever and a day, and get worse. Scrutiny improves ministerial decisions and government so we must put an end to the current process of impunity. However, I do not want to bring Mr Speaker into the decision-making process. That is why I support the motion.

The motion will not in itself make the required change, however. The Government would have to introduce a motion to change standing orders to bring that change into effect. I hope that in doing so we would arrive at a policy that rendered Government accountable to Parliament and unable to exercise the impunity they have at present without bringing you, Mr Speaker, directly into play.

16:44

[Mr Greg Knight (East Yorkshire) (Con)]

I am delighted to follow the hon. Member for Rhondda (Chris Bryant), who made a number of excellent points. However, it is unfortunate that, in effect, only one Opposition Back Bencher is present for the debate—two if we count the hon. Gentleman, who today is a quasi-Back Bencher.

[Mr Kevin Barron (Rother Valley) (Lab)]

There are three of us, in fact.

[Mr Knight]

I see that the right hon. Member for Rother Valley (Mr Barron) is sitting in the far corner of the Chamber. On Thursday he told me he did not think he could be present for the debate. Perhaps that was why I did not notice him, but I am delighted that he is in his place for this important debate.

As has been said, the Procedure Committee was asked to undertake an inquiry by the House, which unanimously agreed to a motion inviting the Committee to develop a protocol for the release of information by Ministers. This was the first debate scheduled by the Backbench Business Committee last year.

As my hon. Friend the Member for Kettering (Mr Hollobone) has pointed out, the current position is that the ministerial code sets out the “general principle” governing the release of information by Ministers. It states:

“When Parliament is in session”—

as I said in an intervention, that is widely taken to mean when Parliament is not in recess—

“the most important announcements of Government policy should be made in the first instance in Parliament.”

The Procedure Committee published its report earlier this year. It set out three principles underpinning its recommendations: that statements were valued by Back Benchers and that Ministers should be encouraged to make them; that important Government announcements should, indeed, be made to Parliament before they are made elsewhere; and that it is a grave discourtesy to Parliament for information to be released before a statement is made.

The Procedure Committee decided without division that it was neither practical nor desirable to produce a detailed protocol, and recommended that the House agree the following resolution:

“That this House expects Ministers to make all important announcements relating to government policy to Parliament before they are made elsewhere on all occasions when Parliament is sitting, and expects information which forms all or part of such announcements not to be released to the press before such a statement is made to Parliament.”

The Government responded, agreeing with the Committee that a detailed protocol would not be a good idea, but rejecting the solution proposed by the Committee and instead favouring the status quo.

On enforcement, the Procedure Committee recommended that complaints should be made to the Speaker in the first instance, and that the Speaker should have the power to dismiss trivial complaints and complaints made without basis. The Speaker could rule in cases where a minor breach had occurred. One might envisage a case where the Speaker receives a complaint and deems it to be a minor breach, and decides to allow an urgent question in the light of that complaint. The Procedure Committee did not envisage the Speaker rapping knuckles in all circumstances. There may well be cases where the granting of an urgent question is deemed sufficient. We also took the view that more serious cases should be referred by the Speaker to the Standards and Privileges Committee.

In their response, the Government did not even acknowledge our recommendations relating to the role of the Speaker, but they rejected our recommendation that complaints be referred to the Standards and Privileges Committee and maintained that the current range of sanctions was “adequate”. In our earlier debate, a number of Members, in particular the hon. Member for Bassetlaw (John Mann), who is not in his place, discussed what sort of sanctions should be available, over and above what happens now. The Procedure Committee concluded that a recommendation from a Committee of the House that a Minister do come to this House and apologise was a sufficiently serious sanction, and that no new sanctions were required. The Government’s response to that was that our Committee’s recommendations were disproportionately severe, which I find a little odd.

I have looked at the Government’s response in detail, and in my view it is highly unsatisfactory. As I have said, the Government agree with the Procedure Committee that it would not be “practical or desirable” to have a “detailed protocol” trying to cover all eventualities, but they said that they did not support the Committee’s approach that the House should agree a motion in terms very similar to the current position as outlined in the ministerial code. The Government stated:

“It is not clear…what purpose would be served”

by such a motion, in which the current position is simply restated.

The Government had clearly failed to recognise the significance, although it was explained clearly in our report, which was that the House would be taking control of the protocol away from the Government. We are not envisaging setting up double jeopardy; we are saying that it should be the House that should decide—via the process of a complaint going to the Speaker and then, if necessary, to a Committee—whether the protocol had been breached, and not an obviously partial and forgiving Prime Minister, who is currently the arbiter. In saying that, I make no criticism of my right hon. Friend the Prime Minister, because the natural instinct of any Prime Minister will be to want to defend his or her Ministers—after all, the Prime Minister of the day appoints all Ministers in the first place.

[Chris Bryant]

It would sometimes be somewhat hypocritical if a Prime Minister were to complain about a Minister briefing, because often it is Downing street that briefs the policy change, rather than the Minister, doing so with the full knowledge and understanding of the whole ministerial team.

[Mr Knight]

That is a very good intervention and the hon. Gentleman underlines my point.

The Government response went on to suggest that an increase in the number of statements made and urgent questions granted means that

“there is no case for the protocol that the Committee proposes.”

I am not clear what the logic is in that response.

On enforcing the protocol, the Government repeated the assertion made in the oral and written evidence that the Procedure Committee received that the House already has a sufficient range of options to deal with cases in which statements are made outside Parliament first. The Government’s response went on to suggest that the involvement of the Standards and Privileges Committee would risk dragging that Committee into party political disputes, which they say would undermine

“the integrity of its role.”

That response does not acknowledge your role, Mr Speaker, as envisaged by the Procedure Committee, in acting as a “gatekeeper” against frivolous complaints. Under the system that we proposed, any complaint that was a mere cover for a party political row or dispute would be dealt with by you and, in my view, would never reach the Standards and Privileges Committee, which would be asked to determine only serious or complex breaches of the rules

[Mr Edward Leigh (Gainsborough) (Con)]

It is said that this procedure might drag the Speaker into politics, but surely there is one way the Government can ensure that that does not happen, and that is to behave in future.

[Mr Knight]

I agree, and I must say that we are used to Mr Speaker telling us when we are out of line, so it seems to me to be a natural extension of the role of the Chair to act as gatekeeper in this process.

[Sir Paul Beresford]

Of course, the opposite point is that the complainant might be being political.

[Mr Knight]

The complainant might indeed be being political, but if a complaint was made with no grounds, in fact I would expect Mr Speaker to block it. I do not know whether my hon. Friend was suggesting that there would be a difficulty in the process, but I do not particularly think that there would. I have every confidence that the occupant of the Chair—whoever it was—would see that justice was done.

The Government made some issue of the fact that the Procedure Committee did not receive any formal evidence from the Parliamentary Commissioner for Standards on this proposal. I am rather baffled by that comment, because the Procedure Committee’s report does not suggest that the Parliamentary Commissioner for Standards has any role in the process, so it is not clear why the Government think that we should have received evidence from him.

The Government said that they do not accept the Committee’s recommendation that the penalty for a breach of House protocol would be a recommendation from the Standards and Privileges Committee that the Minister concerned should apologise to the House. Instead, the Government note that there is no evidence that there is a significant problem with Ministers refusing to apologise to the House when a breach occurs. However, that rather misses the point, which is that the Standards and Privileges Committee would have no need to use its powers if there was no problem to be dealt with. If a Minister had already apologised, there would be no need to go there.

It is perhaps also worth reminding those on the Treasury Bench that the Government have repeatedly expressed support for their own protocol and that the Government are saying that they agree with the majority of Members of this House that the House should be told first when there is an announcement of Government policy. It seems to me, therefore, that the serious leaks that occurred last week should also be deplored by those on the Treasury Bench. I hope that the Leader of the House, when he comes to address us, will add his voice to those that have already placed on record a number of concerns about the leaking of large parts of the autumn statement. Many Members wonder why the Chancellor has not apologised.

[Dr Sarah Wollaston (Totnes) (Con)]

My right hon. Friend referred earlier to the discourtesy of leaking to the press, but does he agree that these leaks involve a discourtesy in that they might be given to some hon. Members before others, placing some Members at a disadvantage?

[Mr Knight]

I do indeed, and I believe that that happened last week. For example, the BBC television news in Humberside had the Chancellor’s announcement on the plan to reduce the tolls on the Humber bridge pretty much word for word and ran it 24 hours before the House was told. It seemed rather strange to me that a couple of hon. Members who happened to have seats near the Humber bridge were available on the bridge itself to do media interviews when the leak occurred.

If the Government do not believe what they say about Parliament being told first and want to leak or announce policies or decisions to the press first, they should come out in the open and say so and they should change their ministerial code.

I now turn to the motion before us. Although I think we are all grateful to my hon. Friend the Member for Kettering for bringing this matter before us today, I must say that I would have preferred it had he consulted the Procedure Committee before he settled on the wording of the motion. I understand that the right hon. Member for Rother Valley, to whom I have spoken about this matter and who chairs the Standards and Privileges Committee, was also not consulted on the terms of the motion before it was tabled or the timing. That is unfortunate. I do not want to tell the right hon. Gentleman, who does his own job perfectly well without any intervention from me, what he might or might not want to do, but he might have wanted to take the matter to his Committee and to have shown it the scope of the draft motion before it was brought to the House.

It is a pity that neither of the two Committees that the House has asked to consider these matters was consulted by the signatories to the motion. That is important because we have not yet debated the Procedure Committee’s report in the House, but the motion addresses only some of the issues raised by the Committee in its report on ministerial statements and ignores others. It is a cherry-picking motion and its scope has been determined without any reference to those who have responsibility for looking into this matter, having been asked to do so by the House.

The motion ignores the Procedure Committee’s recommendations on urgent questions and written statements. For example, we believe there are some occasions on which written statements should be open to oral scrutiny. The motion is therefore unsatisfactory and its timing, coming as it does without that consultation having taken place, is unfortunate. I do believe that action on this issue is necessary, as Governments of both political persuasions have been prepared regularly to flout the ministerial code when it suits them by leaking news to the press. However, I also believe that the way this matter has been brought forward today is unfortunate. Rather like the leaks themselves, it is no way to do business.

[Several hon. Members]

rose—

[Mr Deputy Speaker (Mr Nigel Evans)]

Is Mr Kevin Barron not standing?

[Mr Barron]

indicated dissent.

[Mr Deputy Speaker]

Then I call Robert Syms.

17:01

[Mr Robert Syms (Poole) (Con)]

I welcome the chance to debate this issue today because it is important sometimes to debate first principles about what we are for and what we ought to get up to in the House. My hon. Friend the Member for Kettering (Mr Hollobone) criticised the Government for behaving in the same old, bad old ways, but of course this debate would not have occurred under the previous Government or in any of the previous 13 years I have been here. The Government have made reforms and have been rather more open-minded about how the House has proceeded than their predecessors.

My criticism of my hon. Friend is that he is harping back to a mythical golden age when all decisions were made in this House and everyone outside waited for the House to hear a statement. The reality, certainly in my time in the House, is that that has never been the case. It was not the case under Mrs Thatcher or in the 1950s when many Governments—Macmillan’s and others—had Information Ministers in their Cabinets. It certainly was not the case when Winston Churchill, one of our greatest Prime Ministers and a great parliamentarian, was running a Government in very difficult circumstances. He had a lot of mates in the press and things were leaked to them. Neither was it the case when Neville Chamberlain arrived at the airport with his piece of paper. He did not say, “I’ve got to nip back to the Commons and make a statement.” He said, “Peace in our time.” So let us be clear about this—nothing much has changed in the way that Governments have done business ever since the emergence of the popular press.

[Mr Gray]

I am disappointed that my hon. Friend has become some kind of apologist for Ministers who leak things. He might be right to say that it has always happened, although I think the pace has accelerated very sharply in recent years. The purpose of this debate is to discuss not whether this has happened but whether it should happen. Surely what we are saying is, “No, it should not happen. Things should be announced in this House first and Ministers should not go to the media and announce things there first.”

[Mr Syms]

I think we have to live in the real world—a world with 24-hour news. We know that when Governments consult on policies, some of those who do not like those policies decide deliberately to leak information, and Government Ministers are then sometimes called into studios to defend or explain their position. If we have a protocol within the House that makes it difficult for Ministers to explain what the Government’s position is, a lot of our constituents will be worried unnecessarily because, to coin a phrase, a lie can be halfway around the world before the truth gets its boots on. That quite often happens with people maliciously trying to misrepresent Government policy.

[Sir Paul Beresford]

I was tempted to rise because the previous intervention was made by an hon. Friend who was a political adviser to me when I was a local government Minister. He assisted us in deciding whether it was appropriate, with regional issues, to make announcements in the areas to which they related rather than in the House of Commons.

[Mr Syms]

We have to look at the situation realistically. When the Prime Minister goes to the EU to negotiate with other leaders, at the end of that negotiation he stands on a platform next to the Union Jack and the EU flag and announces what has been discussed, what we have agreed with and what we have disagreed with. He sets out how he has been batting for Britain. What we are now saying is that whereas Merkel, Sarkozy or any of the other leaders can put the best face on their negotiation, the British Prime Minister will not be able to do so because he will have to come back here to make a statement, which he does anyway.

[Dr Wollaston]

Clearly, in that instance, Members of this House hear the statement at the same time as members of the press. If leaks are going to take place, which my hon. Friend is justifying, should they also be to Members at the same time?

[Mr Syms]

We all watch the news. I suspect that the vast majority of us are addicts of the 24-hour news channels. I keep being criticised by my wife for switching from channel to channel watching what is on the news, on Bloomberg, on ITV and on Sky. We all watch what goes on. Other Government leaders can stand up and announce what they have negotiated, but we are saying to our Prime Minister, “You can’t do that. You’ve got to whiz back here and give a statement.”

Let me give another example. We have a eurozone crisis. The markets are moving faster than the Governments and the political leaders. What happens when there is a eurozone crisis at the end of business on a non-sitting Friday, and the Chancellor has to make a statement before the markets open on Monday, which is a sitting day? Does he sit in the Chamber till 3.30 pm before he sets out what the Government are going to do, or does he make a statement setting out the Government’s emergency plans before the markets open in Europe and in the UK? If we think it is more important for him to speak to the House, he shuts up and people get plastered in the markets.

The reality is that we want Ministers in whom we have confidence and who speak for the majority of the people in the House. They have to command a majority. The Chancellor would have to come here eventually to answer questions about why he had conducted business in a particular way, but modern markets and modern international negotiation sometimes mean that Ministers make statements in press conferences and for the TV, rather than in the House.

[Jonathan Ashworth (Leicester South) (Lab)]

I have some sympathy with the argument that the hon. Gentleman is making. It is right that we should be realistic about what announcements can be made and when they should be made, but does he accept that the amount of the autumn statement that was leaked was extraordinary? Does he think that is justified?

[Mr Syms]

Certainly, I found that shocking. I have sat in the House since 1997 and I have to say that the present Government leak a lot less than previous Governments in that time, but it does happen. We have to understand that.

Ministers should make more effort. My right hon. Friend the Member for East Yorkshire (Mr Knight), the Chairman of the Procedure Committee, said that we want the Government to make a special effort to come to the House when they can. My point is that in the modern world, with 24-hour news, it is not always possible for them to do that.

[Mr Gray]

I am extremely puzzled by my hon. Friend’s speech. He said a moment ago that Ministers should come here when they can. His position is a great deal more extreme than that of the Government. The Government have said that Ministers will always come here and will always make important statements here. My hon. Friend seems to be suggesting that they should sometimes decide not to do so. I am afraid he is probably on his own in the House today.

[Mr Syms]

My view is perfectly clear. It is not always possible for Ministers to get here. If something happened today in the markets, I would expect Treasury Ministers to make their best efforts to come here, as we are sitting, and talk to us, but that is not always possible.

[Dr Julian Lewis]

I am an exact contemporary of my hon. Friend and it seems to me that, comparing what happened under the previous Government and what happens under this Government, he is absolutely right about the quantity of leaking, which was enormous under the previous Government. The trouble is that the leaking under the present Government is getting more and more specific. I remember, when I complained about leaks by the previous Government, one of the Deputy Speakers saying to me, “Well, it could have been a case of intelligent anticipation by the media of what the Government and the Minister were going to say.” With the sort of leaking that is going on now, there is no question of that. It is straightforward, direct and specific. The logical conclusion of what my hon. Friend is saying is that we should tear up the ministerial code. If he thinks that is the case, he ought to advocate that.

[Mr Syms]

I am not advocating that at all. All I am saying is that sometimes in the real world briefings are needed to set out the context and background of Government policy, because there are many complex political problems, for example in relation to the financial markets or pensions, in relation to which journalists want to know where the Government are coming from. Sometimes journalists speculate or, as we all know, make things up. I know most of my right hon. and hon. Friends on the Treasury Bench, and I know that they do their best to keep the House informed. The House must keep on its toes to ensure that Ministers keep to the ministerial code where they can when they come here, but that is not always possible. I am against having a set protocol, which I do not think would work for the reasons I have set out.

[Pat Glass (North West Durham) (Lab)]

I understand the practicalities of what the hon. Gentleman is saying, but it appears to me, as a relatively new Member, that the vast majority of leaks to the press are on matters that are not desperate, will not cause problems in our markets and about which it would be quite reasonable to expect Ministers to speak to the House first.

[Mr Syms]

Ministers might listen to this debate and improve their conduct in front of the House, but it is easy to criticise their behaviour and bring in a protocol that will make life a lot more difficult for Ministers who are batting for Britain and doing their best in difficult circumstances. We live in a very unsafe and unsure world. Our Prime Minister and others are going to negotiate in Brussels, and our Treasury Ministers are doing their best to keep Britain out of the storm caused by the eurozone. Parliament ought to accept that they are doing their best for Britain and give them more backing.

17:10

[John Hemming (Birmingham, Yardley) (LD)]

I sit on the Procedure Committee and the Backbench Business Committee, so I have looked at this issue for some time. It is a question of the separation of the estates of the constitution. Previously, if an hon. Member’s written question was not answered, their best option was to make a freedom of information request. That was changed in the previous Parliament, and there is now a process for investigating why written questions are not answered by Ministers. We now have a system whereby, in the interests of improving governance and scrutiny and ensuring that what is done for this country is in its best interests, new Government policy on substantial issues is, as a general principle, announced first to the House.

The motion does not try to produce a detailed protocol. In the previous Parliament, a written statement would be made on, for example, the banking crisis, a regulatory news announcement would be made in the morning and an oral statement would be made during the day. That achieved a process of accountability—the Regulatory News Service was used so that all the financial market matters were dealt with and an oral statement was made, enabling Members to hold Ministers to account—and I do not think that anyone would say that there was anything wrong with it.

In deciding whether to support the motion, we must ask whether we should leave things as they stand so that, if Ministers take no notice of the ministerial code and make no effort to ensure that information is given first to Parliament and there is no investigation—a point of order can be raised but nothing further happens —or whether we should we have a process whereby we will not tolerate Ministers doing that. I accept that the Government do not like it because it is inconvenient for them, in the same way as answering questions can be, but in the long term, for the Government parties to be re-elected, we need good government, meaning we—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. The hon. Gentleman appears to be crossing the Floor. I would be extremely grateful if he clarified his position.

[John Hemming]

I apologise for my foot fault, Mr Deputy Speaker. I must apologise for my foot faults on previous occasions, which were not raised with me. I am sorry, but I was unaware that I was breaking protocol, and without being corrected I did not know that I needed to stand a sufficient distance to be two sword lengths from the other side and to toe the line, which I am now doing. That makes my point, because the motion simply states that Ministers should toe the line, which is why hon. Members should back it.

17:15

[Sir Paul Beresford (Mole Valley) (Con)]

I am not the only member of the Standards and Privileges Committee present, but I am probably the only one who is going to speak—and I note a nod from the Chairman, the right hon. Member for Rother Valley (Mr Barron), sitting on the Opposition Benches. I am not going to speak for the Committee, however, because quite simply it has not looked at the proposal at all, or responded to it, but it should, if we proceed any further with the suggestion—or with a report, because after this discussion it might be more appropriate for the Procedure Committee to take the matter back, look at it again and decide whether to change its approach or to submit the issue to the Standards and Privileges Committee.

As a former Minister, I remember the requirements of the ministerial code hanging over me like a heavy weight if I thought I was ever going to step out of line, and also—taking the advice of my hon. Friend the Member for Poole (Mr Syms), who is no longer in his place—decisions on whether it was appropriate. Many such statements are a matter of judgment, and one has to recognise that there are a vast number of statements.

Many statements relate to timing, to regions or, from my experience, to local authorities, and, if a local authority is awaiting a statement, it is appropriate to make it in that area. The thought of what would happen to the House if we were gummed up with every single statement coming out of the Department for Communities and Local Government alone is beyond the imagination.

There are leaks, but one only has to consider a Minister being stuck with a journalist, particularly one from TV or radio, who has come forward with either a leak or an educated—or an uneducated—guess and a question to which the Minister needs to respond to see how someone with a political motivation might take it as a statement that should have been made in the House, even though it might in fact be made in the House later.

It is quite inappropriate not to recognise those difficulties, but, if we follow the Procedure Committee’s suggestion, we will be hitting with a heavy sledgehammer what is generally—albeit with exceptions—a very small nut. My own experience, which is from some time back, was that there was little or no leaking. I do not remember any, but perhaps my memory is slipping.

If such a complaint were sent, through the normal procedures, to the Standards and Privileges Committee, it would first go to the Parliamentary Commissioner for Standards, who is an official of the House. He would consider whether it was appropriate to investigate, but many such complaints would verge on the political, because the decision on the appropriateness of a statement made outside the House, whether substantial or not, is subjective and made by a Minister, with a measure of political judgment, be that with a small or large “p”. So, in effect, the motion asks for an officer of the House, the commissioner, to make a decision on a political issue, which I think would be absolutely inappropriate, as I believe and suspect the commissioner, from my discussions with him on other things, would, too.

Essentially, the Committee looks into complaints that Members have brought the House into disrepute. Decisions, including the Committee’s, are non-political, and the commissioner’s report is non-political. Most complaints fall by the wayside, because many sent to the commissioner—on the way to the Standards and Privileges Committee, if they ever get there—are political, are made by the public and are, quite often, from individuals who have been defeated in an election in a constituency. It is a well known technique, but fortunately it does not progress too far, because many such complaints are political, as many would be on the issue before us.

Ministers have to make a decision on a statement, but, with such rules hanging over a Minister, many statements would not be made outside the House when they should be; they would end up in the Chamber and, as I have already said, clog up the business. [Interruption.] There was an interjection, and, if the hon. Member for Rhondda (Chris Bryant) would like to stand up and interject, I might be able to respond, because I am hard of hearing and did not catch it.

[Chris Bryant]

That argument takes us to the point where we might as well do away with parliamentary government and just have government.

[Sir Paul Beresford]

The hon. Gentleman knows that I, of all people, would not follow that tendency of the previous Government. I absolutely disagree with him, and today’s examples, whether from this Government, the previous Government or the one before, have been of substantial leakages on substantial statements. The majority are not substantial, and we will clog up the business if we bring through all the minor statements, especially the regional or local ones.

We must also remember that we are, in effect, asking the Speaker, who must be non-political, to make a judgment on what will often be a political complaint. The hon. Member for Rhondda (Chris Bryant) was correct to say that it would be inappropriate for it to be referred to the Speaker.

This debate will be helpful for the Standards and Privileges Committee if the matter is brought before it. However, the debate is being held too soon, because the matter will need to go before the Committee if the Procedure Committee decides, in the light of what is said, to go ahead with this technique. The Standards and Privileges Committee will have the opportunity to look at the whole issue again—I hope that it does—to think again, and possibly to look for another procedure to move forward with in the light of the comments that are made today.

17:20

[Gavin Williamson (South Staffordshire) (Con)]

On reading the motion, my initial instinct was to support it, as it seemed intrinsically to be a good idea. However, it has some weaknesses and there are practical issues that we have to consider.

I do not believe that any Minister would ever dream of acting in a dishonourable way by leaking information prior to coming to this House. However, these things can occasionally happen, perhaps through a casual conversation that has been picked up by a journalist and reported at a later stage. More fundamentally, there is the greater issue of the definition of what is important. In my constituency, something that is important to someone in Halfpenny Green, for example, may not be as important to someone in Codsall, Bobbington, Kinver, Featherstone, or many other places. I could come up with a large number of places where it is not as important as it might be in Halfpenny Green. What is the definition of “importance”?

[Chris Bryant]

I think that the hon. Gentleman used a great deal of irony at the beginning of his speech. I have always thought it would be good if Hansard could put comments in italics if they are made ironically. I am sure that he would agree that the Queen’s Speech and the Budget are equally of interest to his constituents in each of the different villages that he mentioned, as in those in my constituency. It is not all that difficult to spot what counts as an important issue.

[Gavin Williamson]

The hon. Gentleman makes a valid point. Yes, there are issues of great importance, such as the Queen’s Speech, Budget statements or the autumn statement. It would be nice if no details ever got out into the media before they got to this House, but the danger is that this motion could sweep up much more.

[Karen Bradley (Staffordshire Moorlands) (Con)]

A post-election Queen’s Speech is presumably based on the winning party’s manifesto, and it would be difficult for that not to be announced in public and announced only in Parliament.

[Gavin Williamson]

Indeed; my hon. Friend makes a valid point. The coalition agreement set out many aspects of what this Government would be bringing forward in the Queen’s Speech and enacting into law. The key is that this is not necessarily about those issues but about the smaller announcements that are often made in this House. What is important and what is not?

[Mr Nuttall]

The Procedure Committee report makes it clear that if a complaint is made by a Member to the Speaker, the Speaker would have the power to dismiss trivial complaints.

[Gavin Williamson]

It would be marvellous if this debate were purely about the Procedure Committee’s report, but it is not—it is about the motion.

[Michael Ellis (Northampton North) (Con)]

Is my hon. Friend concerned that people may deliberately make frivolous or vexatious complaints, even if they have no prospect of being upheld by the Speaker, with a view to establishing negative press stories about the Minister involved?

[Gavin Williamson]

My hon. Friend will be incredibly shocked to hear that there are people in this House who act for political motives and who go about trying to damage right hon. and hon. Members on the Treasury Bench who are trying to deliver the business of the Government. He hits the nail on the head: there would be an awful lot of such complaints, and that is not what we want.

It may be a shock to you, Mr Deputy Speaker but I guarantee that every Member who sits on the Government Front Bench lives in fear of angering or annoying you, and of the displeasure that you might feel towards them, let alone the displeasure that Mr Speaker might feel towards them. I have seen members of the Government quake at the thought that they might be dressed down by the Chair. I cannot think of any greater sanction than that. That is a cast-iron certainty.

What is proposed in the motion does not recognise the realities of today. Often, information has to come out before a statement gets to the Floor of the House because the House does not sit in the early morning. That might be true of a financial statement, world events or wars in different parts of the world. The Government have to respond.

It is vital that Ministers are always duty bound to come to the Floor of the House to respond to such events as quickly as possible. That is why I am so proud of this Government. They have made it clear that it is a top priority for Ministers to be in this House. The relevance of this House is much greater today than it was under the previous Government. One of the first great parliamentary occasions after the Queen’s Speech was when the Prime Minister came to this House to report back on the Bloody Sunday inquiry. It was a moving moment, I think we would all agree, and a moment when the House was united. The Prime Minister summed up the feelings and emotions of this House wonderfully. This Government have made sure that this House matters. The Prime Minister has made more statements to this House than any Prime Minister since 1979, when the great lady, Baroness Thatcher, first came to power. How can we doubt that this Government are putting the right foot forward when they are following in such great footsteps as those of the great lady?

We never need to doubt that it is this Government’s intention to deliver great parliamentary scrutiny and great parliamentary involvement in the decisions of the nation. That is what the Government are doing today and it is what they shall do tomorrow. We do not need this motion. That is why I urge all colleagues to vote against it.

17:27

[Jacob Rees-Mogg (North East Somerset) (Con)]

This debate is the continuation of a debate that has gone on for centuries in another form. In the 18th century, the line was that the influence of the Crown had increased, was increasing and ought to be diminished. It is the perpetual, almost the eternal, job of this House to try to keep the Executive, Her Majesty’s Government, under check.

There is a wonderful picture in this House of the Commons trying to persuade Elizabeth I to marry. Elizabeth I said clearly, “It is not your business to talk about it.” Governments always wish to do that. They wish to maintain information for themselves, to use at their convenience. As a former Lord High Chancellor said, “Knowledge is power”. Governments preserve knowledge carefully. That is not an unreasonable thing for the Government to do from their point of view. However, the ministerial code, as we heard from my hon. Friend the Member for Kettering (Mr Hollobone), says otherwise. It is a splendid document, because its foreword shows the ambition of Her Majesty’s Government and the Prime Minister to restore people’s trust in politics:

“It is our duty to restore their trust. It is not enough simply to make a difference. We must be different.”

I discovered, thanks to listening to “Yesterday in Parliament”, that the previous Government leaked the whole time. Or perhaps, to go back to “Yes Minister”, the approach was “I brief, you leak, he breaks the Official Secrets Act”. There has been a change, and this Government have got rather better at putting Parliament first, coming to the Chamber and telling us what is going on rather than gratuitously leaking every little titbit of information that is available. They have therefore done something to move towards the ministerial code.

However, the ministerial code is a most unsatisfactory document. Although it runs, I think, to some 30 pages, the truth is that Ministers abide by the code as long as they maintain the confidence of the Prime Minister and, as shown by newspapers and other media outlets, of the British people. Those 30 pages are quite a lot of waffle around that main theme, whereas a resolution of the House is something substantial, solid and dignified. It seems to me that things that go on in this House ought to be regulated by the House of Commons, not by the ministerial code.

It is worth bearing in mind that one Deputy Prime Minister could punch an elector on the nose and still not be deemed to have broken the ministerial code in any way. I know that it was secret at that point whereas it is now a public document, but it seems to me that it is flexible in its interpretation. The fundamental point, as I said, is that Ministers must maintain the confidence of the Crown and of Her Majesty, as advised by her Prime Minister. Indeed, the code states that the Prime Minister is foremost within its application and is the judge and jury of it.

That brings us back to the motion, to how we should deal with statements that are leaked and to why statements should not be leaked. That is the rather important question that we have perhaps neglected slightly. With some honourable exceptions, everyone broadly feels that statements ought to be made to the House first, but why? Why does it matter that we hear things before the News of the World, as was, or Sky News or the BBC? The reason is that control of the news agenda gives the Government an extra advantage over the Opposition, over their critics and over those who wish to hold them to account, which they would not be able to afford themselves. That advantage is paid for by public money.

The Government are indivisible but have two parts and two hats. They are party political on the one hand, yet they are the impartial Administration of the nation’s affairs on the other. The Labour party has perhaps two dozen press officers sitting in its current headquarters, but the Government can have two dozen in a single Ministry, able to brief and guide the press. The same is true when the situation is the other way around—the Conservatives have a small number, and the Government still have a massive advantage in controlling the news agenda. They use taxpayers’ money to do that, rather than money given to them through free donations, and they use that power to guide the views of the nation.

Nobody pretends that propaganda is not powerful. We all know it is, otherwise Unilever would not be, as I believe it is, the second largest spender on advertising in the country. I believe the Government are still the largest. Propaganda underlies how all of this works, and it is why the Government are so determined to maintain control of their ability to leak statements when they feel it is right to do so. They feel that if they use that power, they can ensure their electoral popularity and their re-election, at the expense of the British taxpayer. That is when the other, non-political side of the Government has to say, “This is improper. This is wrong. It is all right while we are in office, but we will not be in office for ever. The other side will come in, and they will be more ruthless than we are. They will use this propaganda advantage to ensure their continuation in power.”

The check on that is, and has been for centuries, the House of Commons nit-picking, banging away at the Government and saying, “This isn’t right. We are holding you to account on this. Our electors want to know about this”. It is not about us, or the fact that we are here representing North East Somerset or other, lesser parts of the country. Actually, I cannot say that with my right hon. Friend the Member for East Yorkshire (Mr Knight) here, because I get into trouble if I am not very polite about Yorkshire on all occasions. We are representing our constituents, who wish us to hold the Government to account. Once we are elected, our constituents are not necessarily our political friends and supporters, but we represent every one of them and all their concerns.

I sympathise with the Government. I say that not because I am a loyal hack—I do not think I am the loyalest of loyal hacks—but because I absolutely understand the predicament in which they find themselves.

[Chris Bryant]

The hon. Gentleman referred to the non-political side of things, which I suppose in part means the civil service. One problem is that when we make an accusation—it could be an important one, such as, for instance, that the Government have issued false immigration statistics deliberately four days prior to the real statistics coming out—we write to Gus O’Donnell, the Cabinet Secretary, and he writes a beautiful episode of “Yes, Minister” back. The Cabinet Secretary will never find against a Minister. Without the motion, there is no proper arbiter.

[Jacob Rees-Mogg]

I am grateful to the hon. Gentleman, who is a model in opposition of how people ought to approach this matter. As I understand it, he was a model in government, although not as invariably successful as a model ought to be.

The hon. Gentleman raises the issue of the indivisibility of the Government, who are both political and impartial. In a sense, it is much easier to be a judge or to be the Speaker, because people in those positions are always impartial. The Government are always seeking re-election, but at the same time, they must make decisions in the interest of the nation impartially and fairly—one hears Ministers talk about being in a quasi-judicial position in certain circumstances. Parliament seeks to divide those indivisible roles and to say, “That bit is political. Therefore we are holding you to account for political reasons, not necessarily because we disagree on the benefit to the nation.”

The Procedure Committee debated with a great deal of amusement whether impeachment could be reintroduced. I would love to see the hon. Member for Rhondda (Chris Bryant) introduce articles of impeachment against a Minister whom he thought had misbehaved. If that did not work, perhaps he could go further and attaint a Minister, which would be the final sanction.

However, the Committee decided, cautiously and prudently —to some extent this answers the point of my hon. Friend the Member for Poole (Mr Syms)—that, as the conclusion of part 1 of the report states,

“We do not believe that it is practical or desirable to produce a detailed protocol that would cover all possible situations”.

That is clearly right, because there will be circumstances in which Ministers must answer questions urgently—perhaps they would be pressed to do so or the financial markets demand it. However, there will also be occasions on which the Minister knows perfectly well that he has a jolly good, fat, juicy news story that he would like to put out to his chums and he does so. That is what we ought to be trying to stop.

I have great confidence in this Government when I think of what they have done so far to restore the standing of Parliament. We can see how much better debates are attended than they were under the previous Government.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

I suspect that that is more because of the quality of the hon. Gentleman’s speeches than those of any Minister.

[Jacob Rees-Mogg]

I am deeply grateful to, and flattered by, the hon. Gentleman.

[Mr Knight]

My hon. Friend is making an excellent contribution to this debate. In essence, is not our problem that the ministerial code, upon which we rely for justice in this respect, is presided over by the Prime Minister acting as a judge, when in reality he must also be an advocate for, and on the same side as, his Minister?

[Jacob Rees-Mogg]

I entirely agree with my right hon. Friend. It is important that this be brought to the Commons as a matter of our procedure, and that we do not rely on the good will or benign nature of the Government to see that it is enforced.

I want to finish on the sympathy that I have for the Government. They have allowed the formation of a Backbench Business Committee, which is letting debates such as this take place. Ministers are regularly making statements and they are answering questions for over an hour on those statements. There is a more rigorous approach to the treatment of scrutiny, and the House of Commons is being treated more seriously. That is a thoroughly good and admirable thing. None the less, the House of Commons should be greedy and say, “We want more scrutiny of the Government. We want to push the Government further so that we may keep them under control and under a proper check because they wield the most gigantic power.”

The Government have all the organs of state at their control. They have as many press officers, briefers and leakers as one may wish to cast a stick at. The Opposition do not have that. Nevertheless, the day will come when the Conservatives are once again in opposition and we will want to claw our way back into government and will not want to have the dice loaded against us as they were between 1997 and 2010. For that, we must make tough decisions to hold the Government to account when it is a Government whom we support, and that scrutiny must be firmly embedded, reinforced and made solid in the culture of the House. Although the motion may not be ideal, it unquestionably moves in the right direction. If the Government do not accept it today, I hope that they will at least indicate what they will accept and how quickly they will pass this from the Government, the Crown, and back to Parliament.

17:41

[Nick Boles (Grantham and Stamford) (Con)]

I have spent only a year and a half of my 46 years inside this place. I have observed that there is no time when the House of Commons makes itself more ridiculous than when it is suffused with self-serving piety. I accept that there is no one here with a greater claim to true piety than the hon. Member for Rhondda (Chris Bryant), and he has made, as he always does, some brave and bold arguments. However, it was with some relief that I saw my hon. Friends the Members for Poole (Mr Syms) and for South Staffordshire (Gavin Williamson) breaking through that self-serving piety with a little common sense.

[Chris Bryant]

I am not sure whether the hon. Gentleman is accusing me of self-serving piety. For the avoidance of doubt, let me say that I have no piety about me.

[Nick Boles]

I was accusing the House of being suffused with self-serving piety and giving the hon. Gentleman a bye on the basis that his past suggests that true piety is one of his qualities.

Let me start with where I am in agreement with other Members, including my wonderful hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). Holding Government to account is one of Parliament’s primary functions, but it is not its only function. Parliament is also there to supply and support a Government.

If Parliament’s primary function is to hold Government to account, no Government in recent times have done more to strengthen the power of Parliament to do such a job. It was this Government who introduced elections by Back Benchers of Chairmen and of members of Select Committees. Previous Governments, including the one of which the hon. Member for Rhondda was a member, appointed as Chairmen people who unfortunately needed to be eased out of their ministerial berths, where they had not been a success, and to be bought off for the rest of the term of that Government. This Government have turned their back on that naked attempt to suborn Parliament and have empowered Select Committees through the introduction of direct elections by Back Benchers.

[Ms Angela Eagle (Wallasey) (Lab)]

As a member of the parliamentary Labour party, I have to correct the hon. Gentleman’s assertion. The PLP instigated a rule stating that nobody straight out of serving in government could become a Select Committee Chair. After I left government and served on the PLP, which is the equivalent of the Conservative party’s 1922 Committee, no person coming straight out of ministerial office went into a Select Committee chairmanship.

[Nick Boles]

I am happy to be corrected on that point, but I hope the hon. Lady will confirm that it was this Government who introduced the election of Select Committee members and Chairs by Back Benchers, which significantly strengthened the independence of Select Committees and their ability to hold the Executive to account.

This Government also introduced the Backbench Business Committee, and so far have allotted it about 30 days of debate in Parliament for the subjects of most interest to Back Benchers. It was also this Government who introduced the concept of e-petitions to allow the House to debate not only the subjects of most interest to Back Benchers, but those of most interest to members of the public. It is clear, therefore, that it is this Government who have done most to strengthen Parliament’s ability to hold the Executive to account.

To be fair, we must also acknowledge that Mr Speaker has done more than any recent Speaker to ensure that Parliament can fulfil its function of holding the Executive to account. No Speaker has used urgent questions more regularly to force Ministers to come and account for their decisions and to answer questions from hon. Members.

[Dr Julian Lewis]

I am sure that Mr Speaker will be gratified by that vote of confidence—I say this without irony—from my hon. Friend, but does he not agree that it was at least unfortunate that, as Mr Speaker made explicit in response recently to a point of order from me, he felt it necessary to keep the Chancellor of the Exchequer at the Dispatch Box as long as he did during the autumn statement precisely because he considered that the Chancellor had been saying far too much, in far too much detail, about that statement in advance to the media?

[Nick Boles]

No, I do not actually, and I shall explain later why I do not agree with my hon. Friend.

No Speaker has done as much as the current Speaker to place strict controls on Front-Bench waffle during questions, thus ensuring that more Members can ask their questions and get answers on behalf of their constituents. And no Speaker has presided over such long statements, including the Chancellor’s autumn statement, thus ensuring that all Members with questions to ask on behalf of our constituents can be heard. It is clear, therefore, that this Government and this Speaker of the House of Commons have done more in a very short time than any recent Government to strengthen the power of the Chamber to hold the Executive to account.

What puzzles me about the argument put forward by most Members who have spoken is the suggestion that holding the Government to account requires a monopoly on first communication of the Government’s decisions. Surely the days are gone when Parliament should think of itself as and behave like a priesthood that gathers together the only people in the country with the intelligence and education sufficient to consider matters of state. Surely what matters is that Parliament has an opportunity to discuss any announcement by Ministers on the day that it is made or, if it is made over a weekend, on the next sitting day. Is it not our duty, in this place in 2011, to adapt this ancient institution to modern democratic principles, and does that not require that we strike a balance between Parliament’s essential role of holding the Government to account and the public’s right to know what their Government are doing as soon as possible?

[Bob Stewart (Beckenham) (Con)]

It seems to me that the best way of tackling the matter is this: when a Minister or a member of the Government needs for urgent reasons to make a statement publicly, he or she should do so and then come here as soon as possible. I am thinking, in particular, about matters in which military forces are involved. I do not see a problem with that. I think that the motion might allow for that—I hope that it does because that is how I interpret it.

[Nick Boles]

I thank my hon. Friend for that important and interesting intervention. I would go further, although I accept that very few people are of the same mind. We make a mistake in thinking that we can somehow reserve to decisions of military or financial sensitivity and urgency the possibility of their being made outside this place and then discussed fully inside this place.

[Sir Paul Beresford]

Does my hon. Friend not agree—from his vast experience in this place, and perhaps also looking from the outside—that although a considerable number of statements are of little or no interest to the House because they are regional, specific or small, perhaps involving one or two MPs, and so on, the decision on that, which the Minister takes, must be subjective, which makes the Minister vulnerable to attack, as we are seeing?

[Nick Boles]

I agree with my hon. Friend. This House has many opportunities to embarrass and annoy Ministers who seem to act with discourtesy towards us. I am not for a minute arguing that we should not make full use of that; I am just arguing against this motion.

I would like to move on to the example of the autumn statement—which my hon. Friend the Member for New Forest East (Dr Lewis) raised earlier—in which, as I think we can all agree, some of the most important announcements of this Session were made. It is true, as we should admit without embarrassment, that many of the proposals in the autumn statement were discussed widely in the media—on television, in the newspapers and in the blogosphere—in the several days before the statement. I have no idea whether that was by accident or by design, but I fervently believe that this ensured that public awareness and understanding of the contents of the Government’s plans and their response to the difficult economic situation in which we find ourselves was far higher than it would have been if nothing had been revealed until the statement was made. I ask Members to ask themselves two questions. First, how many people are willing and able, in their busy working lives, either to watch the autumn statement as it is broadcast on television or to read parliamentary reports? Secondly, how many of them, given the slightly weird way in which we all speak, will understand it when they do?

[Michael Ellis]

Is it not also a rather unsatisfactory and unsafe assumption for those supporting the motion that it is the Minister, or a servant or agent acting for the Minister, who leaked sensitive information? Is it not also possible that the information was accidentally leaked, or in some way given by a third party, against the interests of the Government? Might not passing this motion also open up the sphere for misuse of the complaints procedure, whereby the mere fact of a complaint would bring down adverse criticism on the head of the Government and the Minister?

[Nick Boles]

My hon. Friend is a distinguished member of the legal profession and therefore well understands the ability of people to abuse otherwise well intentioned elements of the law. However, I intend to go further than he suggests, because I argue that we should move away from this idea that it is a leak when the Government decide to announce in advance to the media some elements of their proposals. I believe that it is directly and strongly in the public interest that the public are given a chance to understand the detail of the Government’s proposals and the range of views and arguments that will be expressed, and for Parliament also to contribute to that debate, but not to have the monopoly on first communication.

[Jacob Rees-Mogg]

My hon. Friend makes a perfectly reasonable point. It would be perfectly possible to write a ministerial code that said, “Her Majesty’s Government will take not a jot of notice of Parliament, but will issue statements to whomever they feel like, whenever they feel like it.” If that is what my hon. Friend wants, will he redraft the ministerial code and send it to the Prime Minister?

[Nick Boles]

My hon. Friend asks a cunning question, but one I think I can sidestep by saying that, as I discussed with him before the debate began, I think that the ministerial code is a load of nonsense. The truth about the ministerial code is what he said, which is that a Minister can stay in their job while they have the confidence of the Prime Minister, but as soon as they lose it, it does not matter what the ministerial code says, they should lose their job.

[Thomas Docherty]

On the hon. Gentleman’s point about helping the public better understand, is his argument that the Treasury leaked the entire contents of the autumn statement for the benefit of some public good, rather than because it wanted to get its excuse in first?

[Nick Boles]

First, I have no idea whether it was, in fact, the Treasury that leaked any of the details. Our journalists are cunning ferrets and they have remarkable ways to get information out of the leaky sieve that is a modern Government. However, more importantly—and to take the hon. Gentleman’s concern seriously—I do not know whether that was done for the public benefit, but I am absolutely certain that it was in the public interest. It was to the public’s benefit that there was wide discussion, over several days, on all the leading television programmes and in all the leading newspapers, about proposals that would have received much less attention if they had been left until Parliament heard the autumn statement.

Let us focus, then, on our true duty. Our duty is not to serve ourselves, to puff up our roles as Members of Parliament or to bolster our privileges; it is to serve the public. We do so by holding the Government to account, not by requiring them to leak all their information in this strange room, rather than out there, where people are listening. Nobody in this debate has yet explained why the public are better served by announcements being reserved to Parliament. That is why I will not support the motion.

17:56

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

I speak as a member of the Procedure Committee. I congratulate the Chairman, who is in his place, and my hon. Friend the Member for Darlington (Mrs Chapman) on their sterling work on the report, alongside the hon. Member for North East Somerset (Jacob Rees-Mogg) and other colleagues.

I have been fascinated by many of the contributions, which have again served as an excellent way of spotting who is on the fast track up the ministerial ladder. It is perhaps with some regret that, yet again, the hon. Member for North East Somerset has put his principles ahead of the greasy pole. However, he reminded me of a fellow old Etonian, Mr Hugh Dalton, who is probably the most obvious example of a member of a Government having to resign over this issue, because the contents of his Budget found their way into a newspaper before being read out to the House of Commons. Everyone is familiar with that story. What they are probably not familiar with is the fact that Hugh Dalton’s reasoning for giving that information—apparently as he was passing through Members’ Lobby on the way into the House of Commons—was that he believed that it would be said to the House before appearing in that day’s London newspapers. Even Mr Dalton, who is often held up as an example, as the first great leaker, said that his intention was for the House of Commons to hear the statement before the public at large. Unlike the hon. Member for Grantham and Stamford (Nick Boles), I believe that it is to the public’s benefit that this House has an opportunity to scrutinise what the Government are proposing first, a point to which I shall return.

On the earlier point about why the Prime Minister is the wrong person to oversee things, the hon. Member for North East Somerset mentioned a rather good British Broadcasting Corporation programme, “Yes, Prime Minister”, and the famous and funny episode about a leak. For those who can recall it, the Prime Minister’s office was leaking against a member of his Government—something that I am sure the Leader of the House will tell us never happens in this Administration; they use tweets, apparently—if their fingerprints are not found on their iPhones. I am sure that the hon. Gentleman requires no reminder, but the outcome of the episode to which he referred was that the whole farce was brought to an end by a leak inquiry, which, as Sir Humphrey reminded the Prime Minister, would result in no evidence being found, no guilt being established and nobody losing their job. As is too often the case in this place, comedy—in this case, BBC comedy—imitates life. The problem is that, despite some incredibly serious leaks of Government statements, on not a single occasion during the 18 months for which the present Government have been in office has a single civil servant, special adviser, parliamentary private secretary or Minister been found to have breached the rule. I believe that in the last month alone no fewer than three Secretaries of State have been admonished by Mr Speaker for the fact that serious leaks have occurred, but as far as I can tell, their best excuse was, “It wasnae me. I didnae do it. A big boy did it and ran away.” Responsibility was mentioned earlier. It is the responsibility of a Secretary of State to ensure that information is not leaked from his or her Department.

[Michael Ellis]

Is the hon. Gentleman interested in the principles of natural justice? Does he believe that people ought to be guilty until proved innocent, or that people ought to be innocent until proved guilty unless they are in this Chamber?

[Thomas Docherty]

I am conscious of the danger that we will slip into the subject of our next debate, but I believe that Members of Parliament, including those who have the privilege of serving on the Treasury Bench, should be held to the highest possible standard, and I regret to say that that has not always happened in the case of a small number of Secretaries of State and their Departments.

The hon. Member for Poole (Mr Syms) cited Neville Chamberlain. Let me first remind him that what Chamberlain said was “peace for our time”, not “peace in our time”. Given the hon. Gentleman’s close association with the Secretary of State for Education, who I understand is very keen on British history, that is the kind of thing that we should expect him to get right. What he did not mention, however—[Interruption.] I hear a mobile telephone ringing. It is probably The Guardian, asking for the latest statements.

What the hon. Member for Poole did not mention was that the then Prime Minister, having left the airport tarmac clutching his piece of paper, went straight to the Chamber of the House of Commons, where he gave a detailed account of events in Munich and responded to questions over a substantial period during which he was subjected to considerable heckling from Members on his own side.

[Sir Paul Beresford]

The hon. Gentleman is giving us a delightful piece of history. However, the reality is that nowadays the Prime Minister would arrive and be flooded with television cameras, microphones and so forth, there would be educated and uneducated guesses, the Prime Minister would be trapped into having to respond—and he might indeed use the words “in our time”.

[Thomas Docherty]

I am sorry that the hon. Gentleman has such a low opinion of his party’s Prime Minister that he does not consider him to be sufficiently fleet of foot to outfox a handful of Fleet street’s finest, but we are discussing something more substantive than a Prime Minister’s arrival from the tarmac to make a major policy announcement. We are discussing the habit that the Government have fallen into, after just 18 months, of considering no announcement too big or too small to be given to the media before they can be bothered to get around to giving it to the House.

We saw an example of that only a few days ago. The Department for Energy and Climate Change contacted The Guardian’s twitter feed more than half an hour before it was known that a statement was to be made, let alone what the contents of that statement were to be. It is a matter of great regret to many Members on both sides of the House that the Secretary of State and his cohorts have such a low regard for this place that they cannot even be bothered to tell Mr Speaker or the Opposition that a statement is to be made before they tell the media.

[Bob Stewart]

What worries me is that Ministers are supposed to govern, that “governing” sometimes means making decisions, and that there are a heck of a lot of decisions that Ministers must make. Given the flood of decisions that would end up in the House if every single matter had to be referred to it, we should never be able to do anything. Ministers should be allowed to get on with things, and then come to the House to announce particularly important decisions. I agree with the hon. Gentleman that it is proper for a Minister to be allowed to make a quick statement and come to the House as fast as possible in such instances.

[Thomas Docherty]

I am always grateful to the hon. Gentleman for his thoughtful contributions. I know that he has had some experience of the perils of leaks in recent days, and that he shares my concern about leaking. However, there are two types of statement.

The hon. Gentleman will not need to be reminded that today’s Order Paper lists no fewer than eight written ministerial statements. We are not talking about the need for every statement to be made orally on the Floor of the House; it is perfectly legitimate to place written statements in the Library of the House of Commons. Some of them are quite important. For instance, the third on today’s list is a statement from the Secretary of State for Environment, Food and Rural Affairs on the single payment scheme, a vital subject that is of great concern to many farmers throughout the country. As a member of the Environment, Food and Rural Affairs Committee, I know that the Government have repeatedly failed to meet their obligation to ensure that our farmers receive the money that they should receive, and that is a subject to which the Opposition may choose to return. The key point is, however, that such statements should be made to the House—in either oral or written form—before being punted not just to the “Today” programme, not just to “Daybreak” or the programme that follows it, and not just to “BBC Breakfast”, but to the new media. The constant leaking suggests that it is almost a case of “Anywhere but the House of Commons”.

I believe that the reason is quite straightforward. Let me return to a point made a few moments ago by the hon. Member for Grantham and Stamford. This is actually about softening bad news—about trying to get the Government’s version out there. As was rightly pointed out by the hon. Member for North East Somerset, there are hundreds of press officers, employed at taxpayers’ expense, whose job is to try to soften that bad news. Unfortunately the country will be given a great deal more bad news over the next three and a half years as the Chancellor’s economic policies continue to fail, as the economy continues to flatline, as the Government refuse to accept the need for a plan B, and as week after week the Chancellor is forced to come back and downgrade his growth forecast. That is why the Government do not wish to come to the House: they do not wish to scrutinise themselves.

Those of us who are historians, or history buffs, often enjoy taking our constituents around the Chambers of both Houses. One of our great pleasures, which I am sure you have experienced, Mr Deputy Speaker, is taking our constituents to the Chamber in the other place and showing them the table at which Winston Churchill stood during the years when the House of Commons Chamber was unavoidably out of action following the bombing in May 1941. We can see the mark on that table that was made when Winston Churchill, who I would argue had more on his plate than any other Prime Minister—not just his Sunday lunch, but all the matters with which he was dealing—banged his hand on it. He came to the House, made himself available for scrutiny and answered questions for hour after hour, because it was important for the country to feel confident that the House of Commons had exercised due diligence and scrutiny.

The hon. Member for Grantham and Stamford—in one of the most creative speeches that I have heard for some time, during which he tried to justify his former flatmate’s leaking of the whole autumn statement the previous weekend—claimed that this was about the public interest.

[Nick Boles]

I am forced to intervene because the hon. Gentleman has accused me of two things in the last 10 minutes: of being an old Etonian, which I am not, and of having been the flatmate of the Chancellor of the Exchequer, which I never was.

[Thomas Docherty]

I apologise on the second count, although I suspect that it was the Chancellor’s loss rather than the hon. Gentleman’s. As for the first, I was referring to the hon. Member for North East Somerset, who is sitting next to him, and whom I know to be the finest old Etonian currently serving in the House—bar one, obviously. I am sure that he will have an equally long career.

A fundamental point was made earlier about the public good and about debates. As the hon. Member for Grantham and Stamford will know, every Budget is followed by a Finance Bill, which requires the exercise of due diligence and is debated at some length. I am sure that if he has not had the privilege and pleasure of serving on a Finance Bill Committee, the Government Whips, who are doubtless paying attention, will be more than happy to introduce him to the process, which allows outside stakeholders, representing the interests of his City friends and those of the country at large, to make their cases to Members.

[Nick Boles]

Would the hon. Gentleman care to enlighten us as to how many members of the public attend sittings of the Finance Bill Committee?

[Thomas Docherty]

I have served on only one Finance Bill Committee, as a researcher many years ago, and the public gallery was packed. Of course, there is a wider debate about how we can further open up our Bill Committees to the wider public, but it is not just about the debate itself; it is also about the process post-Budget, pre-Bill Committee, when all interested groups can make representations. I am sure that the hon. Gentleman and hon. Members on both sides of the House received many representations on the Budget from constituents. That is the correct forum for having a good discussion about the merits of the Budget, not the Sunday papers and the Sunday programmes beforehand.

That is the problem with the Government: they have no regard for the House, the public at large or the many interested groups. They have got it back to front. The first thing they should do is lay their policy before Parliament; then they should allow the House to have scrutiny; and then they should welcome proper consultation on their policies—three things that they have repeatedly failed to do.

I am conscious that my hon. Friend the Member for Wallasey (Ms Eagle) and the Leader of the House need to respond to the debate. This is not a light matter. It is genuinely about whether we want a Government, regardless of their political hue or whether they are a rainbow coalition, who believe that they are accountable to the people through the House, or a Government who continue to be accountable to a handful of editors of newspapers and TV programmes. It is genuinely about whether the House remains the primary point at which the Government will be held accountable.

18:11

[Ms Angela Eagle (Wallasey) (Lab)]

We have had an interesting debate, which has sought to address the continuing tension between the Government's desire to get what they see as favourable coverage in the media for their announcements, and Parliament's requirement that it, and not the media, should be told first of any important new announcements, so that it may do its job in holding the Government to account. Some of the tension between the different approaches to that particular job has been expressed in the speeches that we have heard tonight, not least those by the hon. Member for North East Somerset (Jacob Rees-Mogg), who is a pro-House of Commons man to his very core and made that clear in his contribution, and the hon. Member for Grantham and Stamford (Nick Boles), who is not, if I could put it that way, because he seemed to spend most of his contribution questioning whether the ministerial code should exist in its current form at all, which is probably one of the more radical suggestions in the debate.

I do not think tension between those two issues—the Government's desire to get favourable news coverage and Parliament's understandable desire to be at the centre of national debate—is anything new. Many previous Governments, of all political hues, have been found wanting when it comes to ensuring that their announcements of important policy decisions happen first in Parliament. Many right hon. and hon. Members, including my hon. Friend the Member for Rhondda (Chris Bryant) in what was an extremely wise speech, have pointed out, not only in our debate today but in previous debates, that the situation has been exacerbated by the advent of 24-hour news.

We have also seen the explosion of new platforms for the dissemination of information, which simply were not envisaged when our Parliament first formulated its now rather antiquated procedures and Standing Orders. The increasingly cut-throat competition between print and broadcasting media has not been mentioned, but it is relevant to the issues that we are struggling to resolve appropriately in the Chamber. There is a battle to obtain “breaking news” first, and the cavalier approach to rules and standards of behaviour in the media, now being highlighted in evidence to the Leveson inquiry, does not provide an easy backdrop against which to expect improvements in that state of affairs. Thus the trade in exclusive first access to important Government announcements in exchange for favourable and uncritical coverage of the good bits appears to benefit Ministers and the media outlets alike. Whenever that potential exists, there will be a difficulty that we as a Parliament have to struggle with if we are going to ensure that this Chamber gets a look-in. Unfortunately, that trade is flourishing as never before.

The lack of any real sanctions on Ministers when such leaks occur does not help Parliament to achieve its proper aim: to ensure that it is elected Members of the House, who are here to represent the views of their constituents, who are first to question Ministers on their policy announcements and thereby hold them directly to account. That is despite the clear instructions in paragraph 9.1 of the ministerial code 2010, which has been quoted in our debate:

“When Parliament is in session, the most important announcements of Government policy should be made in the first instance, in Parliament.”

The hon. Member for Grantham and Stamford had a separate argument that that should be expunged from the ministerial code. It is a point of view. It is not a point of view that I feel would get a majority in the House, but at least he has been open and up-front enough to advance that argument. However, I think that the vast majority of us here want, in considering these difficult issues, to find a way of making the ministerial code work properly, so that this Chamber can be what it was always meant to be: the place where the most important debates about Government direction happen.

It is clear that that statement of intent is a good thing but is far from being achieved in reality. Indeed, I think that it is flouted regularly by senior members of the Government, from the Prime Minister down. The ministerial code itself now appears to be more honoured in the breach than in the observance, as I pointed out last week on a point of order. My observation followed the systematic and premeditated leaking of every piece of good news in Thursday's autumn statement to the media in advance, usually accompanied by photo calls with Ministers in high-vis jackets.

I was unaware at the time, although we have been informed of this today, of the Humber bridge coincidence, if I may put it that way. There was an announcement of the decrease in tolls on the Humber bridge and some hon. Members, just by coincidence, happened to be available on the Humber bridge. Obviously they had no idea that the media might be on the Humber bridge with their cameras waiting for an instant reaction to something that, clearly, the Members in question had no idea was about to be announced in the autumn statement. Perhaps there are people who believe that that is indeed what happened on the day, but many of us have some suspicions that there may have been something slightly improper going on with the autumn statement. The fact that the autumn statement was in essence a mini-Budget simply made the offence all the more blatant. In my view, it showed a cynical and total contempt of this House and a complete disregard of the ministerial code itself.

While I am on that subject, another important part of the ministerial code was also ignored ahead of the Chancellor delivering his autumn statement to the House last Tuesday. That was the requirement in paragraph 9.5 that the text of the oral statement should be shown to the Opposition “shortly” before it is made. Although no precise time is specified, the paragraph requires copies of the statement and associated documents to be sent to the Chief Whip and his office 45 minutes in advance. I would like to take this opportunity to ask the Leader of the House whether he had the documentation in his office 45 minutes in advance. His answer is important because, in the event, my right hon. Friend the shadow Chancellor got barely 10-minutes’ notice and a heavily redacted copy of the statement. This puts all opposition parties in difficulty when trying to reply to complex announcements. Like everyone else however, my right hon. Friend had been able to piece together what all the positive Government announcements were likely to be from watching the news, but that is not what is intended by the requirements for oral statements under paragraph 9.5 of the ministerial code. I would be interested to hear what the Leader of the House has to say about that.

There have been further worrying signs of escalating ministerial disregard for Parliament. Notable among them was the Secretary of State for Energy and Climate Change’s astonishing discourtesy to the House two weeks ago. His intention to come to the House to make an energy statement—laudable in itself—was somehow tweeted to the world 30 minutes before his Opposition shadow was told by an environment journalist at The Guardian. An hour later the statement’s contents were leaked to the same journalist and were up on the website hours before the Secretary of State was due to deliver the statement in this place. As far as I can tell, absolutely no action has been taken by the Government to reassure us that this will not happen again, and the Secretary of State has offered neither an explanation nor an apology to the House for this strange coincidence.

As the hon. Member for Kettering (Mr Hollobone) set out in his speech moving the motion, and as was also pointed out by the right hon. Member for East Yorkshire (Mr Knight), the Chair of the Procedure Committee—which has done an extremely good job—the Procedure Committee produced its February 2011 report on ministerial statements at the request of this House, which is an unusual way of doing things. That followed the first ever debate initiated by the Backbench Business Committee, which took place last July. At that time, the Leader of the House supported the Procedure Committee’s inquiry into how Parliament’s understandable determination not to be the last to know about ministerial intentions could be translated into a workable system that would improve the current sorry state of affairs. In that first debate, the Leader of the House said:

“We devalue ourselves if the news is being made elsewhere. We therefore risk losing our position as the centre of British national debate. That is surely why the principle that we are debating today is important…We are elected here to scrutinise the Executive and to hold Ministers to account on behalf of our constituents. It is therefore crucial that Ministers explain and justify their policies in the Chamber in the first instance.”—[Official Report, 20 July 2010; Vol. 514, c. 263.]

That provides the most eloquent response to the comments of the hon. Member for Grantham and Stamford.

We had to wait until May for the Government’s response. When it finally arrived, it was disappointingly dismissive—as the right hon. Member for East Yorkshire hinted—and since then an uneasy stand-off between the Executive and the House of Commons has prevailed. No action on the recommendations in the report has been taken. In his speech, the right hon. Gentleman described the Government response as “highly unsatisfactory”, and I agree.

Throughout this period, there have been ongoing briefings and announcements of Government policy to the media rather than Parliament. The large number of urgent questions that Mr Speaker has seen fit to grant during this time is a good measure of the extent of the Government’s current disregard for the rules on ministerial statements. Never have the high ideals proclaimed by a new Government at the beginning of a Parliament so swiftly turned to dust. Their laudable early determination to put Parliament back at the centre of national debate has been throttled by the cynical opportunism of myriad SpAds—special advisers—and spin doctors. Their headline-chasing, public relations-fixated masters have meanwhile been busy driving a coach and horses through the ministerial code. So much for hoping that the Government would be capable of resisting the temptation to trade with the media in early announcements to the detriment of Parliament’s right to know first. So much for hoping that the Government would be content to allow the recommendations in the Procedure Committee’s report to be put into effect, or at least that some progress might be made on this issue.

What is to be done? It appears that the Backbench Business Committee has grown impatient waiting for the Government to deal with the recommendations in the report on ministerial statements, and I cannot say I blame it. It has decided to try to force the issue, and the motion before us seeks to put into effect just one of the recommendations contained in its report: the recommendation specifying a new procedure for complaining to the Speaker about a breach of the protocol that statements should be made first to Parliament. It would allow the Speaker to judge whether a minor, or more serious, breach had occurred. It would empower him to take appropriate steps in the event of minor breaches, and to refer more serious cases to the Standards and Privileges Committee for further investigation. In essence, this gives the Speaker—and therefore, by definition, this House—the power to begin to enforce the protocols that exist to guide Ministers’ conduct on announcements. Perhaps this is the only way progress can now be made, given that the Government’s enthusiasm for making improvements in this area seems to have evaporated completely.

In the Government’s response to the report, on the suggestion that the Speaker should be empowered to enforce the protocol, they consider that an adequate range of “sanctions” for such misbehaviour by Ministers is already available. In what is one of the weakest sections of their response, the Government list the granting of an urgent question, an investigation by the relevant Select Committee, or raising the breach at business questions or Prime Minister’s questions as adequate sanctions to prevent ministerial disregard for the rules. I have raised various breaches of the protocol either as points of order or in business questions during my short time as shadow Leader of the House, and I cannot say that I have seen Ministers either worried or apologetic about any breach. A complacent smirk seems to be the most usual response. The Government’s claim that adequate sanctions already exist cannot be true, or there would have been evidence that ministerial behaviour had changed and that Parliament was being bypassed in favour of announcement by media on fewer occasions. If anything, the opposite is true.

Given the Government’s obvious reluctance to embrace the recommendations in the Procedure Committee report and the evidence of ongoing and serious breaches of the protocol about Ministers making important statements to Parliament first, the Opposition will vote for this motion tonight. I also want further consideration to be given to how other recommendations in the report can be put into action in the future, and I look forward to working with Members on both sides of the House to ensure that we can take these important matters forward to a sensible conclusion.

18:19

[The Leader of the House of Commons (Sir George Young)]

I welcome the opportunity to contribute to this debate, which is being held only because this coalition Government established the Backbench Business Committee, giving it the opportunity to set the debate and allow a vote. The shadow Leader of the House raised the availability of the autumn statement. We always use our best endeavours to get the documents to the Opposition Whips office within 45 minutes, and we will continue to do so.

Let me set out the Government’s position on the motion moved by my hon. Friend the Member for Kettering (Mr Hollobone). As he said, it arises from, and refers to, the Procedure Committee report on ministerial statements published in February. The Committee was asked to prepare its report as a result of the debate on the first Backbench Business Committee day on 20 July last year and the motion, also moved by my hon. Friend, that was agreed that day.

The Chair of the Procedure Committee, my right hon. Friend the Member for East Yorkshire (Mr Knight), sought a debate on a motion taking note of that report, which would have covered more issues than are under discussion today, but the motion was never debated. The Backbench Business Committee has now chosen to introduce its own motion on the subject, drawing on parts of certain Procedure Committee recommendations —although, as my right hon. Friend implied, it is unclear why we are not debating the whole report. As the shadow Leader of the House said, we responded in full to the Procedure Committee’s report and our views on its recommendations have been available to hon. Members since May. We made it clear in our response that we did not support the relevant recommendations of the Procedure Committee and so it should come as no surprise to the House that we are not able to accept today’s motion.

Let me begin by setting out where the Government are at one with the Procedure Committee and, indeed, with the majority of those who have spoken in the debate, before setting out where we disagree. The ministerial code states:

“When Parliament is in session the most important announcements of Government policy should be made, in the first instance, to Parliament.”

My Cabinet colleagues are very mindful of that requirement, and I do not hesitate to remind them of it. But there is clearly a “tension”—that word was used by the shadow Leader of the House—between the realities of the 24-hour news cycle and the requirement of the ministerial code. As the Government said in their response to the Procedure Committee in the spring:

“Ministers’ obligations to Parliament are paramount, but the Government also has a duty to communicate its policies and programme effectively to the wider public, including through the platform of a 24-hour news media. These dual pressures have been a reality under all recent governments”.

My hon. Friend the Member for Poole (Mr Syms) made that point in his effective contribution.

I looked through the evidence to the Procedure Committee and read that a former Minister, the right hon. Member for Greenwich and Woolwich (Mr Raynsford), said in his:

“I don’t think we should complain about Government trying to maximise the positive media for its policy. Any Government is going to do that.”

Ministers must adhere to the responsibilities of the code, but we also need to bear in mind the need to address the public’s desire for timely, accurate information, especially when fast-moving events have a capacity to distort or misrepresent the Government’s policy. The public’s appetite for that does not start and end with the day’s sitting hours—again, that point was made by my hon. Friend the Member for Poole.

Of course the House has legitimate expectations in this area, and this Government are making many more statements than their predecessor. We have so far made 163 oral statements this Session, and compared with the last two Sessions of the previous Government, this Government are making 40% more oral statements than Labour Ministers—a point made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). We have only to look at the record of my right hon. Friend the Prime Minister to see how importantly the Government view the House’s role in scrutinising policy. My right hon. Friend has spent almost 30 hours at the Dispatch Box, making 24 oral statements so far this Session, which is a considerably better record than his predecessor.

[Paul Flynn (Newport West) (Lab)]

Will the Leader of the House state how many of that increased number of statements were forced on the Government by the increase in urgent questions?

[Sir George Young]

None is the answer; urgent questions are in addition to the statements to which I have just referred.

I do not believe that the motion either sets realistic standards or proposes an appropriate path for what might follow from a departure from the standards. I say in passing that it also threatens to undermine the basis that all Ministers are equal under the ministerial code, because the motion applies only to Commons Ministers.

[Chris Bryant]

The Leader of the House is being slightly unfair. Often what happens—indeed, it happened today—is that a Member applies for an urgent question and the Minister, by some miracle, immediately decides that it would be a good idea to ask to make a statement. In those circumstances, would it not be a good idea if the Minister just started his statement with an apology?

[Sir George Young]

However one looks at the statistics, there has been a marked increase in the willingness of this Government to come to the House to make statements; the figures speak for themselves.

I turn to the question on which we disagree: whether or not the standards set out in the motion are the right ones. The Cabinet manual is clear that

“When Parliament is in session the most important announcements of government policy should, in the first instance, be made to Parliament”.

The words in the Cabinet manual were used in terms in the resolution of this House on 20 July, which again referred to “the most important announcements”. However, the motion before us today broadens the requirement massively, and in an open-ended manner, to “all important announcements”. At a stroke, the motion seeks to sweep away the intention of the Cabinet manual to draw a distinction between those matters that are properly for Parliament first and those matters that can be announced in other ways. As my hon. Friend the Member for South Staffordshire (Gavin Williamson) said, almost all announcements made by the Government are important to someone. I commend the way in which he managed to get into his speech the names of a number of large villages in his constituency, and I am sure that the people in all those were delighted to hear of his commitment to them. If the House were to agree to this motion, it would replace a text that acknowledges the need for a sensible judgment about relative importance with a text that invites consideration of importance wholly in isolation.

The motion seeks to lay down a blanket requirement for statements to be made to the House first “on all occasions”, without any exceptions or qualifications. Let us consider a recent example. Does the House seriously imagine that the Government’s policy on the advice to be given to British nationals on travel to Iran should not have been announced before the House sat? Equally, the motion contains no recognition that certain market-sensitive announcements must be made when financial markets are closed. For example, a whole series of announcements by the previous Administration about Government support for the banks were made at 7 am. As the then official Opposition, we understood why Parliament could not be told first. If this motion is passed, any Minister making a similar announcement would face an inherent conflict between their obligations in relation to the financial markets and their obligations to this House.

[Thomas Docherty]

For the sake of clarity, will the Leader of the House therefore confirm that if the motion had specifically excluded financially sensitive information and matters of state security, he would have supported it? Or is this simply a smokescreen?

[Sir George Young]

First, the motion did not do that and the hon. Gentleman did not table such an amendment. Secondly, if he listens to the rest of what I have to say, he will understand that the Government have other difficulties with the motion.

Similarly, the motion contains no acknowledgement that announcements of policy that are the subject of international agreement must often be made simultaneously and on terms acceptable to the other parties to such agreement. My right hon. Friend the Prime Minister successfully negotiated an agreement among the 16 realms at Canberra about the royal succession, and being able to announce that decision together with other Heads of Government at Canberra was part and parcel of the negotiation. The motion, if agreed to, would limit the Government’s ability to reach and announce joint or multilateral agreements—my hon. Friend the Member for Beckenham (Bob Stewart) also made the relevant point about military intervention.

The motion also seeks to establish as a protocol the requirement that any information that forms all or part of an announcement to Parliament should not be released to the press before such a statement is made to Parliament. That would be very difficult to interpret where the development of a policy has gone through several stages, some of them in the public domain. As my hon. Friend the Member for Beckenham pointed out, the inevitable increase in statements, both written and oral, that would result from a blanket interpretation would risk squeezing the House’s other business, including Opposition day debates and Back-Bench debates, as well as putting at risk the effective scrutiny of Government legislation. That is one of the central tasks of the House; it is not an optional extra.

[Michael Ellis]

The ministerial code of conduct makes it clear that all Ministers are equal, even those in the other place, so is the Leader of the House not concerned that this motion is particularly in error because it is silent about the Ministers in the other place?

[Sir George Young]

My hon. Friend is absolutely correct and I believe that I touched on that a moment or two ago.

The motion would create new, enforceable rules of the House, and that is a novel step. In 1995, the House passed a resolution setting out the principles that should govern the conduct of Ministers of the Crown in relation to Parliament. The resolution referred to broad principles of accountability, and the duty not to mislead Parliament and to be as open as possible. It made no mention whatsoever of a duty to make statements in the House first.

I shall now deal briefly with the process outlined in the motion, which my hon. Friends did not touch on. The first step in any case where a Member believes the standards had been breached—

[Sir Paul Beresford]

Will my right hon. Friend give way?

[Sir George Young]

If I may, I will make some progress and then give way.

The first step in those circumstances would be to refer the matter to Mr Speaker. The relevant recommendation of the Procedure Committee says the following about what happens next:

“If he determined that the complaint was without basis or trivial, it would be open to him to dismiss it.”

The motion makes no mention of that. Where a minor breach has occurred, the motion, like the recommendation, refers to Mr Speaker taking steps. But Mr Speaker already has the power to summon Ministers to the House to answer urgent questions—a power used more extensively by this Speaker than by any of his predecessors. One should not underestimate the value of that tool. The former shadow Leader of the House, the right hon. Member for Leeds Central (Hilary Benn), told the Procedure Committee that Ministers take urgent questions very seriously indeed.

A range of other options are already available to the House to hold Ministers to account and can be used as sanctions. Ministers can be cross-examined by departmental Committees, they can be called to account through debate in the House—more so than ever before as a result of the Backbench Business Committee—and there can be a debate, in extreme circumstances, on a motion of censure. Indeed, I recall answering a debate in which it was proposed that my salary as a Minister should be reduced—a motion that, in its wisdom, the House did not carry.

In those circumstances, we oppose the suggestion that it would be a useful addition to give Mr Speaker the power to refer a more serious or complex breach to the Committee on Standards and Privileges. That proposal was made by the Procedure Committee, although I note that the Committee has not published any written or oral evidence to show the views of the Standards and Privileges Committee on the proposal, a point made by my hon. Friend the Member for Mole Valley (Sir Paul Beresford). Given that there is no proposal to change the terms of reference of that Committee, I assume that a referral would be treated as a matter of conduct. The code of conduct, which applies to all Members, contains no reference to the conduct of Ministers. Indeed, this subject was not raised in the recent consultation on the code. Out of the blue, the motion seeks unilaterally to change the principles behind the code before the House has even had an opportunity to review them.

As a former Chairman of the Standards and Privileges Committee, I think that those proposals could conflict with the fundamental role of that Committee, which is to regulate the conduct of individual hon. Members. It is not the function of the Standards and Privileges Committee to enforce the ministerial code and there is a real risk of double jeopardy if two institutions—the Prime Minister and the Standards and Privileges Committee—police the same code.

My right hon. Friend the Member for East Yorkshire, who chairs the Procedure Committee, said that the Government preferred the status quo. That is not quite the case. We proposed a number of reforms to his Committee. First, we suggested that there should be time limits on certain oral statements, so more could be made. That was rejected. Secondly, together with the then Shadow Leader of the House, I expressed an open mind on the proposition that oral statements could be made in Westminster Hall, but the Procedure Committee made no recommendation on that. Thirdly, I proposed that the earliest time for the release of written ministerial statements should be brought forward from 9.30 am to 7 am, which could be coupled with arrangements that the House already has to ensure the prompt availability of such statements on the parliamentary website. The Procedure Committee rejected that suggestion.

The Government are keen to pursue proposals that enable the House and its Members to be informed first of the most important announcements of Government policy in helpful and innovative ways. In the light of recent events, I will remind all Cabinet colleagues of the terms of the code and the strong views of the House in the debate this evening. However, the proposal before us does not take matters forward constructively. It seeks unrealistically to change the standards expected of Ministers and then seeks to subject them to additional policing that muddies the waters surrounding the role of the Standards and Privileges Committee. For those reasons, I urge the House to reject the motion.

18:42

[Mr Hollobone]

With the leave of the House, and on behalf of the Backbench Business Committee, I want to thank all right hon. and hon. Members who have attended and contributed to this afternoon’s debate over the past two and a half hours. In addition to the speeches made by me, the Leader of the House and the shadow Leader of the House, there were nine Back-Bench speeches and some 47 interventions. The hon. Member for Rhondda (Chris Bryant) reminded us that we live in a world with the insatiable beast of 24-hour rolling news and that Government announcements often were not sensitive, but he was worried that Mr Speaker might be drawn into party political warfare.

My right hon. Friend the Member for East Yorkshire (Mr Knight) said that the Government’s response to the Procedure Committee’s report was highly unsatisfactory, but pointed out quite fairly that there were further recommendations in the report that we are not debating tonight. He also stressed that one of the problems with the ministerial code is that it is up to the judgment of the Prime Minister and that Parliament has no role in enforcing it.

My hon. Friend the Member for Poole (Mr Syms) accused me of harking back to a mythical golden age and quoted Neville Chamberlain on his return from Germany, saying “Peace for our time.” My hon. Friend also said that we need “to live in the real world—a world with 24-hour news”. He was worried that the protocol would not work.

The hon. Member for Birmingham, Yardley (John Hemming), who has the privilege of serving on both the Backbench Business Committee and the Procedure Committee, urged Ministers to toe the line while visibly crossing the line himself.

My hon. Friend the Member for Mole Valley (Sir Paul Beresford), who is a member of the Standards and Privileges Committee, was unhappy that the Committee had not been involved in the preparation of this motion and said that the debate was too early. He was also worried that the Chamber would get clogged up with lots of minor Government statements on all sorts of different subjects.

My hon. Friend the Member for South Staffordshire (Gavin Williamson), who, I believe, is a Government Parliamentary Private Secretary, said that it was difficult to decide what would be and would not be important as far as Government statements were concerned. He accused those who tabled the motion of not recognising the realities of the present-day news media.

My hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who serves on the Procedure Committee, placed the debate into an historical context, going back to Queen Elizabeth I. He reminded us that the ministerial code says that the Government have a duty to restore trust in politics, but he also said that a resolution of this House is substantial, solid and dignified, in contrast to the ministerial code, which is merely a lot of waffle around the main theme that Ministers remain Ministers almost whatever they do so long as they enjoy the confidence of the Prime Minister.

In complete contrast, my hon. Friend the Member for Grantham and Stamford (Nick Boles) accused me and the House of being suffused with self-serving piety. I commend him for his forthright honesty in saying that the ministerial code, in his view, was a complete load of rubbish that ought to be torn up and that the Government should be quite open in making their news announcements to the public first without coming to this Chamber. I commend my hon. Friend for his honest approach; I condemn those Members of this House who pretend that this Chamber is where important news ought to be announced while routinely leaking that information to the press.

Finally, we had a contribution from the hon. Member for Dunfermline and West Fife (Thomas Docherty), who reminded us of the former Chancellor of the Exchequer, Hugh Dalton, who resigned for leaking details of his Budget statement. The hon. Gentleman also made a very good point in answer to those who are worried that the Chamber will be clogged up with large number of oral statements about policy announcements: written ministerial statements are perfectly acceptable.

This has been a very well-informed, enthusiastic and interesting debate. For my part, this is not about Conservative versus Labour or Government versus Opposition. It is about this House of Commons, as one part of the Houses of Parliament, holding Her Majesty’s Government to account for their decisions and announcements. I leave hon. Members with one thought before we divide: do we want this Chamber to be the centre of the political life of the nation, or should we surrender to the 24-hour news media?

Question put.

18:48

Division 407

Ayes: 119

---

Labour: 98
Conservative: 15
Scottish National Party: 2
Plaid Cymru: 2
Social Democratic & Labour Party: 1
Liberal Democrat: 1
Green Party: 1

Noes: 228

---

Conservative: 195
Liberal Democrat: 33

UK Extradition Arrangements

Monday 5th December 2011 Commons Chamber

[Relevant document: The Fifteenth Report from the Joint Committee on Human Rights, The Human Rights Implications of UK Extradition Policy, HC 767.]

19:01

[Mr Dominic Raab (Esher and Walton) (Con)]

I beg to move,

That this House calls upon the Government to reform the UK’s extradition arrangements to strengthen the protection of British citizens by introducing as a matter of urgency a Bill to enact the safeguards recommended by the Joint Committee on Human Rights in its Fifteenth Report, HC 767, and by pursuing such amendments to the UK-US Extradition Treaty 2003 and the EU Council Framework Decision 2002 on the European Arrest Warrant as are necessary in order to give effect to such recommendations.

First, may I thank the Backbench Business Committee chaired by the hon. Member for North East Derbyshire (Natascha Engel) for granting this debate? Her Committee is proving to be a shot in the arm for Parliament and our democracy. I also wish to thank the cross-party sponsors of the motion, the right hon. and learned Member for North East Fife (Sir Menzies Campbell), the Chairs of the Joint Committee on Human Rights and the Home Affairs Committee, and the many, many MPs on all sides of the House who signed and support the motion.

The debate was scheduled at relatively short notice, so the right hon. and learned Member for North East Fife and the Chair of the Home Affairs Committee are not here. The right hon. and learned Member for North East Fife is leading a parliamentary delegation in Washington. The Chair of the Home Affairs Committee is also engaged but will join the debate later. Both spoke passionately in the Westminster Hall debate on 24 November. Both asked that I reiterate their firm support for the motion this evening.

The issue before us is technical and legalistic but, at its core, it is about the price we place on the liberty of our citizens, and the value we ascribe to that cornerstone of British justice, innocent until proven guilty. It is not about abolishing extradition, which is vital to international efforts in relation to law enforcement. It is about whether, in taking the fight to the terrorists and the serious criminals after 9/11, the pendulum swung too far the other way. I want to praise the Minister and the coalition for their efforts to defend our freedoms and their achievements to date, and for taking seriously the case for extradition reform. My purpose today is to encourage their best instincts and inject a dose of common sense into the blunt extradition regime that we now have in place.

What went wrong? Let us take, first, the UK-US treaty of 2003. Much has been made of the different evidential thresholds. The review by Sir Scott Baker concluded that there was “no significant difference” between the two tests, probable cause and reasonable suspicion. For my part, I do not believe there is a massive difference between the paper legal tests, but that does not mean that their operation is symmetrical. As Alun Jones QC, who represented the Spanish Government during the Pinochet case, argued and points out in The Daily Telegraph today, an American citizen who is subject to an extradition warrant in the US has the constitutional safeguard that a judge must examine the evidence. In this country, a short recitation of the allegations suffices. That is a very real and important imbalance.

[Richard Ottaway (Croydon South) (Con)]

I am grateful to the hon. Gentleman. He says that he believes the evidential test to be higher in the USA than it is in the United Kingdom. Will he acknowledge, however, that the United States has not refused a single request since the treaty was introduced?

[Mr Raab]

I thank the hon. Gentleman for his intervention. I will take his word on that data, but the key distinction that I am making is between the paper legal test and how it actually works. We are not going to be ivory tower academic lawyers about this. Let us understand the impact on the people affected.

[Mr David Davis (Haltemprice and Howden) (Con)]

Let me correct the record. The Americans may not have refused any British applications for extradition, but they have refused to provide witnesses in other countries’ cases, which has led to broken trials.

[Mr Raab]

I thank the right hon. Gentleman for that clarification.

In practical terms the arrangements are unbalanced too. On the latest data available—I thank the Immigration Minister for his letter correcting earlier replies to parliamentary questions—29 UK nationals or dual nationals were extradited from Britain to the US since 2004. Five Americans were extradited from the US to Britain.

Obviously, states extradite their own nationals and third parties as well, but we in the House are rightly concerned about the treatment of those removed from the home country. In front of the Foreign Affairs Committee, the US ambassador disputed some of the earlier data that I spoke to in the Westminster Hall debate, complaining about untrue accusations being made by MPs and adding:

“The constant use of skewed arguments and wilful distortion of the facts by some to advance their own agendas remains of great concern to the United States”.

If there is any dispute about the facts it is not with me or any Member of this House, but with Ministers from the previous Government who failed to record consistently data on the issue between 2004 and 2007. I emphasise that all the figures cited today and in the previous debate were from Government replies to parliamentary questions. Neither the ambassador nor the US embassy, when I later followed up, were able to correct the figures with data based on their own records, so I find it regrettable that the charge of

“wilful distortion of the facts”

is being bandied around without His Excellency being in command of a few of his own.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

I am greatly enjoying what my hon. Friend is saying. I am a thorough supporter of the idea that the extradition rules should be reviewed, but I am still grappling, in the American case, with the difference between the two tests. Will he give us a sense of how they might come apart?

[Mr Raab]

The fundamental question is the difference between reasonable suspicion and probable cause. As paper tests, I do not think there is an enormous amount of difference between them, but as Alun Jones QC, whose article in The Daily Telegraph I commend, has spelled out, the practical operation—the judicial scrutiny that is available in the US because of the US constitutional guarantees—is higher. That is the key difference.

For all the talk of the evidential burden and the question of reciprocity, in my view, the critical issue in the US arrangements is forum. That is the label for how one decides where, in cross-border cases, the appropriate jurisdiction lies. The Gary McKinnon case is the leading case attracting great controversy at present. At root it is about the injustice in dispatching someone with Asperger’s syndrome hundreds of miles from home on allegations of computer hacking when he was apparently searching for unidentified flying objects. Gary McKinnon should not be treated like some gangland mobster or al-Qaeda mastermind.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I congratulate the hon. Gentleman on his efforts to secure the debate. Does he agree that whatever the outcome of the debate tonight, it would be helpful if the Government Front-Bench team gave us an update on the Gary McKinnon and Babar Ahmad cases, given that they have been so closely involved in them in the past?

[Mr Raab]

I thank the hon. Gentleman. It would certainly be useful to have an update on the cases that have attracted so much limelight and controversy.

More generally, we ought to have some discretion in this country to prosecute such cross-border cases here. Jurisdiction ought to be decided transparently, by independent courts, according to clear legal rules, not by prosecutors haggling behind closed doors. That is why the idea of guidelines for prosecutors does not go far enough. Of course, the legislation is already in place under the Police and Justice Act 2006. Let us bring it into force and take the political heat out of these cases, which I respectfully suggest would be in the interests of both countries. The previous Government enacted that legislation, so it is difficult to understand why Labour Front Benchers might seek to block it by opposing the motion.

[Stephen Timms (East Ham) (Lab)]

Many constituents have raised with me the Babar Ahmad case, which my hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe) mentioned. Will the hon. Gentleman clarify what effect he understands his motion, if agreed to, will have on pending cases, as opposed to future cases?

[Mr Raab]

I thank the right hon. Gentleman for his question. The short answer is that it is not clear. There has been talk about whether it might have some impact on the Babar Ahmad case, and indeed the Gary McKinnon case, but the truth is that it is not clear, and from this position I cannot give legal advice on individual cases.

[Steve Baker (Wycombe) (Con)]

My hon. Friend makes his case with great erudition and I have every admiration for him, but I would like to return to something he said earlier about the practical import of the matter. Does he agree that, whatever the measure’s impact, it is essential that never again must anyone spend seven years in prison awaiting extradition?

[Mr Raab]

My hon. Friend is of course right. That must be a point of principle, even when serious allegations have been laid.

The proposed change in the law might not even necessitate amendment of the treaty. Nevertheless, given its disproportionate value to our American friends, it is inconceivable that they would refuse if pressed to change the treaty. I also note that in the US’s extradition treaties with Brazil, Mexico and Australia, to name a few, those countries retain the right to decline extradition in those and far wider circumstances as it affects their nationals. Is it so unreasonable for Britain, a stalwart ally, to ask for that rather modest adjustment?

[Caroline Lucas (Brighton, Pavilion) (Green)]

With regard to an earlier intervention, it might be helpful to the House if I explained that the legal advice I have received—I know that there is plenty of legal advice on all sides—indicates that if it can be demonstrated that there were original flaws in the Babar Ahmad case, as I believe it can, the outcome of the vote could be particularly relevant to that case.

[Mr Raab]

I thank the hon. Lady for shedding light on some of the legal advice on that.

In my view, the regime in place under the European arrest warrant suffers from far more serious and widespread flaws than the UK-US arrangements, despite the important concerns that have been raised in that regard. If we consider the appalling treatment of Andrew Symeou, we will see the egregious nature of the flaws in the system. Greek police beat identical statements out of witnesses, which were later retracted, and Andrew spent practically a year in appalling prison conditions. He was left with a flea-ridden blanket in a baking-hot cell crawling with cockroaches and was abused by guards. He witnessed a prisoner being beaten to death for drug money. The trial proceeded at a crawl, with translators who spoke little English. Eventually he was cleared after a two-year ordeal.

[Nick de Bois (Enfield North) (Con)]

My hon. Friend is making an excellent argument. He refers to my constituent, Andrew Symeou. Not only did Andrew go through all that before eventually being freed, but the human price his family paid was shocking. They had to put their lives on hold for up to four years, including two years in Greece.

[Mr Raab]

I thank my hon. Friend for his intervention. Andrew’s father, Frank, gave evidence to the Joint Committee on Human Rights, and I am sure that we will hear from the Chair of the Committee later. The damage done and the human suffering not only to the direct victims, but to their families, are very clear. One of the major flaws of the Baker review is that it did not talk to or take evidence from the victims or their representatives.

[Jesse Norman]

Further to the point about the case of Andrew Symeou, when the European arrest warrant was introduced, did the introducing authorities look at the standards of law, order and punishment across the European countries in order to assure themselves that such conditions could not occur?

[Mr Raab]

I thank my hon. Friend for his intervention. I will move on to the level of scrutiny later, but the short answer is that the level in that case was not nearly high enough. The question today is whether we in this House have the will to stand up and ensure that the trauma of the Symeou case and many others is not inflicted on other innocent people. Let us be very clear that Symeou was innocent, as are many of the victims under the European arrest warrant.

The Symeou case exposes the fatal flaw in the European arrest warrant. Fast-track extradition in the EU—I think this will answer my hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman)—is based on a leap of faith and an assumption that all European justice systems are of a decent standard. That assumption is a sham. The justice systems in many European countries are well below any acceptable minimum standard. The Baker review proposed no safeguards to prevent a repeat of such miscarriages of justice. The report expressed the aspiration that penal conditions and justice systems across Europe will get better in time. In fact, standards of justice in some of the countries concerned are getting worse. According to Transparency International’s corruption perception index—just one benchmark, but an important one—corruption is getting worse in Greece, Hungary, Italy and Bulgaria. Even if standards of justice improve across Europe, as we all hope they will, our duty is to protect our citizens today, not in five or 10 years’ time. That is why it is important to take action now and not accept the “hit and hope” counsel of the Baker review.

The Baker review failed to take evidence directly from the victims and hear about the trauma that innocent people and their families have been through. In contrast, the Joint Committee on Human Rights, chaired by the hon. Member for Aberavon (Dr Francis), took evidence from a range of victims, including Frank Symeou, Deborah Dark, Michael Turner and Edmond Arapi.

[Angie Bray (Ealing Central and Acton) (Con)]

I am very much in sympathy with what my hon. Friend is saying. What is the balance between the number of Europeans who are extradited to the UK and the number of British citizens who are extradited to other European countries?

[Mr Raab]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. The hon. Gentleman has been very generous in giving way, but before he replies I gently remind him of the time limit that will apply in the debate and that his introductory remarks were supposed to take about 10 to 15 minutes.

[Mr Raab]

Thank you, Madam Deputy Speaker. I will make progress. The short answer to my hon. Friend the Member for Ealing Central and Acton (Angie Bray) is that I am moving on to that point.

Each of the victims had a story to tell about the Kafkaesque operation of the European arrest warrant. In none of those cases have any alleged crimes been upheld, and in this country I believe that we still call that innocent. In the case of Michael Turner, a business man accused of defrauding administration fees in Hungary, six years after the alleged offence took place Hungarian prosecutors have still not even charged him with any crime whatever. That warrant was a fishing expedition—no more, no less. If we do not put in place some basic check as the tide of warrants rises, there will be more of those injustices. The case for reform is overwhelming and the starting point should be the recommendations of the Joint Committee. No one is talking about tearing up the European arrest warrant altogether; we are talking about adding some safeguards enumerated in the report. If we do not put some basic checks in place, we are inviting worse to come.

To answer my hon. Friend the Member for Ealing Central and Acton, according the EU Council Secretariat Britain now receives a third of all European arrest warrants, four times more than France and 15 times more than Poland. The number of surrenders is rising. In 2004, 5 British citizens were surrendered in a year, but last year the figure rose to one a week. The case for reform is clear. We must put in place some basic checks so that we can ensure that the innocent are not swept along with those whom we of course want brought to justice.

It is important to stress that no one is suggesting that we should let criminals go free. We want the introduction of basic safeguards. They might add a small delay in some cases, but they will not prevent a single criminal being brought to justice. Let us be crystal clear that there is no law enforcement dividend from selling out the innocent. The motion before us calls on the Government to introduce legislation to remedy the situation. Of course Parliament cannot tie its own hands. The JCHR recommendations should be the benchmark and any legislation must go through proper scrutiny procedures.

At the international level, the motion calls on the Government to pursue renegotiation of the arrangements with our American and European partners. The legislature is not demanding the impossible of the Executive. I hope that the Opposition will support us in this. The Leader of the Opposition has strenuously made the case, with regard to civil liberties, that:

“We should always take the greatest care in protecting them… too often we seemed casual about them. I won’t let the Tories or the Liberals take ownership of the British tradition of liberty.”

Those are fine words that he will be held to this evening.

I acknowledge the work of the Baker review. Judges and lawyers can give their legal opinions, but ultimately it is Members of this House, as elected law makers, who will decide. Each of us bears the responsibility to protect the liberty of our citizens and defend British justice, and I commend the motion to the House.

[Several hon. Members]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. There are time constraints on this debate, and a large number of Members—as you can see, if you would like to resume your seats—wish to take part. Therefore, there is going to be an eight-minute time limit on Back Benchers’ speeches from now, but that will have to be reviewed if we look as if we are not going to get in every contribution.

19:20

[Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab)]

I congratulate the hon. Member for Esher and Walton (Mr Raab) on obtaining the debate. I shall try to respond briefly in the spirit of accord that we have created over the past few days, including on the broadcast media.

I had the unenviable task of agreeing the framework agreement on the European arrest warrant and the renewed treaty with the United States. When someone has Baroness Helena Kennedy and the Daily Mail on their back, they really do need to be on the ball, so I have re-read a lot of material, including Justice Scott Baker’s review, and it is worth those who follow parliamentary debates getting on the website and taking a good look at it.

The review may have flaws, but it is an extraordinarily good examination of precisely what was agreed, what has happened and, therefore, the reality of decisions taken and how they compare, for instance, with the Extradition Act 1989 and European convention rights, which are currently being tested by Babar Ahmad, because his case has gone to Strasbourg. In the case of Gary McKinnon, a review of the medical evidence is taking place for a report back to the Home Secretary, so high-profile cases are being dealt with almost outside, and in addition to, the procedure that we are debating tonight. In other words, the process is being exhausted and carried further, as it should be in cases of controversy and in extenuating circumstances.

[Mr David Burrowes (Enfield, Southgate) (Con)]

The right hon. Gentleman raises the issue of Gary McKinnon, my constituent, and makes a new point, because I understand that he made representations for Mr McKinnon to stand trial via a TV link from this country and, if convicted, to serve his sentence here. Does that not make the case for a forum bar, which would enable such considerations to be transparent, rather than conducted perhaps privately, as the previous Home Secretary did?

[Mr Blunkett]

The forum bar carries forward convention rights and changes the balance, as Scott Baker’s review indicates. Although I do not disagree with a great deal of the report by the Joint Committee on Human Rights, I note that elements of it would not only prolong the process—it has been mentioned already that some people have been awaiting extradition for a very long time—but alter the balance that we are trying to achieve.

If I were negotiating the 2003 treaty and the accompanying Extradition Act 2003 again, I would want a codicil, detailing alongside the treaty the nature of the process in order to assure people that there was a clear balance between the processes adopted in the United States and here.

In 2009 and 2010, I had the opportunity, which I took up privately, to visit the US Department of Justice. I kept it private for two years, because, in reporting back to the Home and Justice Secretaries under the previous and current Governments, I felt that there was some progress to be made by stating the views of the Department of Justice, as indicated to me, on the possibility of taking decisions about any trial, the nature of any sentence and whether, if applied, it might be served in this country.

Those are difficult issues, because we should not presume that somebody would be found guilty. The hon. Member for Enfield, Southgate (Mr Burrowes) is close to Mr McKinnon’s case, so he will be familiar with Lord Justice Stanley Burnton’s commentary on it, and there is undoubtedly the major issue of medical evidence, which is under examination.

Let me deal briefly with where we should be going. We should return to the issues relating to the European arrest warrant, because, as we have just heard spelt out, extradition arrangements have been distorted in cases from eastern Europe to Greece, partly because there has not been a de minimis rule on sentences and, therefore, whether it applies; because people have been returned to—rather than dealt with originally—years after the case arose; and because EAWs have been presented to people outside the United Kingdom when no attempt has been made to serve a warrant inside. All those matters need reviewing for the sake of the sensible application of justice, because once people feel that justice is not being applied, as we have seen from campaigns and in tonight’s debate, justice is questioned.

On the American issue, however, I shall talk about not just balance, but the rule of law, because we must have sensible arrangements that do not rest on whether we think an individual’s case is a good one. The Americans quite rightly put to me, “What about Abu Hamza? Whose hands are going up for a type 1 diabetic who is a double amputee, and for his associate, who is alleged to be bipolar? Who feels they ought to run such campaigns on their behalf to stop extradition?” How do the United States see the issue when they are trying to ensure that principles are applied and a precedent not set which would then create complete havoc in the justice system? The rule of law has to apply equally and sensitively, but it has to include rules to which we can all adhere.

The NatWest three, or the Enron three as the Americans prefer to call them, were totally innocent according to their campaigns, and even I began to be convinced that they were, until of course they reached the United States and pleaded guilty.

[John Hemming (Birmingham, Yardley) (LD)]

The Enron three told me that if they pleaded not guilty in America and were found guilty they would get 35 years, but that if they pleaded guilty they would get five years. They were concerned about being forced into pleading guilty in America.

[Mr Blunkett]

That is often undertaken—albeit not to the degree that has just been described—in our court system to ensure that people can enter a plea bargain, so it is not unfamiliar to any of us.

[Charlie Elphicke (Dover) (Con)]

Will the right hon. Gentleman give way?

[Mr Blunkett]

I will not give way any more, because I will lose time.

On the American treaty, there is therefore room for negotiation on the side to take account of my central point: we live in an entirely different world with cyber- attacks. Cyber-attacks from our country on installations in our country can easily be dealt with, but cyber-attacks from a country on the installations or businesses of another country, such as the Pentagon, raise all sorts of issues about how we go forward.

There are rogue and emerging states in terms of cyber-attack and cyber-terrorism to which we would certainly not want to say, “Please would you try the individual in the state from which the attack took place,” and, as such attacks are trans-border and affect installations throughout the world, we need to sit down and work out how we deal with that entirely new eventuality, which affects people across the globe. If we do not, we will rue the day.

With an agreement between prosecuting authorities, it would be perfectly feasible to use video conferencing so that the accused could not only take part in the trial and be questioned, but view the trial and, if found guilty, serve their sentence in a friendly state, where everyone agreed that conditions were acceptable. Let us have the further review on the back of Scott Baker. We have had the review that people wanted, and they do not like it. By all means let us keep reviewing it, but let us do so with a degree of common sense and balance, in the spirit of this debate.

I am aware that there will not be a vote this evening. I know that the Government will take this seriously, but I also know that they will have to govern and they will have to do business with a friendly state where the judicial system is free, open and based on rights, and we should respect it as such.

19:30

[Mr David Davis (Haltemprice and Howden) (Con)]

It is a particular pleasure to follow the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett). He and I crossed swords many times when he was Home Secretary. I am not remotely surprised to hear his reasonable tone in this debate or to hear of his compassionate action on Gary McKinnon, as both are entirely in line with his character. What is more, I can understand only too clearly why he took the stance that he did in the early 2000s, because at that time the extradition situation around Europe and elsewhere was a mess, and it was sometimes very difficult to get people extradited from other countries. It is therefore wholly unsurprising that after 9/11 he took the action that he did. That does not mean that I agree with him about that action, but it is entirely understandable that it was taken. The House will not be surprised that I think it went too far because of, in my view, the pre-eminence of justice in this matter. There is a balance between justice and security, but security without justice is a very fragile security. It is our job to defend our lives and way of life, and in this respect I do not think that we have done so.

Unlike my hon. Friend the Member for Esher and Walton (Mr Raab), I do not speak as a criminal lawyer. What I am about to say is no doubt obvious to all criminal lawyers, but not necessarily so to the rest of us who are laymen. Let me make a simple point. In this country, we presume innocence. That has all sorts of implications that we do not think about most of the time. For example, it means that unless there is a threat to a jury, an ongoing threat to the public, or a risk of absconding, we generally give bail—we do not imprison people who are awaiting trial if we can avoid it. If we do imprison someone, we put them on remand, where they are treated as innocent. They wear their own clothes; they are not made to work; they are called “Sir”: all sorts of things apply to prisoners on remand that do not apply to other prisoners, either in this country or, indeed, abroad. The presumption of innocence has a distinct effect on how we treat people.

Let us compare that with people who are extradited. They feel as though they have been deported. They are in a foreign prison, often with lower standards; my hon. Friend referred to that in terms of Greece. They are not only in a different culture, but often surrounded by people speaking a different language. They are, in effect, in psychological isolation; one might think of it as psychological solitary. They are often thousands of miles away from their family. They are viewed as an alien in the institution in which they are held. That, of itself, is a very serious punishment of people we are presuming innocent at this stage of the process.

In addition, such people face a different justice system; I will describe it only as lightly as that. As was alluded to in the context of the NatWest three, this is a justice system that is not above saying, “Here is a plea bargain. Either you plead guilty or you’re going to stay in this nasty Texan jail for the next two years while we think up the case against you.” That is different from what they face here—and, frankly, I do not think that it is justice. At worst, it is a justice system that is actually corrupt, as we have seen in Greece. Although I understand the ex-Home Secretary’s point of view, this was not new to us even when the EAW was created. I had a constituent who was one of the plane spotters and who was locked up, in effect, for political reasons and not given what I would judge to be anything like a fair trial—and, of course, he was tried for doing something that was not illegal in this country. That is, at this stage, how we treat people who are presumed innocent under our system.

[John Hemming]

I very much agree with my right hon. Friend. Does he agree that that supports a strong argument that, where possible, any prosecutions where there are alternative forums should be in the home forum?

[Mr Davis]

I entirely agree. That is very much the thrust of what I will say in the next few minutes.

Let me come back to the thought process behind this—the intent behind what the then Home Secretary was trying to achieve, with which, as I said, I sympathise. The EAW, the extradition treaty and the 2003 Act were all aimed at dealing with terrorism. What has been the consequence of that? A parliamentary answer told us that between 2003 and 2009 there were 63 extraditions to the USA, of which precisely one involved a terrorist. A number of the others involved serious crimes—although I have to wonder about the two people who were extradited for “satellite signal theft”; Rupert Murdoch’s reach is obviously longer than I thought—but there was only one terrorist extradition. When I looked at it the other way around—extraditions from the Americans to us—I was unable to find any record of terrorists being extradited here. I asked people in the Library to look at it for me. They searched through all the available records and could not find any examples. We should keep in mind that the rather draconian process that we have, which was put in place to defend us against terrorism, does not appear to have had much impact in that respect. In practice, the outcome is much more mundane. The truth of the matter is that we will have far more Gary McKinnons extradited than Osama bin Ladens.

Because of the terrorist problem, the international crime problem, and the pressure for a fast agreement, we have left out some proper protections in the agreements that we have made, particularly with America. Debating this when he was in opposition, the current Attorney-General said that

“we chose in the 2003 Act, bizarrely, to get rid of the protection that existed in article 7(1) of the 1957 convention on extradition, which allowed an extradition to be prevented if the person was being sent to an inappropriate forum for the trial…Every other country has that safeguard. The Irish, who regard themselves as close partners and friends of the United States, and who have an extradition arrangement, have a forum clause in their treaty, which enables the question of the appropriate forum to be considered.”—[Official Report, 12 July 2006; Vol. 448, c. 1419.]

He is right. Not only the Irish, but Norway, Switzerland, Holland, France and Germany all have such provision. In fact, the Germans’ law will not allow the extradition of any of their citizens outside their country. Similarly, two Commonwealth countries—Australia and New Zealand, two of America’s closest allies in the war on terror—have total discretion over who among their own nationals they allow to be extradited. The idea that we are somehow at odds with the accepted—and, indeed, acceptable—approach among the western nations in their battle with terrorism is nonsense.

[Mr Blunkett]

On 16 December 2004, the idea of treating one’s nationals, as opposed to overseas citizens, differently in this country was ruled out by the House of Lords. I should know, because section 4 of the Anti-terrorism, Crime and Security Act 2001 was at stake.

[Mr Davis]

I am sure that the right hon. Gentleman is right. My point is that we are dealing with the situation as it is now and what is acceptable among the anti-terrorist community, if I might put it in those terms, and I am afraid that what is acceptable is something far tougher than we have been claiming.

Let me look at the other side—American reciprocity. Much of this is about reciprocity, so how have the Americans behaved? My hon. Friend the Member for Croydon South (Richard Ottaway), who is the Chairman of the Foreign Affairs Committee, asked how many cases have been refused. I have worked in the murky world of international relations in the Foreign Office, and I know that the number of requests refused is zero—but of course it does not work like that. If one wants to turn something down, one rings up one’s ally and says, “Would you mind withdrawing it?” The US subsequently withdrew 5% of its applications, whereas we withdrew 20% of ours. I wonder why. I do not think that the Americans can claim a very great moral high ground in terms of reciprocity. Indeed, the attitude taken to that by many countries, including Canada, Spain, France, Germany and Italy, has traditionally been much more robust than ours.

So what should we do? My hon. Friend the Member for Esher and Walton has made this point in some detail, so I will be quick. We should change the forum arrangements. They should pay proper attention to not accidentally punishing the innocent or over-punishing those guilty of minor crimes. I do not know why the Americans should think it better for Gary McKinnon to spend two years in an American prison than for two American witnesses to spend two weeks in a hotel in Britain while the case is tried. We should have prima facie evidence requirements so that we do not repeat the Symeou experience of somebody spending a year in a foreign prison before eventually being proven innocent. Finally, we should introduce a filter for cases that are acceptable using dual criminality, seriousness and timeliness, so that justice does not become so heavy handed that it tips over into being injustice.

19:40

[Dr Hywel Francis (Aberavon) (Lab)]

It is a great pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis) and my right hon. Friend the Member for Sheffield, Brightside and Hillsborough (Mr Blunkett). It is striking that they both spoke, in essence, about what I will concentrate on this evening, which is the way in which the debate in Westminster Hall and the debate this evening have arrived at a consensus for reform on this major issue.

I congratulate the hon. Member for Esher and Walton (Mr Raab) on securing this debate, just as I congratulated him two weeks ago when he secured the debate in Westminster Hall. He is a stalwart member of the Joint Committee on Human Rights and he is beginning to call me comrade. I also thank the Backbench Business Committee for agreeing to this debate, following the recent and successful Westminster Hall debate, which showed such impressive, unanimous support for extradition reform and for strengthening the human rights of UK citizens, as recommended in my Committee’s report earlier this year.

I remind Members that this debate is about human rights. My purpose is simple: it is to give the motion my full support as Chair of the Joint Committee on Human Rights. I do so officially on behalf of the Joint Committee. I confirm that the motion embraces all the key recommendations of the Committee’s report, which was adopted unanimously. I got the sense that the two previous contributions endorsed the recommendations of my Committee. We await the Government’s response to our report and to the Baker review. Perhaps we will get a response this evening.

I respectfully suggest that there is a way forward for the Government. I believe that it will emerge in this debate, if it has not done so already. The debate will draw out the positives of the report by the Joint Committee on Human Rights and the Baker review. Notwithstanding the criticisms of the Baker review, I think it is fair to say that there is a degree of consensus between the two. Without going into the details, I believe that there is consensus on legal representation, proportionality, a road map for suspects’ rights, the removal of European arrest warrant alerts, excessive pre-trial detention, time limits, people serving sentences in the UK, which many speakers have mentioned, and the Secretary of State’s discretion. The Government should see the merit of proceeding with that consensus as a starting point.

Beyond that, the Government should look carefully at the big fairness and human rights issues on which my Committee is more unequivocal and forthright, such as rebalancing the US-UK treaty, mistaken identity and the use—or, as I would say, the misuse—of the European arrest warrant as an aid to investigation, which is sometimes a travesty of justice.

I cannot recall a time in the decade since I entered the House when there has been such unanimity across the Back Benches. For that unanimity to be achieved on such a major policy area as the human rights of our citizens is gratifying to me as the Chair of the Joint Committee on Human Rights, particularly given that extradition engages so many fundamental human rights, such as the prohibition of torture and inhuman or degrading treatment, the right to liberty and security, the prohibition of discrimination, the right to respect for private and family life and, most fundamentally of all, the right to a fair trial. I believe that all Members are united in striving to achieve those fundamental human rights and long may that continue, throughout the length of this Parliament and beyond. I will end, Madam Deputy Speaker, by paraphrasing one of your great heroes and a fellow feminist, Eleanor Roosevelt, who was a great champion of human rights. She asked: if we do not defend human rights in our own back yard, how on earth can we fight for human rights universally?

19:46

[Conor Burns (Bournemouth West) (Con)]

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this debate. He has shown his usual tenacity and principle, which are becoming his hallmark.

It is a bit of a relief, on this one-line Whip, to escape the burdens of PPS-dom and speak out on something about which I have felt passionately for some time. I have recently written a pamphlet entitled “The case against the European arrest warrant”, which will be published shortly.

I will not trespass on my time by speaking a lot about the United States, except to place on the record my support and sympathy for Gary McKinnon and his family, who in my judgment have been badly treated. The public share that view strongly.

I will concentrate on the European arrest warrant. My hon. Friend’s motion is moderate in calling on the Government

“to reform the UK’s extradition arrangements to strengthen the protection of British citizens”.

As the hon. Member for Aberavon (Dr Francis) said, there is an emerging consensus in this House that that is something the Government should do.

The political and emotional context in which the European arrest warrant emerged after the desperate events in New York on 11 September has been alluded to. In evidence to the Joint Committee on Human Rights at that time, the Liberal Democrat MEP Sir Graham Watson, who was chairman of the European Parliament’s justice and home affairs committee, said that

“the proposal would still be on a shelf gathering dust if it hadn’t been for the events in New York… Mr. Bin Laden helped make it a reality”.

There is a great deal of truth to that.

The workability of the European arrest warrant hinges on the principle of reciprocity between our courts and the courts of other countries. I will not dwell on this point because my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Esher and Walton spoke passionately about why that is not a reality.

Another element that is central to making the European arrest warrant work is proportionality in its application. On 9 January 2007, the presidency of the European Council delivered a communiqué to the body’s working party on co-operation in criminal matters, examining the application of the proportionality principle in matters relating to the European arrest warrant. Article 5 of the pre-Lisbon treaty on the functioning of the European Union stated that the proportionality principle is applied in respect of the four freedoms of the European Union, chiefly the free movement of goods, services, persons and capital. The treaty stated, however, that

“any action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty.”

It is surely clear that in its application, the European arrest warrant has gone well beyond proportional use.

Let us look at some of the examples of warrants being issued. They have been issued in respect of offences such as the possession of 0.4 grams of cannabis, 1.5 grams of marijuana or three ecstasy tablets, the theft of two car tyres and even the theft of a piglet. There was also the case of a person arrested while driving a car with a blood alcohol level of 0.81 mg, compared with a UK limit of 0.80 mg. The problem has been recognised even by the European Commissioner with responsibility for justice, fundamental rights and citizenship. She stated last November that

“European arrest warrants should not be issued mechanically, or automatically, for crimes that are not very serious such as bicycle theft.”

Then there is the question of the number of European arrest warrants issued, which is also central to the application of the system. In 2009, the total number of arrest warrants issued was 14,789. My hon. Friend the Member for Esher and Walton will doubtless be aware that Bulgaria, Hungary and Italy were unable to provide figures for the number of arrest warrants issued in their countries. That backs up his point about the differences between systems. Poland issued 4,844, and France, a similar-sized country to the United Kingdom, issued 1,240. In the United Kingdom, we issued a mere 220.

We can also examine where those citizens were living when the warrants were issued. Despite the United Kingdom being in the bottom quarter of issuers of warrants, those issued against people in the UK represented 38.8% of all the warrants issued across the whole European Union.

[Mr David Davis]

Top of the league.

[Conor Burns]

Indeed.

There is a fundamental question whether the European arrest warrant is compatible with habeas corpus as we understand it in this country. The excellent Lord Vinson of Roddam Dene challenged the Home Office Minister then responsible in the other place, saying:

“The fact remains that hundreds of UK citizens are being compelled to appear before any EU court without the merit of the often frivolous charges being first assessed. They can be locked up without pre-trial. Is she not concerned that this totally overrides the ancient liberties of the British citizen enshrined in Magna Carta and habeas corpus? Will she assure the House that this will be resolved?”

The then Minister, Baroness Neville-Jones, responded:

“My Lords, the Government are concerned…with the disproportionate use of the European arrest warrant for trivial purposes.”—[Official Report, House of Lords, 26 January 2011; Vol. 724, c. 955-56.]

That is another example of the consensus that is emerging across Parliament.

Then there is the question of the principle of dual criminality. Under the European arrest warrant, British citizens or those living in the United Kingdom can be extradited to another European country for crimes that may not necessarily even be offences under United Kingdom law. That concern was raised by the Home Affairs Committee in its report on the application of the European arrest warrant of November 2002. The Committee stated that it had

“grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the member states of the EU makes it difficult for us to be…confident…that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute”

a crime in the UK. The fact that the European arrest warrant could necessitate a British court extraditing a British citizen for something that would not be illegal in the UK represents an entirely unacceptable incursion into our British criminal justice system.

I am not a lawyer. I think my constituents regard being a politician as crime enough without being a lawyer as well, but to be a law-maker one does not have to be a lawyer. Most of my constituents are not lawyers either, but they smell that something is not right in the exercise of the European arrest warrant. They want the British Government to stand up for British citizens, and they want the freedoms and protections under the law that we have cherished for years.

19:54

[Mr Andrew Smith (Oxford East) (Lab)]

I join in the congratulations given to the hon. Member for Esher and Walton (Mr Raab) and other colleagues on securing the debate. I believe that our extradition procedures need to be kept under review and protection afforded against the abuses and potential abuses that others have mentioned.

Like many constituents who have contacted me, I sympathise with Gary McKinnon for his plight and agree that if he is to face trial, it would be much better if it could be in the United Kingdom, where the alleged offence occurred. I take the points that my right hon. Friend the Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) made about the wider challenges that we face in the global context, and about how we all have to focus on addressing those challenges.

I also wish to add my voice to those of Members who have raised the case of Babar Ahmad. It cannot be acceptable that someone is held without trial for as long as he has been. To pick up on a point that was made earlier, it is encouraging that if there is a change to the law, it will affect pending cases, so he will no longer face the uncertainty of not knowing what will happen to him, or even when he will find out what will happen to him.

Given the limited time, I want to focus on the case of one of my constituents, Mr Benny Wenda. Benny was granted refugee status in the United Kingdom in 2003 as a result of his well-founded fears of persecution by the Indonesian Government, who disapprove of his activities advocating self-determination for the West Papuan people. He has subsequently been granted British citizenship. In granting him refugee status and then citizenship, the British Government accepted a protective duty towards Benny, but they now appear to be refusing to defend him against the same Government from whom he was granted protection in the first place.

The Indonesian Government have issued an Interpol red notice against Benny for the alleged crimes that he was accused of when he first came to the UK, which will have been considered when he was granted refugee status. Yet a letter that I have had from the Minister of State, Foreign and Commonwealth Office, the hon. Member for Taunton Deane (Mr Browne), states that the Government will not comment on the red notice; will not confirm or deny the existence of an extradition request; will not preclude the possibility of extradition; will not contact other Governments to ask whether they intend to arrest Benny as he travels to make the case for West Papuan self-determination throughout the world; and will not even contact the Indonesian Government to make a complaint about their continued pressure on him. The letter states:

“The issue of a red notice is a matter for the issuing state”,

but it does not appear to accept that the protection of a British citizen is very much a matter for the state of which he is a citizen.

I ask the Minister for Immigration, who will be responding to the debate, whether there is any situation in which he would give an undertaking not to extradite a refugee to the country from which he or she had been granted protection. I suggest that it would not interfere with the sovereignty of other nations simply to ask them whether they would arrest someone, in this instance Benny Wenda, if they stepped on their soil. For the UK Government to refuse to ask that of a country that my constituent would have legitimate reason to visit seems to me an abdication of their most basic responsibility—to protect their own citizens.

I ask the Government to reconsider what seems to me to be a hastily cobbled together stance on the matter and accept a meeting of Ministers from the Home Office and Foreign Office, Benny, his representatives and me specifically to discuss the red notice. My constituent’s example shows how other Governments, including repressive regimes, can use or abuse the red notice system to intimidate refugees and inhibit their freedom of travel and freedom of speech. As others have said, our Government should stand up for British citizens who are threatened in such a way, and I urge them to do so in this case.

19:59

[Mike Crockart (Edinburgh West) (LD)]

I, too, begin by welcoming the debate and congratulating my hon. Friend the Member for Esher and Walton (Mr Raab) on securing it. Last week’s debate in Westminster Hall and the number of hon. Members present tonight show the strength of feeling on this important issue. It is absolutely right that it is debated on the Floor of the House.

Some 140,538 individuals have added their signature to the “Free Babar Ahmad” e-petition, which is rightly the catalyst for this debate, although the problem is much wider, as has been shown. I am glad that such cross-party support exists—even the Daily Mail, which I do not normally read, supports the campaign—but it was not always so. The Liberal Democrats have been vocal in our criticism of the lopsided extradition arrangements between Britain and the US for many years. Indeed, my hon. Friends the Members for Somerton and Frome (Mr Heath) and for Southport (John Pugh) were the only Members to vote against it in a scrutiny Committee. In 2006, we proposed amendments to the Extradition Act 2003 to protect the freedom and fair judicial treatment of British citizens, but, sadly, the previous Government refused to accept them.

I am pleased that the Liberal Democrats are acting on this issue in government and that my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell) will lead a Liberal Democrat review of UK-US extradition arrangements. I await the findings of his report with interest.

No one is denying that extradition remains a necessary process in pursuing the ends of justice. It is rightly founded on the concepts of reciprocity and mutual respect among jurisdictions, although it recognises differences between them. However, extradition also deals with the most basic human right—that of liberty—and as such we must ensure that it is not entered into lightly or without proper process and oversight.

The affect of extradition on that basic right has been examined in detail regularly and recently by the Joint Committee on Human Rights and other Committees of both Houses. Reform is now advocated by Members on both sides of the House, which is to be welcomed. Both in the House and outside, it is recognised that extradition has changed. The process altered significantly in the wake of 9/11, as my hon. Friend the Member for Esher and Walton said. Although the aim of such change was undoubtedly positive, the reality is that arrangements continue to be open to abuse.

A few high-profile cases have demonstrated that to all. The lack of discretion to allow the UK to decline extradition when the case should be prosecuted in the UK has become synonymous with the case of Gary McKinnon; problems with the European arrest warrant and trust in suitably high standards of justice in Europe are synonymous with the case of the British student Andrew Symeou; and the lack of a prima facie safeguard, previously an integral part of UK extradition law, is synonymous with the case of Babar Ahmad. High Court rulings even today give examples of further concerns, on, first, the definition of a “judicial authority” and whether that authority is truly independent; and, secondly, on whether extradition should be allowed when no charges have been laid, or whether it should be limited to being for the purpose of trial or sentence.

Those concerns add to the feeling that there is no reciprocal arrangement in practice. For every person extradited to Britain from the EU, we surrender nine back. We have surrendered 50% more of our citizens than the US. Today’s motion would implement the JCHR recommendations, which offer basic safeguards to prevent miscarriages of justice and deal explicitly with the concerns highlighted by those cases. The Committee suggests a forum clause that would allow UK courts to refuse extradition when an individual should be tried in our country; a requirement for any requesting country to show a prima facie case; and proportionality checks to ensure that EAWs are not issued for minor offences.

As well as proportionality, the presumption that human rights are respected equally in EU member states is another significant issue with EAWs. The JCHR was minded to agree that judges are reluctant to refuse extradition on human rights grounds because of that presumption. As such, we agreed with evidence given by Liberty that highlighted the clear difference between equal protection of all rights in practice and protection in law, which means that there is a need to give defendants the ability to rebut the presumption of equality.

The Committee is clear that we need to deal with significant EAW issues, even if that means renegotiation of the framework decision. I am heartened by the Government’s willingness to act on that.

[Charlie Elphicke]

My hon. Friend is making an excellent speech. Does he support the principle of renegotiating things in Europe to get the right balance in our relations with the EU?

[Mike Crockart]

I do indeed. That is exactly what the JCHR report asks for. It supports that unequivocally, as do I—[Hon. Members: “Hear, hear!”] That does not make me anti-European, however.

I am not saying that the use of EAWs has not been beneficial to the UK and Europe in the fight against serious and organised crime, or, to a certain degree, helpful in establishing a common area of freedom, security and justice, but we should not ignore the problems to support such advances.

The independent Baker review focused on five areas of extradition. Although I disagree with many of its findings, I share many of its points. On the Home Secretary’s power to extradite, I instinctively have grave reservations in giving Ministers further powers when the distinction between state and judiciary becomes blurred. I believe that human rights considerations are more appropriately examined by the judiciary rather than a Minister, with proper consideration of relevant case law.

The Baker review also calls for a strengthening of legal representation in both issuing and executing states; an improvement in the process for the removal of EAW alerts, which was highlighted by the dreadful treatment received by Deborah Dark; and the prevention of excessive pre-trial detention. As a side comment, I would say that seven years is almost certainly excessive. There is a degree of unanimity on the need to act on those points.

One fundamental consideration is lost in the detail: whether our constituents—British citizens—have sufficient protection in respect of their safety and human rights. As Liberty eloquently wrote in its 11 November letter to the Home Secretary, that is a balancing act:

“There is, of course, a balance to be struck in any system of extradition between the public interest in expeditious extradition to enable prosecution of crime and the provision of essential safeguards to ensure procedural fairness for the accused…the Extradition Act 2003 secures the former at the dangerous expense of the latter.”

I agree that the balance is wrong, and commend the Government’s willingness to re-address it and secure the fundamental rights of the nation’s citizens. However, I trust that the Minister will put a time scale on the willingness to act that is more precise than the one he articulated in last week’s debate. Such affronts to justice have waited too long. We must put them right and do so soon.

20:07

[Caroline Lucas (Brighton, Pavilion) (Green)]

Let me begin by congratulating the hon. Member for Esher and Walton (Mr Raab) on his role in securing this important debate.

The motion calls on the Government to introduce

“as a matter of urgency”

a Bill to enact the safeguards recommended by the Joint Committee on Human Rights in its recent report. The motion calls for urgent legislation rather than simply legislation because a number of British citizens face the risk of extradition at any moment—this is an urgent issue. Babar Ahmad’s father started a grass-roots e-petition with no formal organisation and no big newspaper backing, but none the less it garnered more than 140,000 signatures.

People signed the petition because they were horrified by the plight of Babar Ahmad, a British citizen who was detained in the UK for more than seven years without charge or trial. He faces extradition to the US with the prospect of solitary confinement for life in super-max conditions, which arguably amount to torture. Babar is not alone in his ordeal. The poet, Talha Ahsan, another UK citizen, is also being held—his case is related to Babar’s—without charge or trial under our shocking extradition arrangements. He is entering his sixth year of imprisonment.

Of course, such asymmetric extradition arrangements do not apply only in terrorism cases, and I put on record my deep concern about the Gary McKinnon case, but I want to focus on the case of Babar Ahmad. I pay tribute to the courage and bravery of the families of Babar and Talha in fighting for justice for their sons, and to their MP, the right hon. Member for Tooting (Sadiq Khan), who has worked to support them since their ordeal began.

I have long lobbied for the closure of Guantanamo Bay. As we approach its 10th anniversary, the cases of Talha and Babar remind us that one of the most fearful things about Guantanamo Bay—people being held without charge or trial—is happening on UK soil, right now, at the behest of the US.

In a debate in Westminster Hall last month, Members heard of the appalling circumstances of Babar Ahmad’s arrest in 2003 and the fact that he sustained at least 73 injuries for which he was awarded £60,000 compensation by the High Court in 2009. He is now in his eighth year at a top-security prison without charge. The allegations against him are serious. The US has alleged that Babar was running a website that solicited funds for terrorist organisations, including al-Qaeda and Chechen rebels. That is a grave accusation and there should of course be a trial. Indeed Babar and his family desperately want the case to come to trial so that they can clear his name. They want it to take place in the UK and not in the US partly because Babar is a British citizen and is accused of committing crimes in the UK.

[Jeremy Corbyn (Islington North) (Lab)]

I congratulate my hon. Friend on taking up this case and on what she is saying. Does she agree that if Babar Ahmad were to face trial in this country, it is likely that the case would collapse because of the way he has been treated, the conditions under which he has been held and the nature of the accusations that have been made against him throughout?

[Caroline Lucas]

I agree with the hon. Gentleman. I was explaining that Babar wants to stand trial here partly because he is a British citizen and partly because going to the US would separate him from his family, friends, and legal representatives, which would seriously undermine his ability to mount a strong defence.

Interestingly, I have seen extracts from the European Court interim decision on the cases of Babar and Talha. In paragraph 175, it is clear that the European Court has had from the UK Government an acknowledgement that they could be tried here, which runs counter to what is generally asserted. Moreover, Babar’s lawyers also point out that other comparable prosecutions are proceeding in the UK. Nevertheless, in July 2004 and December 2006, the CPS and the Attorney-General declared that there was insufficient evident to charge Babar Ahmad with any criminal offence under UK law and that he should therefore be extradited.

If it is agreed today that there should be a Bill and a new approach, it would be even more essential for there to be new prosecutorial decisions in these very disturbing cases. In Babar Ahmad’s case, it is my understanding that his lawyers are requesting a new prosecutorial decision on the basis that there has not been a proper one to date. That should mean that the changes that we are calling for today need not be retrospective but, rather, current in relation to these new prosecutorial decisions. Those decisions are needed because of these very disturbing cases in which it is clear that things have gone wrong.

The night before the debate on extradition in Westminster Hall, there was a shocking turn of events. Babar’s lawyers received a letter from the CPS that admitted for the first time that it was never given the evidence that was sent to the US, apart from a few documents. The bulk of the evidence was shipped straight to the US by the police. Astoundingly, although we had previously been led to believe that the CPS had viewed all the evidence and judged it insufficient to bring the case to trial in the UK, we now have a confession that it had not even seen all the evidence let alone investigated it properly. Quite simply, a proper decision has not been made on whether a prosecution can go ahead in the UK. That is shocking and it raises serious questions about why evidence that should have been given to the CPS was not and why Babar was not told about it. Who directed and authorised that circumvention of the CPS, apparently in deference to and at the behest of the US? Given the seriousness of what the CPS has told Babar Ahmad’s lawyers, we need not just new prosecutorial decisions but a full public inquiry into what has gone on in this case.

The second major failure of prosecutors relates to human rights. Decisions to prosecute or not to prosecute here should not be relinquished so easily in favour of the US. There are grave human rights implications that have not been properly taken into account. In these cases over whether and where to prosecute and whether to extradite, it is incredibly important for us to understand that the police, the CPS, the Home Office, the Foreign Office and the Attorney-General’s office are all bound to consider the implications of the Human Rights Act 1998 in relation to every one of their decisions. That means that it is extremely relevant that concern has already been expressed, both by the courts here and now by the European Court, that the human rights issues that lie at the heart of the ongoing consideration in Strasbourg clearly never even formed part of the CPS’s original decision in Babar’s case and that the evidence was almost immediately conveyed to the US.

That in itself demonstrates that there has been a failure in the fundamental duty of prosecutors, which has not been adequately addressed to date. We cannot and should not tell the CPS who to prosecute, but we can and we should tell it to do its job properly and to insist on it receiving and properly reviewing all the UK evidence.

Let me say a little more about the significance of the current role of the European Court in Babar’s case. The European Court of Human Rights has been wrestling with fundamental issues that relate not just to Babar Ahmad’s case but to many others for the past four years. The final decision is expected imminently. The European Court has been considering two key issues: whether the use of extreme isolation for prisoners in prisons in the US before trial and post-trial amounts to a violation of article 3 of the European convention on human rights—the article prohibiting torture—and whether the length of sentences in the US, in particular the imposition of life imprisonment without parole or of 80 to 100 years, also violates article 3 of the convention. Whether or not the European Court finds for the applicants, in which case the UK cannot extradite them as long as those two potential fates await them, it is shocking that things have come to this. Courts here and the court in Europe have expressed their concern that what faces UK citizens if they are extradited to the US in a number of cases might arguably constitute what the law defines as torture.

These cases raise, in the most fundamental way, a convergence of issues between whether these men should be prosecuted here and the extreme consequence of what would happen to them if they were extradited to the US. Now we have today’s debate. It is a matter of weeks before we hear the result of four years of anxious scrutiny by the European Court of Babar’s case. I ask hon. Members to support the motion that has been tabled today because it is a crucial opportunity for us to send a clear message to say that the extradition laws in this country need to be radically reformed. If we do not do that, we are failing in our most basic duty of protecting British citizens. That is why it is so significant that there has been huge Back-Bench support for this motion, and I hope that it will be demonstrated when it comes to a vote—if it does—later tonight.

20:16

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this debate and on the fierce advocacy that he has deployed both in his speech this evening and generally in relation to this issue. There have been a number of powerful contributions from both sides of the House. The contribution on the European arrest warrant from my hon. Friend the Member for Bournemouth West (Conor Burns) was particularly impressive. He said that he was not a lawyer and that being a politician was criminal enough in his constituency. All I can say is that I will not be taking my holiday in Bournemouth this year.

Extradition serves an extraordinarily useful function in the administration of criminal justice throughout the world. Merely fleeing a jurisdiction should not be equated with acquittal. It is very important that decent and proper extradition arrangements exist between civilised nations so that those who are accused of crimes, or at least of serious crimes, can be brought before the criminal courts of the jurisdiction in which those crimes are alleged to have been committed—provided of course that appropriate safeguards are in place, along the lines indicated by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), to recognise that those accused of crimes are not guilty of those crimes until such time as a jury, or in some cases a judicial body, has said so. There was nothing more inimical to justice than the spectre, after the end of the second world war, of many war criminals who were guilty of genocide being able to travel to jurisdictions where there were no extradition arrangements with European nations, and in those circumstances being able to evade justice for a considerable period. During the debate, we should not lose sight of the fact that there are victims of crime who are as much entitled to justice as those who are accused of crimes and who are in fact innocent.

As has been recognised in the debate—we have begun to reach a consensus on both sides of the House—a balance needs to be struck between, on one hand, the protection of the fundamental right of a citizen not to be extradited abroad if there are inadequate safeguards to protect that citizen from an unfair trial and, on the other, the need to prosecute very serious crimes. A number of principles pervade this area of law but, given the events at the beginning of this century that led to the Extradition Act 2003, sufficient regard might not have been paid to them.

The first of those principles is that trivial offences should not trigger extradition at all. In circumstances such as some of those alluded to by my hon. Friend the Member for Bournemouth West, it is entirely inappropriate that any citizen be removed from his own jurisdiction, taken to a foreign place, perhaps not granted bail and locked up, and prosecuted for something that, on the face of things, is minor.

The second important principle is that of speciality, of which no mention has been made during this debate but which requires that the only offences with which someone extradited to a foreign jurisdiction can be charged be those for which he has been extradited in the first place. Two of the problems in this area that perhaps have not been properly grappled with by the Extradition Act are the absence of enforceable assurances from some countries seeking extradition from this country and the fact that the Home Secretary and the courts cannot take the principle of speciality properly into account in those circumstances.

There is also the principle that there should not be double jeopardy—that nobody should be tried twice for the same offence—save perhaps in limited circumstances. Again, I do not think that any mention has been made of that in the debate. Furthermore, there are principles surrounding the protection of people’s human rights—the principle that we do not require those domiciled in this country, regardless of whether they are citizens, to be extradited if they might face capital punishment. That was alluded to by the hon. Member for Brighton, Pavilion (Caroline Lucas)—although I could not agree with all her remarks about torture.

Two issues have arisen out of the 2003 Act. The first concerns the disparity—or lack of reciprocity—perceived to exist between the arrangements that we have in place for extradition to the United States and the arrangements that the United States has in place for the extradition to this country of those accused of crimes here. Notwithstanding what was said by the then Attorney-General, Baroness Scotland, when the commencement provisions of the 2003 Act were debated in the other place, I agree with the Baker report that there is little difference between the tests applied on this side of the Atlantic and on the other side. Fundamentally, there is no difference between probable cause and reasonable suspicion.

What so concerns our constituents—certainly in my constituency—and many lawyers is that whereas in the United States the fourth amendment to the constitution, which requires probable cause to be shown, requires that an extradition request go before a court, there is no such requirement in this country. In those circumstances, it is perceived—I think, perhaps, correctly—that citizens or anybody domiciled in this jurisdiction whose extradition is sought to the United States are being denied a right that they might otherwise have had.

The commencement of the forum provisions contained in the Police and Justice Act 2006, in so far as they amended the 2003 Act, would go some way to meeting these difficulties. I agree with the Joint Committee on Human Rights that it is difficult to understand why those provisions have not been commenced, including by the previous Government. Liberty obtained advice from leading counsel, Edward Fitzgerald and Julian Knowles, that no amendment to the treaty between this country and the United States would be required were those provisions to be commenced. I would like to hear from the Minister, therefore, that the Government will at the very least bring forward the commencement of those provisions.

[Richard Fuller (Bedford) (Con)]

My hon. and learned Friend is talking about the immediacy and the timing of some of these issues. That Babar Ahmad, who is the most pertinent example, has still not been brought to trial after seven years is further evidence of a scar on general jurisprudence in this country. Does that not give a sense of the importance of immediacy?

[Stephen Phillips]

I agree with my hon. Friend that it is a stain on justice in this country and, in my view, on justice in the United States that Babar Ahmad has been locked up for seven years. If Babar Ahmad wanted a trial, he could have one in the United States, but one of the great difficulties with forum issues is this: why on earth should he have to do so? Why should he be taken to a foreign jurisdiction, when the witnesses, the evidence and his legal representatives might be here, to defend himself against these very serious accusations? As the hon. Member for Brighton, Pavilion pointed out, these are very serious allegations indeed. I was horrified to hear her comments about the absence of evidence before the Crown Prosecution Service. I hope that that matter will be looked into and that the Minister will assure us that the evidence will be made available.

The other area of debate has been the European arrest warrant, the problem with which is that the standards of justice that prevail in this country and other countries in Europe, such as Ireland, Germany and France, are not necessarily those that prevail all over the European Union. I regret to say that I do not share the hope of the Joint Committee on Human Rights and the Baker report that the system will sort itself out. That is the triumph of hope over experience.

20:26

[Jeremy Corbyn (Islington North) (Lab)]

I start by congratulating the Backbench Business Committee on securing this debate and the hon. Member for Esher and Walton (Mr Raab) on how he introduced it. I also place on the record my pleasure that, after the unfortunate way in which the debate was punted into Westminster Hall, we now have it on the Floor of the House. I thank those concerned and those who campaigned to ensure that these huge petitions were responded to properly.

When I was first elected to the House, I never would have dreamed it possible that public campaigns and public concern could result in a debate in the House of Commons. We spent years trying to secure debates on the Birmingham Six, the Guildford Four and several other cases that turned out to be serious miscarriages of justices and which, in the current atmosphere, would undoubtedly have attracted the same number of petitioners as the cases being discussed tonight. We should welcome the fact that Parliament has manoeuvred itself into a position where it can be more responsive to public concerns and justice issues. I hope that it continues. After all, that is what we are sent here for—not only to write laws and change laws but to consider issues of miscarriages of justice.

I want to refer briefly to three cases and then make a couple of general points. I shall not talk at great length about the first one because others have done so. The case of Gary McKinnon has been well reported and documented, and his mother and family have campaigned so assiduously on it, as has his own MP and many others. It is time that we understood that the McKinnon case goes to the heart of a whole load of inadequacies, of both our system and our relationship with the United States, which, as the hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) pointed out a minute ago, is not a reciprocal arrangement, but something fundamentally different.

[Stephen Phillips]

I am extremely grateful to the hon. Gentleman for giving way so soon. Is not one of the problems with the McKinnon case that there is nothing in the 2003 Act to enable the Home Secretary to take into account either mental or physical illness? That means that Gary McKinnon’s Asperger’s cannot be taken into account when deciding whether he should be extradited.

[Jeremy Corbyn]

The hon. and learned Gentleman makes an excellent point, and I agree with him. That is the fundamental weakness in the 2003 Act, which does not allow that discretion which any sensible, right-thinking person would apply straight away on a humanitarian basis.

I was not going to mention the General Pinochet case until I got to the end, but I may as well do so now, as it fits with the hon. and learned Gentleman’s point. Like many others, I fought to get Pinochet extradited so that he could go on trial. We won the cases all the way through, but unfortunately the then Home Secretary decided that there was an overriding medical reason for allowing General Pinochet to return on the “Lazarus flight” to Chile, where he walked off the plane and seemed to be perfectly healthy.

[Chris Bryant (Rhondda) (Lab)]

I rather agree with my hon. Friend about General Pinochet, not least as several of my friends were killed by his police force in Chile. My hon. Friend said that any sensible person would want to change the leeway allowed to the Secretary of State, but unfortunately the report that we are discussing this evening says:

“We note the arguments for increasing the role of the Secretary of State in the surrender of persons…We are not convinced that changes should be made”.

[Jeremy Corbyn]

I am sorry that the authors of the report are not convinced, but it is up to us in this House to try to convince the Government to make those changes. Although I welcome the examination of the issue, as well as this debate, it is absolutely up to us to ensure that that happens.

The second case that I want to mention is that of Julian Assange and the ongoing attempt to extradite him to Sweden. I want to go on to something else in a second, but let me briefly quote Debra Sheehan, who has been campaigning for Mr Assange not to be extradited to Sweden: “I believe this ruling”—the ruling that he can be extradited—

“sets a very dangerous precedent allowing any UK citizen—and possibly any European citizen—to be extradited without charge. Mr Assange’s case shows that the European arrest warrant can be used in a totally disproportionate way without using other less draconian methods of completing police investigations, such as Mutual Legal Assistance.”

The European arrest warrant is a serious issue, because, as others have pointed out, it seems that countries with a far from rigorous, fair and open judicial system can gain arrest warrants against British subjects, who are then taken to a different jurisdiction, where they face a much lower threshold of proof before a conviction is obtained. It is not our business to protect criminals, but it is our business to ensure that people get a fair trial and that there is absolutely the presumption of innocence before any conviction is made.

The third case that I want to mention is that of Babar Ahmad, which was brought up excellently by my friend the hon. Member for Brighton, Pavilion (Caroline Lucas). Yesterday I received an e-mail from his father that I would like to quote from:

“I am writing to request that you attend the debate…and…vote in favour of reforming the laws so that they strengthen the protection for British citizens, such as my son Babar Ahmad, who is now in his eighth year of detention-without-trial.”

He continues:

“Babar is the longest detained-without-trial British citizen in the modern history of the UK. He is in his 8th year of detention in a maximum security institution. He has served the equivalent of a 14 year sentence and if he had been tried and convicted in the UK, he would be probably out by now.

The CPS has recently admitted that it never considered the evidence against Babar before it was sent to the US authorities”—

a point made by my friend, the hon. Lady—

“yet for over seven years, they have allowed him to languish in prison without trial, refusing to prosecute him on the alleged basis that there is ‘insufficient evidence’ to prosecute him. The crimes for which he stands accused are said to have taken place in the UK. Over 141,000 people and 100 senior lawyers have”

written in his support.

“If extradited to the US Babar faces a period of 3 years pre-trial detention in complete isolation. If convicted he would face life without parole in solitary confinement at a Supermax prison”.

Is that really what we want for British citizens under this law? That is what will happen if Babar Ahmad’s extradition goes ahead. His father continues:

“On 22 June 2011, Parliament’s JCHR explicitly raised concerns over Babar’s case recommending that the government urgently re-negotiate the UK-US”

agreement. Finally, just to make the point, he says that this debate is part of the “enormous public interest” in the case, and in particular the examination of it by the Muslim community in this country, which feels that Babar Ahmad’s case is indicative of something about the treatment of people where there is any suspicion of the kind of offences in which he is alleged to have been involved. He cannot be tried in this country because of the way he has been treated—the trial would collapse—so why on earth should we even consider allowing him to go to the United States?

Baroness Helena Kennedy, who is extremely eminent on all legal matters and somebody for whom I have enormous respect, wrote an excellent article in The Guardian today in which she raised the question of the forum. She wrote:

“To my mind, where there is clear evidence to a criminal standard of a crime being committed either in the UK or from the UK and jurisdiction is being contested, an English court should be required to determine the strength of the evidence and the ‘forum conveniens’—that is, the location of any prosecution. The court’s decision on forum should be based on clear guidance—the nationality of the defendant and the victim; location of both the prosecution and defence evidence, witnesses, and so forth. Yet as it stands there is no statutory right for a UK defendant to challenge extradition on forum grounds.”

I hope that the Minister will be able to respond to that in winding up the debate.

The general point that I want to make is this. We are not here to defend criminals. We are here to ensure that those who have been charged are given a proper hearing and a fair trial. Extradition arrangements must be fair and reciprocal, and in most past cases they have been, in the sense that the Minister for the Interior, or the Home Secretary, has been able to exercise some degree of discretion as to whether or not a person should be extradited. I think that that is right, although one might disagree with the discretion used on certain occasions. What we have here, however, is a completely imbalanced system—as a result of both the European arrest warrant and our arrangements with the United States—which I consider to be contrary to all the judicial traditions of this country, and on which I think it right for the House to take a stand.

I hope that the motion will be passed, and that that will send a clear message to the Government about what we want. I understand that there may not even be a vote. That either indicates unanimity or that the dark forces of the Whips’ Offices in all parties have taken the night off, but I fear that they are forces that never sleep.

On 11 November the Home Secretary received a long letter from Shami Chakrabarti, general secretary of Liberty, which made points about forum, and many more general points. She wrote:

“The human rights bar in the 2003 Act is of the utmost importance and we continue to encourage its effective application by the British judiciary.”

I hope that the Minister will be able to assure us that that letter has received a reply, and will be able to inform us of the Government’s general attitude. We are here to stand up for justice and liberty, and I believe that our arrangement with the United States is the opposite of those things.

20:37

[Mr David Burrowes (Enfield, Southgate) (Con)]

I join other Members in congratulating my hon. Friend the Member for Esher and Walton (Mr Raab) on securing the debate.

We usually describe debates of this sort as timely, but, although this evening’s debate is timely in the context of the Government’s current consideration of the Baker review, it would be hard for my constituent Gary McKinnon, who has been living a nightmare, and who now faces his 10th Christmas awaiting extradition, to see it in those terms, especially given that the outcome for him will be determined not retrospectively through the reform of extradition laws, which I support, but by medical evidence that is before the Home Secretary as we speak.

Parliament has given time to debate the issue of Gary McKinnon and extradition. We had a vote on forum in 2006 during the passage of the Bill that became the Police and Justice Act 2006. We have also had urgent questions, Opposition day debates, the report from the Joint Committee on Human Rights and Westminster Hall debates—and here we are having this debate today. What has not been in short supply is parliamentary attention. What has been in short supply is responsibility—responsibility for the plight of constituents such as Gary McKinnon, and for the injustice that has been done to them. The motion, which is welcome, seeks the restoration, at long last, of responsibility where it should lie.

I want to tell the House about an individual who was blamed for causing the biggest computer hack to hit the United States with an electronic attack on America’s biggest port, Houston, in 2001. He was a young British man with Asperger’s syndrome. He was not Gary McKinnon, but Aaron Caffrey. He was not extradited to the United States, but was tried in this country and found not guilty.

Then there was the man who was said to be doing

“more harm than the KGB”

and to be the

“No. 1 threat to U.S. security.”

He had UFO posters on his wall. He broke into the United States defence and missile systems. He too could have been, but was not, Gary McKinnon. He was prosecuted in this country, and was fined £1,200. And there was the computer virus that inflicted an estimated $5.5 billion-worth of damage and controlled 50,000 machines, hijacking sites run by a United States Department. Again, that was not Gary McKinnon. It was Andrew Harvey and Jordan Bradley. They were prosecuted here and received six and three months’ imprisonment respectively.

Why then is Gary McKinnon being pursued remorselessly by the United States authorities? I believe that one of the motivations is instructive to the debate. The US ambassador on a number of occasions has made his position clear on behalf of the US Government. Indeed, several years ago, I asked him directly why the US authorities were doing that. When he replied, he recounted the alleged damage to US naval systems—he went through that in some detail—but then his voice and emotions rose, the severity of his tone increased and he said, referring to the comments left by Gary McKinnon on various websites, “He mocked us.” Many of us would think that Gary McKinnon should be praised for exposing flaws in US systems by typing in passwords and getting through systems, as a terrorist could have got through their systems, but that comment, “He mocked us”, shows that, whether we like it or not, politics plays a part in extradition.

Look at WikiLeaks. Just before President Obama came to speak to us, the US Attorney-General demanded that Gary McKinnon be extradited. Today, the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett), a former Home Secretary, talked about how he tried to arrange a TV link for Gary McKinnon’s trial. I understand that that had no legs because video conferencing is illegal under US law. It requires live cross-examination of witnesses.

What should we do to improve the situation? Plainly, it is important that we retain and uphold the importance and independence of prosecutions, even if that independence is not always reciprocated as a point of principle. The opponents of a forum bar say that such a bar would inhibit and delay prosecutions, but I say that a forum bar would help to protect the integrity of prosecutions and avoid those private deals and that pressure, political or otherwise. For example, Gary McKinnon in the early stages was threatened with a lengthy sentence and harsh conditions if he fought extradition, but judicial consideration of forum, bringing it into the open, would ensure that a proper decision was made about where to try a case that crossed jurisdiction boundaries.

The ambassador's comments also remind us that the Home Secretary has a legitimate role, despite what the Baker review says. The modern law of extradition has been developing since 1870. The Home Secretary has a vital role to play in ensuring that defendants are not wrongly extradited. International crime has developed since the 19th century. Global terrorism has emerged. Treaties have been signed, but what remains is that the Home Secretary is the long-stop safeguard against injustice for citizens facing extradition.

The motion seeks to ensure that the courts are the primary safeguard. The protracted battle to stop Gary McKinnon’s extradition has highlighted the need for a forum bar. The judicial review hearing into the Director of Public Prosecution’s decision not to prosecute was revealing. The judges said that, due to the fact that the matter of forum was not determined by way of a judicial safeguard, through the Police and Justice Act 2006 —forum amendments are absent from that Act—it needed to be decided by someone. The point is that that someone should be in the courts. Otherwise, we are left with a situation in which the Home Secretary says, “I do not have to consider forum because that is a matter for the DPP,” and the DPP says, “We have decided to cede jurisdiction to the US,” leaving Gary McKinnon and defendants like him having to challenge the DPP’s decision not to prosecute by judicial review.

What does the Baker review suggest? It suggests some DPP guidelines. Those would not be adequate. They would not be the lifeline that respected commentators such as Joshua Rozenberg have mentioned. What would happen under those guidelines? Residence and nationality would be considered, but how could one challenge the decision? We are back in the realms of judicial review. Even the Baker review says that

“we anticipate it would be very rare for the court to entertain, and rarer still for the court to grant, such an application.”

The Baker review, then, has done nothing to give that proper safeguard. Tonight we can do something important. We can make Parliament’s views abundantly clear. The reform of extradition law is needed to stop more cases like that of Gary McKinnon. The US ambassador felt mocked by Gary McKinnon’s words that were left on US systems, but what about these words and the medical evidence that is before the Home Secretary from Professor Jeremy Turk? He said that

“suicide is now a real probability and will be an almost certain inevitability should he experience extradition”.

Does not this disproportionate extradition of a suicidal and sectionable person, Gary McKinnon, make a mockery of our extradition laws? Are not the life-threatening effects of extradition avoidable by prosecuting him in this country? As I said in 2009, how ill and vulnerable does Gary McKinnon need to be in order not to be extradited to the United States? Tonight, Parliament can say that it will not be mocked, and that it continues to demand proper judicial safeguards. I support the motion.

20:45

[Charlotte Leslie (Bristol North West) (Con)]

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this debate, and thank all the other Members of various different parties who have worked so hard to bring the debate to the Chamber. I also wish to echo the eloquent comments of my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) on the value of extradition. It is easy to be one-sided in this debate, and to forget the valuable role extradition can play both in international justice and for the families of the victims.

Understandably, the focus so far has been on the European arrest warrant and the US and UK extradition treaty, but I want to address the issue of those countries, including the US, that do not require prima facie evidence for an extradition to be requested. There are 24 of them, one of which is South Africa, and I want to highlight the case of Shrien Dewani, who has been accused of the terrible and tragic crime of murdering his wife in South Africa. This is not a question of an individual’s innocence or guilt; rather, it is a question of what kind of justice system Parliament can in good conscience approve a British citizen to go through.

My constituent Shrien Dewani was arrested more than a year ago, and he has not so far been charged in either country. Judge Howard Riddle assessed his mental health problems following the appalling and traumatic incident to be extremely severe and considered there to be a real risk of suicide. As I have said, South Africa does not require any prima facie evidence to request extradition, and extradition has been granted pending an appeal.

The case of my constituent has been the subject of extensive pre-judicial and prejudicial media coverage in South Africa, so much so that the head of the South African prosecution services is reported to have been removed from his post because he has been deemed not to be fit and proper to hold it as he has publicly prejudged the case. There have also been explicit threats by prison inmates about what would happen to my constituent were he to be put in a South African jail. It is hard to see how my constituent’s mental health can be safeguarded in such a climate.

There are also serious questions about South Africa’s record of torture in prisons. In 2010, the United Nations Commission on Human Rights found that South Africa had violated the right of a prisoner, Bradley McCallum, not to be tortured and that it had also violated its obligation to investigate and remedy the violations of that right. Those are serious matters. Can we be happy to extradite a British citizen given that severe climate?

Given the media prejudgement by officials, the public threats by prison inmates to my constituent, the very real risk of suicide and the shadow of UN investigations on torture, can it be right that we do not require any prima facie evidence from a country such as South Africa? Can it also be right that we do not further question our extradition treaties with South Africa and other such countries? I hope other Members agree that that is not right. I support the motion.

20:48

[Richard Drax (South Dorset) (Con)]

I, too, congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this important debate. I had the privilege of being called to speak in a similar debate in Westminster Hall recently. I was thrilled by that, as was my constituent, Michael Turner, a young man who lives in South Dorset and who has for too long been the victim of an outrageous injustice under the European arrest warrant. As I understand it, and as I believe most hon. Members understand it, the EAW was meant to deal with terrorism and serious crime. My hon. Friend the Member for Bournemouth West (Conor Burns), who is not in his place, talked about proportionality and I believe that when hon. Members have heard me finish my remarks about the case of Michael Turner, they will agree that the Hungarian authorities have shown no proportionality whatsoever.

Michael’s story begins in 2002, when he and a friend set up a marketing company operating out of Budapest. Regrettably, like so many other businesses around the world, it folded in 2004. The Hungarian authorities alleged that the two men acted fraudulently, leaving customers out of pocket to the tune of about £18,000—not a king’s ransom, as hon. Members may agree. The two men denied the charge of fraud and still do. In November 2008, after Hungary had joined the EU and Britain had signed up to the European extradition treaty, the Hungarian authorities came for Michael.

Here in the United Kingdom, Michael and his team fought against extradition until 2009, when Mr Justice Collins overruled his appeal in the High Court and ordered the two men to hand themselves over to the Hungarian authorities. Michael’s highly respected barrister, Hugh O’Donoghue, was “outraged” at the decision, believing that the European arrest warrant had been incorrectly interpreted and used.

On Monday 2 November 2009, Michael and his friend went to Gatwick airport voluntarily and were handed over to what I believe were Hungarian special forces—they were certainly police—who wanted to wear balaclavas to avoid being identified. I emphasise that the two men went voluntarily, and they were assured that as soon as they arrived in Hungary they would be allowed to call home. However, no such call was forthcoming, and they were refused bail on the ground that they would abscond—this, when they had gone to Hungary voluntarily. They were locked up, incommunicado, at a police station for three days before being moved to Veniga prison. Meanwhile, Michael’s family had to find a Hungarian lawyer to locate him. Even the Foreign Office did not know where he was, as was shown in an e-mail to me dated 4 November 2009, two days after Michael and his friend had been sent to Hungary. It stated:

“We were not initially aware of the case as the Hungarian authorities had not been in contact to notify us of Michael Turner’s detention.”

A judicial mess of scandalous proportions had begun, but far worse was to follow.

Locked up in this former KGB jail on the outskirts of Budapest, Michael was separated from his partner and friend, and placed in a small cell with three other men for 23 hours a day. Here he remained for the next four months, without charge. That in itself is surely a breach of his human rights—and how often in this country do we hear that expression? His initial request to call the consulate was refused, and the authorities had to be reminded that a call to the consulate was a right, not a privilege. He was allowed a one-hour visit per month and one shower per week—he had to basin-wash in his cell, in front of the other three men, for the other six days. Having reading material, and receiving and sending letters, was made difficult for him, and he was continually shouted at in a language that he did not understand. The appalling conditions soon began to wear on him, as I am sure we can all imagine. Soon, and inevitably, it was being suggested that if Michael pleaded guilty his stay in prison would be shortened, but he rightly and bravely stayed silent. Anyway, why should he plead guilty? In his view, he is innocent.

Behind the scenes, many people were trying to help Michael, and I must pay tribute to the Earl of Dartmouth, a UK Independence party MEP, who visited the prison, and Fair Trials International, which is doing what it can to help. It seems extraordinary to me, and I am sure to many Members in the House and to millions of people in this country, that when so many illegal immigrants cannot be extradited to their countries because of their so-called “human rights”, it appears that a British citizen can be handed over almost on a whim.

None of us is sure why Michael’s four-month incarceration in that hellhole came to an end, but on the morning of 26 February 2010, the door opened and Michael was free with no explanation, no apology and still no charge. In April 2010, he returned voluntarily and courageously to Hungary to answer more questions. He was told that police had interviewed more than 500 witnesses and it is calculated that it would take a year, at least, to cross-examine those people alone if the case came to court. Michael returned to the United Kingdom and still faces no charge. The case hangs over him and his family like the sword of Damocles, the emotional, physical and financial cost is hard to gauge and the distress has been absolutely appalling.

Unable to move on with his young life, Michael waits for Hungarian justice, so-called, to take its course, a course that has seen my constituent subjected to imprisonment, psychological torture—of that, he and I have no doubt—huge expense, unrelenting stress and, worst of all for Members of this House and certainly for him, an understandable loss of faith in this country’s ability to look after her own.

Hungary’s judicial system is not on a par with ours—far from it. It is primitive, bureaucratic and clearly unjust. In this country, someone is innocent until proven guilty, but it would seem that that is not the case in Hungary. The current extradition treaty is a complete mess. I agree with Members that some sort of treaty is needed, but reform is needed even more. I back the excellent motion tabled by my hon. Friend the Member for Esher and Walton. I am deeply passionate about this subject and I am honoured to attempt to get freedom and democracy for my constituent, Michael Turner.

20:56

[Michael Ellis (Northampton North) (Con)]

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this debate, my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), who is no longer in his place, on his representation of his constituent, and of course my hon. Friend the Member for South Dorset (Richard Drax) on his eloquent representation of his constituent. I also congratulate Her Majesty’s Government on putting in place the mechanisms by which this debate can take place, by introducing the Backbench Business Committee.

My comments will be on the United Kingdom-United States extradition arrangements. I accept that there is a problem with the European arrest warrant, particularly as regards proportionality, and I would submit that it has other serious defects in other respects, too. Not only is it inappropriate for there to be extradition in cases where there is considerable doubt about the seriousness of the alleged offence, but there are clearly differences between the judicial and incarceration systems in many of our European neighbour countries.

[Mr Robert Buckland (South Swindon) (Con)]

Does my hon. Friend agree that one of the problems posed by the use of the warrant is that it is sometimes used to aid investigation rather than prosecution, as in the example just given by my hon. Friend the Member for South Dorset (Richard Drax)?

[Michael Ellis]

I agree. As I said, I acknowledge that there are some serious defects with the European arrest warrant, but the motion conflates the European arrest warrant with the UK-US arrangements and I want to inject an important observation about those arrangements into the debate.

The law enforcement relationship between our two countries is predicated on trust, mutual respect, protecting our peoples and removing safe havens as options for those people who seek to evade justice. It is also important to remember that the United States is, as the Baker report illuminated for those who might not otherwise agree, a rights-based democracy in which accused persons have fundamental protections provided by the constitution to ensure that they are able to participate effectively in a criminal trial process that is conducted fairly. It is important to emphasise that our Anglo-American relations are predicated on those facts and on our acceptance that the United States system of jurisprudence provides a very advanced state of rights-based democracy for accused persons.

[Charlie Elphicke]

My hon. Friend is making a powerful speech, but let me ask him a question. If I were facing a Texas jury having been extradited from my homeland here in the United Kingdom under the extradition treaty to face trial, would I have recourse to legal aid or something analogous to it under the wonderful rights-based system in the United States?

[Michael Ellis]

The systems provided by the United States are accepted by the international community as being perfectly amenable to the interests of democracy and the rights of the individual within the state of Texas and other states of the American union.

Approximately a year ago, Her Majesty’s Government commissioned a report—the Baker report—to which several colleagues have referred and which I am holding. It is 500 pages long, it took one year to complete and it was conducted by three eminent jurists: Sir Scott Baker, who was called to the Bar some 50 years ago, and two eminent lawyers, both of whom have acted for Governments and for requested persons and have therefore dealt with this issue on many occasions and from both sides of the fence. They came to the conclusion that there was no significant difference or imbalance between the extradition arrangements in the United States and the United Kingdom. That is the crux of this matter. Many of the previous speakers seemed to assume that there were imbalances, which they criticised, but they did not address those alleged imbalances.

I have heard no evidence, and the Baker report came up with no evidence, pinpointing where there is imbalance. There is different terminology, with “reasonable suspicion” being used often in the UK arrangements in relation to the evidential burden that is required, whereas “probable cause” is used by the United States. Those two terms may be slightly different in phraseology but they mean very much the same thing, and those who have analysed the position in some detail, either in the Baker report or elsewhere, have come to that clear conclusion.

[Mr David Davis]

My hon. Friend has asked for an example. How does he see the circumstances of someone facing trial in Texas who is thousands of miles from their nearest and dearest, isolated from their community and has no financial support? Does not the plea-bargaining system in America become a predatory process that threatens them with long-term loss of liberty or the prospect of giving in and admitting guilt?

[Michael Ellis]

There have been extradition arrangements between our two peoples since the later part of the 18th century. As for plea-bargain arrangements, there are also pressures on defendants in the British system. We do not refer to them as plea-bargaining, but defendants know that if they plead guilty, they are likely to receive a lesser sentence, so although we have no plea-bargaining arrangement, it is not correct to assume that the two systems are completely different.

The conclusion reached by the Baker report is that there is no significant difference between the tests that either country applies. In all extradition requests that have been submitted to the United Kingdom since 1 January 2004, the United States and many other states have not had to provide prima facie evidence, instead having to provide only the information sufficient to satisfy the extradition legislation. There are many countries, including Australia, Canada and New Zealand, from which we do not require prima facie evidence before extraditing to them. We should not therefore require the United States to jump over that hurdle when the other allied nations whose legal systems are based on ours do not have to do so. I understand that countries that have signed the European convention on extradition orders do not have to jump through that hoop. Those countries include Turkey and Russia. Those who call for a prima facie standard, as I understand the Joint Committee on Human Rights has done, must explain why Russia should be required to have a lesser standard than America, if America were put under the pressure of proving to a prima facie standard.

[Bob Stewart (Beckenham) (Con)]

Should we not require that standard of everyone? Is that not the way forward?

[Michael Ellis]

Well, that is one way of looking at it. Certainly, if we were to decide to require everyone to hold to the prima facie standard, that might be fairer, although it would be extremely expensive, bureaucratic and time consuming. For the accused person and for witnesses, the interests of justice are not served by delaying matters, so that would be the problem there. However, before the 2003 Act, I believe there was a requirement to find a prima facie standard. If not, there was certainly an imbalance between the United States and the United Kingdom in that respect. The United States had to apply greater burdens to extradite people from the United Kingdom than the United Kingdom had to supply vice versa.

[Mr Raab]

My hon. Friend has made the point about the paper test, but the key point made by Alun Jones QC is that the quality of evidence is assessed in extraditions both ways by the US courts—that is a requirement of the US constitution—but in neither case by the UK courts. There is the imbalance. Does my hon. Friend accept that?

[Michael Ellis]

No, I do not accept that. I agree with the Scott Baker report that there is no fundamental imbalance. It is important to point out that the United States has not denied a single extradition request from the United Kingdom under the treaty. Although the United States makes more requests to the United Kingdom than it receives, the difference is largely because the population of the United States is five times greater than that of the United Kingdom. There is no imbalance. The Scott Baker report confirms that, and I cannot support the motion.

21:07

[Charlie Elphicke (Dover) (Con)]

It is a pleasure to follow my hon. Friend the Member for Northampton North (Michael Ellis), who made a passionate defence of the current arrangements between the United Kingdom and the United States. I regret that although I agree with him on so very much, on this rare occasion we will have to part company in our legal and political analysis of the situation.

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing the debate. It is good to have the debate on the Floor of the House and to see a measure of consensus emerging as the debate has gone on. I have looked at the extradition treaty between the United States and the United Kingdom, so boldly defended by the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) who, sadly, is no longer in his place. As a former Home Secretary entering into that agreement, one would expect that.

I have some difficulties with the treaty. The first of those, which has vexed many, is on the issue of reasonable suspicion versus probable cause. As everyone who has read the Scott Baker report will know, probable cause is reviewed on page 239, paragraph 7.35, where it is defined as

“a reasonable belief that a person has committed a crime”.

There is a difference between a reasonable suspicion, which is the arresting standard in our jurisprudence, and America, where probable cause is a reasonable belief that a person has committed a crime. Belief is clearly a higher test than suspicion. As I know from my time in my books, a suspicion that someone has committed a crime is a sense that that might be the case. Belief is a higher level than suspicion. Suspicion is maybe, maybe not; belief is “I’m pretty sure.” I think we should be careful about that. Indeed, the Scott Baker report discusses the difference at some length but later glosses over it.

This error, which in my opinion results from the use of different legal definitions in our two systems, has crept into the defence of the treaty. Indeed, His Excellency the American ambassador to the Court of St James, Louis Susman, has decided to take an interest in our internal affairs and wrote in The Daily Telegraph today that there is no real difference. I think that in a deep sense there is a difference. He states:

“In all extradition cases, the UK authorities always begin by considering whether an individual can and should be tried in the UK instead of being extradited. Once the UK authorities decide that the case should be tried in the US, all extradition hearings are then held in UK courts”,

and then off the person goes. My difficulty with that argument is that I see nothing in the treaty that makes that the case. There is a provision in the treaty that states clearly, in my humble opinion, that just because no action is being taken in the UK the person can be extradited. Nothing states that. Paragraph 4 of article 2 states:

“If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances.”

It also seems clear, in the paragraph relating to no prosecution, that if charges are not made in the UK the person can be extradited, but even if charges were laid in the UK, my reading of article 5 is that there is no bar on extradition being sought from the United States in that case either.

My fundamental trouble with the support being given to the US-UK treaty in its current format is very simple: if a crime is committed or alleged to have been committed on British soil so that the act of the crime, what lawyers call the actus reus, was in the UK, meaning that the deed was done in the UK, surely the proper forum is the UK. Many of the cases that we have discussed tonight and that have caused so much ire are cases where people in the UK have allegedly committed crimes for which the foreign requesting jurisdiction, typically the US, is asking for them, and we know that if a crime has been committed it has been committed in the UK. Surely the right place for that person to be tried is the UK, for all the reasons my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) has given. For example, they have their friends, family and loved ones around one, they have a house, they do not have to pay to maintain themselves and they have access to legal aid.

If people are shipped over to face a jury in Texas, as the NatWest Three or Enron Three were, they will know very well that they will have to maintain themselves, that they are far from their loved ones and best advisers and that they will have to pay all the fees if they want to see the court case through. When someone faces the massive likelihood of a conviction because there is a Texas jury and they are not from Texas, which regrettably can be the case, they will accept a plea bargain that is made to look very enticing and attractive. They can have a massively long sentence of multiple years on the one hand or a very short sentence on the other. What will they do? Of course they will accept the plea-bargain. I think that that is incredibly unfair. If people in that situation have committed a crime, it was in the UK and they should have been prosecuted in the UK.

There is a provision set out in paragraphs 4 and 5 of schedule 13 to the Police and Justice Act 2006 that does not seem to have been commenced, and I wonder whether the Minister for Immigration might be able to enlighten the House on whether it is likely to be commenced, and if so when, so that there can be the kind of forum bar, which I and so many Members have spoken about this evening, to right that balance so that there will not be the lingering feeling of injustice.

The other issue is the European arrest warrant, and I was glad to hear my hon. Friend the Liberal Democrat Member for Edinburgh West (Mike Crockart) say that it was an area for righteous renegotiation with our friends in Europe. I agree. We should renegotiate in the national interest and, indeed, in the interests of the people of this country, when it is right to do so, and that area should be looked at, if only because it has been so massively abused—for fishing expeditions, for investigating crimes and for wrongful processes. We therefore need to rebalance that and to get the balance right.

21:15

[Jacob Rees-Mogg (North East Somerset) (Con)]

It is a real privilege to follow my learned hon. Friend the Member for Dover (Charlie Elphicke) and to speak in this debate, called by my hon. Friend the Member for Esher and Walton (Mr Raab), who is so right to be defending the ancient rights of the British people. My hon. Friend the Member for South Dorset (Richard Drax) got it absolutely right when he said that we spend a lot of time talking about the human rights of people in this country until, suddenly, extradition comes up and then—bingo!—they have gone, and they are sacrificed to transportation to a foreign land.

The point that we should focus on is the first principle of why we have such protections for the innocent in the criminal law. We have, as we know, a powerful state. The state provides the police and the prosecuting authority, and the state pays the judges and reimburses the juries, and, because of that great power, the state then feels it is right to put in place protections for the individual who is charged: the right to trial by jury; the right to habeas corpus; and the right to be presumed innocent until found guilty. These are the foundation rights of our criminal justice system and have a history stretching back 1,000 years.

But, when it comes to extradition, people can go to countries that do not have or follow that tradition. We have heard about how it works in Hungary, and the criminal justice system there, so one is a protected British subject if charged here, with all sorts of possible ways of defending oneself, but suddenly, if one comes under the European arrest warrant, one can languish in a dank Hungarian jail, with all those protections removed.

The United States is our greatest and closest ally, and a country with which we want to have the friendliest of relations, but we have already heard about the extraordinary approach it takes to plea bargaining: one may be threatened with 400 years without the option of parole, or if one pleads guilty one gets a week in a resort near Canada, as happened to the man who was prosecuted at the same point as Lord Black of Crossharbour—his noble lordship. One of them was offered an enormously long sentence, and the other was offered a Canadian golf club.

[Michael Ellis]

We do not have a system of plea bargaining in this country, but does my hon. Friend not accept that people who plead guilty in the United Kingdom’s courts will almost invariably receive a lower sentence than if they are found guilty after trial? There are good public policy reasons why.

[Jacob Rees-Mogg]

There are, indeed, but that is of a completely different order of magnitude: one gets a little off one’s sentence if one pleads guilty early—rather than being threatened with hundreds of years against a week in a golf club. That does not happen under the British system, but we know that it happened to the man who turned the equivalent of Queen’s evidence against Conrad Black. We know that it happens in the United States system, but we are willing to risk British subjects going over there.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

The hon. Gentleman is always worth listening to, even if his arguments are not the strongest of cases. He began by espousing the benefits of English—I must add—history, but surely we share that system with our colonial cousins, so having made great merit of the English judicial system he cannot then criticise our American friends.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. It is up to the hon. Gentleman who takes the intervention, but the Member had only just come in.

[Jacob Rees-Mogg]

But it is such a pleasure to hear from the hon. Gentleman, and the tone of the House is raised by his gracious presence, so I will respond. Yes, of course we should have a hierarchy of countries to which we feel comfortable extraditing people, and of course New Zealand, Australia and Canada would be very high up on those lists—and the United States would be pretty high up too.

However, I do not think that the ambassador to the Court of St James—the extraordinary plenipotentiary of the United States—behaves in a diplomatic way when he starts telling this House how we ought to consider our business. I like to think what the noise would be in Washington if our ambassador there decided to suggest to the Senate or to the House of Representatives how they ought to conduct their business. Sitting as he does in his grand fortress in Grosvenor square like some Persian satrap, he should not be telling the House of Commons how to conduct her business. Of course we should have friendly extradition arrangements with the United States, but crucially ones that protect the ancient rights of the British subject whereby they should be innocent until proved guilty and should remain within the jurisdiction of this country until evidence is produced against them.

If we are worried about the United States, how much more worried should we be about some European countries, which can, in effect, arrest people and have them removed from this country without so much as a by-your-leave? We are risking people’s freedom and liberty. This House exists to protect the freedoms and the liberties of the British subject. Yes, I know that some of them will be guilty and will deserve severe punishment for the crimes they have committed, but have we not set up our justice system on the basic principle that it is better for 100 guilty men to go free than for one innocent man or, indeed, woman, although women commit fewer crimes—[Interruption] It is true; they do—to be imprisoned when innocent? If that is the starting point of our justice system, then surely we ought to apply it when it comes to extradition, and therefore the Government ought to review the arrangements that they have with the United States.

[Michael Ellis]

Does my hon. Friend give no credence to the fact that in the 500-page Scott Baker report, commissioned by Her Majesty’s Government, eminent jurists came to the conclusion that the imbalance that he is assuming between British and American relations regarding extradition does not exist?

[Jacob Rees-Mogg]

Had my hon. Friend paid closer attention to the excellent speech by my hon. Friend the Member for Esher and Walton, he would understand that there are differing views on that. It is well known that, with Government reports, the people are appointed who will provide the report that is wanted. That has been practised over many centuries.

[Mr Raab]

My hon. Friend is making his case in his usual passionate way, laced with history and forensic analysis. Does he agree that lawyers and judges give their legal opinions, but ultimately it is for accountable and elected lawmakers to decide on these matters?

[Jacob Rees-Mogg]

I entirely agree with my hon. Friend. Of course, we are the ones who must decide what is right for the country, and we must do so on first principles.

Although the American extradition treaty is not entirely satisfactory—I was very much persuaded by my hon. Friend’s introductory remarks—I am much more concerned about the European arrest warrant, which risks the freedom of innocent people in this country. I really would rather that we did not manage to arrest a foreign criminal if the exchange for that was allowing an innocent English person to be transported abroad—[Interruption.] Or a Scotsman, a Welshman or a Northern Irishman. I do not particularly want the southern Irish to languish in jails unnecessarily either, but that is not my business. It is therefore important for the Government to reinstate these protections. In fact, it would be quite encouraging if, in our efforts to renegotiate with Europe, we started with this.

21:24

[Chris Bryant (Rhondda) (Lab)]

I must confess that I was looking forward to more of that. I have on occasion referred to the hon. Member for North East Somerset (Jacob Rees-Mogg) as the hon. Member for the 13th century, but I think that that was far too radical a century for his liking.

I congratulate the hon. Member for Esher and Walton (Mr Raab) on securing this debate. He is quite greedy about getting debates. I think he has probably had his fair share for the rest of this Parliament, but he introduced an important matter that is of interest to many.

I also congratulate the many Members who have spoken on behalf of constituents who have had particular problems. I know, from when I was responsible for consular support in the Foreign Office, how often British embassies around the world deal with complicated situations in relation to extradition. In some circumstances, British people did not have to be extradited and were caught up in the criminal justice system in another country, where they did not speak the language, did not understand the system and were a long way from their loved ones, as many hon. Members have said. Some people were languishing in pretty hideous jails. I visited a couple of them in Thailand and Peru and cannot recommend the process to anybody. I therefore commend hon. Members for their comments.

In relation to Andrew Symeou, I tried to ensure, as far as possible, that our embassy in Athens was doing as much as possible to ensure that the family and Mr Symeou had the support that they needed. Of course, we were also trying to provide support to the family who were the victims of the crime in question.

I also congratulate the lawyers who have taken part in the debate. I notice that they keep calling themselves “jurists”. They are not going to get away with that. We know who they are. Unfortunately, I mostly agreed with their contributions, so I will not be rude to them this evening.

It is a fundamental principle that nobody should be arbitrarily arrested without due cause. It inevitably follows that no extradition, no surrender of a person and no arrest under an international warrant should, in the words of the Book of Common Prayer,

“be entered into unadvisedly or lightly; but reverently, discreetly, advisedly, soberly”.

Extradition is a vital part of a modern criminal justice system, as many Members have said. It means that nobody can evade justice simply by fleeing the country. In our case, 581 people have been brought back to the UK to face justice as a result of the European arrest warrant since 2004, including the failed 21 July bomber, Hussain Osman, who was extradited from Italy. Indeed, he was removed from Italy fast enough for his interrogation to inform the decisions on charges that had been placed against others, which was an important part of securing justice in that case.

We need at all times to keep our extradition arrangements, both multilateral and bilateral, under review so that nobody’s freedom is unjustly deprived by them. It seems to me that there are five key issues: the operation of the European arrest warrant, the question of whether a prima facie case should be made in all situations, the issue of double or dual criminality, the implementation of a forum bar and the purported imbalance of the US-UK treaty.

I will first make a few simple points. The first is that the motion refers to the protection of British citizens, as have many hon. Members. However, many UK extraditions are of course not of UK nationals. Many EAW requests are from countries that want their own nationals to face criminal proceedings back home. The report of the Joint Committee on Human Rights seeks a special threshold of proof for British citizens. Leaving aside the matter of Northern Ireland, I believe that the idea of special arrangements for our nationals, as opposed to anybody else, in the UK courts smacks more of the Russian system of extradition, which prevents the extradition of any Russian national, than the historic British position that the law should be blind to nationality.

[Mr David Davis]

On that point, the hon. Gentleman could have said that it smacked more of New Zealand, Australia, Germany or France. Why did he pick Russia?

[Chris Bryant]

It was partly because Russia has made a large number of extradition requests to this country to which we have said no because Timothy Workman, the judge in charge, has decided on each occasion that they were being advanced merely for political reasons, whereas when we make extradition requests, such as for Mr Lugovoy, who is sought for the murder of Alexander Litvinenko, the Russian state simply says that no Russian national will be extradited. I do not think that there should be a distinction between different nationalities.

My second minor point is that I suspect that statistics throw far less light on the matter than one might think. It is true, for instance, as the hon. Member for Esher and Walton mentioned, that the number of extraditions from the UK has risen dramatically since 1975, but then so has international travel. Moreover, although there was just one extradition to Spain in the decade up to 1973 compared with 61 in the past seven years, I suspect that that had more to do with the relations with Franco’s regime than with anything to do with the extradition system.

The same is true, I believe, of the US-UK extraditions to which the hon. Gentleman referred. Since 2004 there have been 73 extraditions to the United States from this country, and just 38 to the UK from the US, yet 70% of UK requests for extradition have been successful compared with just 54% of US requests to the UK. In other words, a US request is less likely to succeed than a UK one. Moreover, far more British nationals go to the US every year than the other way around. I know that that seems counter-intuitive, but the Library’s figures suggest that roughly 4.5 million British people go to the US every year, and fewer than 2 million come from the US to the UK.

Thirdly, cybercrime almost inevitably crosses borders, whether we are talking about conspiracy to fund terrorism, illegal file sharing or industrial espionage. Consequently, I agree with hon. Members who have said today that we have to ensure that we have a better way of dealing with the question of where individual matters may be resolved.

[Charlie Elphicke]

I thank the hon. Gentleman for being so generous in taking interventions. I put it to him that the original arrangements with the United States were entered into under the cloud of the history of 9/11 and terrorism, and now we are hearing cybercrime as the latest excuse. Is there not always another excuse to worry people about why we should go further in taking away their rights and protections?

[Chris Bryant]

I was actually agreeing with the hon. Gentleman in my remarks about cybercrime. I think it is legitimate for there to be a point at which we decide where is the right place for something to be tried. I believe that was the point that he was trying to make earlier, so I am grateful to him for his support for my argument.

Having dealt with the minor issues, I want to turn to the more significant ones, and first the operation of the European arrest warrant. It is true that there have been several cases in which the justice system in other countries included in the European arrest warrant has been far from ideal. Several hon. Members have mentioned those cases today. We are all mindful of the horrific experiences of some people who have been held for considerable periods for crimes that, as it turns out, they never committed. Incidentally, that is of course sometimes true in the United Kingdom as well.

Although I believe the EAW operates successfully in the main, there is one key matter that I believe needs to be addressed—the question of proportionality. Between 2004 and the end of March 2011, Poland accounted for 1,659 and Lithuania 355 of the UK’s 3,107 EAW surrenders. In part, that was because of the prosecutorial system in each of those two countries, but in many cases the warrants were for relatively minor offences. We believe that a proportionality test should apply. Indeed, I believe that the majority of members of the European Union would prefer to see some form of proportionality clause inserted into the provisions. It is important, of course, to bear it in mind that in many cases the UK imposes longer sentences than other countries in Europe, so there is a danger that if proportionality is introduced some countries will retaliate in the wrong direction. However, I believe that such a clause should be included.

[Richard Drax]

Does the hon. Gentleman agree that if we left the EU, proportionality could be decided in this country, not by a massive bureaucracy?

[Chris Bryant]

Oh dear, no. Don’t get me started on that. In fact, the hon. Gentleman is wrong about the aetiology of how we got to the European arrest warrant. It was a Conservative Government who ratified our membership of the European convention on extradition in 1991, which has almost all the same provisions and applies to nearly all the same countries. Indeed, in 1993 it also included Hungary.

Secondly, I wish to mention prima facie rules. Under the 2003 Act, there is no prima facie rule in relation to EAW countries, known in the legislation as category 1 territories. However, in countries in whose criminal justice systems we do not have the same legal confidence, a prima facie rule still applies. That includes several Commonwealth countries covered by the London scheme and many others covered by bilateral treaties, such as Brazil and Argentina—the countries that were formerly quite happy to receive people from Nazi Germany without asking any questions.

There is no prima facie requirement for designated category 2 countries that share our respect for human rights and the rule of law, such as Canada, New Zealand, Australia and the US. The Opposition believe that that distinction is a proper one, even if we would constantly seek to urge reform and modernisation of legal systems in many EAW countries. Hon. Members have said that we cannot just hope that that will happen and that we need to try to ensure that it does. However, we would not do so by suddenly inserting a prima facie case for all EAWs. If we did that, we would be leaving the EAW. Some hon. Members might like us to do that—as well as leaving the EU—but it would be a mistake because of the effects it would have on the UK.

[Stephen Phillips]

As I understand it, the hon. Gentleman is therefore advocating that it is perfectly acceptable for citizens of this country to be extradited to jurisdictions where conditions in the justice system are less than ideal when no prima facie case is shown. Is that right?

[Chris Bryant]

The Committee makes it clear in its report that the

“EAW is based on the principle of mutual recognition of judicial decisions and… mutual trust”

between the judicial authorities of EU states. That is a legitimate position for us to adopt, just as it was adopted in 1991 by the Conservative Government when they signed us up to the ECE—[Interruption.] The hon. Gentleman is chuntering, but I cannot hear what he says. Unless he wants to chunter louder, I am at a loss—[Interruption.] He says he will chunter more quietly, for which I am very grateful.

[Jacob Rees-Mogg]

Will the hon. Gentleman give way?

[Chris Bryant]

Of course I will give way to the hon. Gentleman—he will chunter from a standing position.

[Jacob Rees-Mogg]

I will indeed. I cannot believe that the hon. Gentleman, wise and sensible as he is, thinks that justice across all European states is equal. It self-evidently is not: some systems are much less good than ours, and none is better.

[Chris Bryant]

That kind of casual British superiority sometimes does not carry the day when it comes to making decisions about our legal systems—[Interruption.] It was a joke. I am sorry. I clearly missed that.

[Mr David Davis]

Will the hon. Gentleman give way?

[Chris Bryant]

I am being more generous than I should be, but of course I will give way.

[Mr Davis]

I rise to get the hon. Gentleman off the hook. He has accepted that judicial and prison systems in other European countries are less than desirable. He says that he does not want a prima facie test. Does he accept that he is therefore proposing, or what exists, will punish innocent people who are sent to those countries and suffer those problems?

[Chris Bryant]

No I do not accept that. The return question to the right hon. Gentleman would be this: why did he expressly support in 1991 the ratification of the ECE? If Britain had wanted to, it could have insisted on a prima facie case—that was when many member states had even less advanced criminal justice systems than they have today. The honest truth is that Britain came to the decision that it was more important to close down the costa del crime and the many different ways in which people could evade justice around Europe. I agree with his position at that time.

[Mr Davis]

Will the hon. Gentleman give way?

[Chris Bryant]

If the right hon. Gentleman does not mind, I am conscious that the Minister’s contribution is far more important than mine and I want to move on to a couple of other issues.

I fully understand the concern that many have with the abolition of double criminality from the framework decision. I understand those who believe that that could mean that one could be extradited for holocaust denial or other matters that are not criminal offences in this country. However, I ask hon. Members to remember that sections 64(2) and 65(2) of the Extradition Act 2003 make it absolutely clear that the conduct must have happened in the member state where it is a crime, not in this country. When people travel abroad, surely people subject themselves to the laws of those other countries.

Under the forum bar, extradition would not be allowed if, in the words of section 42 of the Criminal Justice Act 2006, which is now section 19B of the 2003 Act,

“a significant part of the conduct alleged…is conduct in the United Kingdom”

and if, in the opinion of the court, it is not

“in the interests of justice for the person to be tried for the offence in the requesting”

country. Many have pointed to some of the problems inherent in such a forum conveniens test—it could further delay complex proceedings, several of the terms are imprecise, and there could be extensive litigation around them—but the Opposition are not opposed to such a test per se, and merely note that the Government have not thus far introduced the relevant motion in this House or the other place.

Let me turn to the imbalance in the US-UK treaty. Members will know that the US constitution requires that nobody can be arrested without a prosecuting authority proving probable cause. That applies equally for a US arrest for US prosecution, for an international arrest warrant or, under the 2003 treaty, for extradition. The requirement for a UK extradition to the US is that information must be provided that satisfies the reasonable suspicion test. Both tests are based on reasonableness and require similar paperwork and evidence to be submitted. In the case of someone to be extradited from the UK, the US authorities first have to secure a warrant or grand jury indictment, both of which require that the probable cause test is met in the United States of America. The argument that the treaty is imbalanced is simply not made.

Let me briefly turn to the cases of Gary McKinnon and Babar Ahmad, which are much in Members’ thoughts today. It is not for this House to decide the guilt or innocence of anyone, nor do I believe that this motion can legally affect either of the two cases, notwithstanding the points that have been made by others. The length of time that these two cases have taken makes it difficult to see how justice is being done in either of them. Whatever changes the Government bring forward will not directly affect them. None the less, I urge the Secretary of State to make a final decision on Gary McKinnon as soon as possible, and the European Court on Human Rights to do the same by Babar Ahmad. Nothing we do tonight will free either of them, but we can ensure that in future others do not suffer in the same way.

21:41

[The Minister for Immigration (Damian Green)]

It is a terrible ministerial cliché to stand at the Dispatch Box and say that this has been a good and useful debate, but tonight it is true. Particular thanks should go to my hon. Friend the Member for Esher and Walton (Mr Raab) and to members of the Backbench Business Committee for securing time in this House to debate these important issues. My hon. Friend made some kind remarks about me at the start of the debate and I should reciprocate by praising not just his energy in pursuit of this campaign—this is our second debate in nine days on the subject—but the considerable legal expertise that he brings to the subject, as well as his contribution to the Joint Committee on Human Rights, whose Chairman also contributed to the debate.

As I made clear in the debate in Westminster Hall, the Government are currently considering what action to take to ensure that this country’s extradition arrangements work both efficiently and fairly. I welcome multiple debates on these matters and of course the Government will take them into account when responding to Sir Scott Baker’s independent review of extradition along with the work done by the Joint Committee on Human Rights and the Home Affairs Committee.

The debate on extradition in recent years has focused in large part on a number of high-profile cases. Like others tonight, I pay tribute to the hon. Members who have spoken on behalf of their constituents, including my hon. Friends the Members for Bristol North West (Charlotte Leslie) and for South Dorset (Richard Drax). We understand and take full account of the concerns raised by right hon. and hon. Members in respect of individual European arrest warrant and extradition cases involving their constituents.

As I indicated during the debate, and as my right hon. Friend the Home Secretary has said repeatedly in the context of the extradition review, it is vital that we strike the correct balance between effectively bringing offenders to justice and seeking redress for the victims of crime while protecting the fundamental rights of those who are sought for extradition. That point was made well by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). For that reason, this further debate is warmly welcomed.

Many interesting points have been made this evening, but the only one with which I flatly disagree was made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who said that 1,000 years ago habeas corpus was an important part of our constitution. I would normally defer to him in matters of mediaeval history, but I do not remember in the dying decades of the Anglo-Saxon kings, underrated though they are in history, that habeas corpus featured particularly highly.

[Jacob Rees-Mogg]

As it happens, one can trace habeas corpus back an extremely long way, but I do not think that I said that.

[Damian Green]

The record will tell us which of us recollects correctly.

Moving rapidly to the 21st century—

[Mr David Davis]

rose—

[Damian Green]

Oh dear, I should not have done this.

[Mr Davis]

For the first time in my life, I am ashamed of my hon. Friend the Minister—actually the record goes back to the Kings of Kent in the eighth century.

[Damian Green]

I can feel a fascinating and wholly irrelevant debate coming upon us, Mr Speaker.

[Mr Blunkett]

rose—

[Damian Green]

This will be the last intervention on mediaeval history.

[Mr Blunkett]

I just want to make the obvious point that what matters is not when habeas corpus was agreed in principle but whether people can implement it.

[Damian Green]

In his known wisdom, the right hon. Gentleman brings me back to the modern era.

When we entered office last year, we recognised that there were long-standing and deeply held concerns about the UK’s extradition arrangements with other EU member states and about our extradition treaty with the United States. That is why in the coalition’s programme for government we made a clear commitment to review the operation of the Extradition Act 2003 and the US-UK extradition treaty to ensure that they were even- handed. That was why the Home Secretary announced an independent review to be chaired by Sir Scott Baker and assisted by two lawyers—an important point given some of the criticisms of the Baker commission—who between them had extensive experience of extradition from prosecution and defence perspectives.

As I made clear during the debate in Westminster Hall, that panel undertook an extensive examination of the issues and carefully examined evidence from a range of parties representing all shades of opinion. Contrary to suggestions by some, the panel assessed representations from those who had experienced extradition first hand and the evidence of their families. It has also been suggested that the panel did not take evidence from solicitors representing the subjects of extradition requests. In fact, one of the panel members was himself an experienced legal representative of those subject to extradition proceedings and brought first-hand insight into the realities of extradition from the UK.

As the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) said, the review has evidently reached controversial conclusions, but I hope that we would all acknowledge that it is a serious piece of work, as pointed out by my hon. Friend the Member for Northampton North (Michael Ellis). I have been interested to hear the further points made this evening, and I am happy to assure the House that these opinions will be given the most careful scrutiny before we publish what action we propose to take in response to the review. There is a significant body of opinion from all sides that we need to assess seriously before reaching a decision.

Members on both sides of the House asked that we deal with individual cases of particular concern to them. I am, of course, happy to do that. Let me first summarise what I said about Babar Ahmad’s case. He was arrested for extradition purposes in August 2004, and in June 2007 he exhausted all the available domestic avenues for contesting the request for his extradition. He then applied to the European Court of Human Rights. On 12 June 2007, the Court imposed a stay on his extradition and on 8 July 2010 declared his case partially admissible. His case remains under consideration by the Court. The allegations against him in the United States relate to alleged conduct that took place while he was in the United Kingdom. As the House knows, an e-petition on behalf of Mr Ahmad calling for him to be put on trial in the UK has attracted more than 140,000 signatures.

Of course, the Government recognise the concern of those petitioners but it is not for the Government to decide if and when someone should be prosecuted in the United Kingdom.

[Caroline Lucas]

rose—

[Damian Green]

I am about to deal with the hon. Lady’s point.

The decision about whether to bring a prosecution is a matter for the independent prosecuting authorities, and the Crown Prosecution Service has to date decided not to prosecute Mr Ahmad in the UK.

[Caroline Lucas]

rose—

[Damian Green]

If the hon. Lady will hold on a second, I shall deal directly with her point.

The CPS has advised that a small number of documents relating to Mr Ahmad were seized by the Metropolitan police and were submitted to the domestic prosecutor for advice in 2004. The domestic prosecutor was specifically asked to advise on whether any of those documents might disclose offences under the Terrorism Act 2000 with a view to prosecution in the UK. I am advised that, on the material provided, there was insufficient evidence to mount a UK prosecution. However, when the decision was made not to prosecute Mr Ahmad in the UK, prosecutors here were aware of evidence against him in the possession of the US authorities. I understand that that evidence was far more extensive than that which was in the possession of the UK authorities. Although the CPS extradition team was in possession of some of the US material, it amounted only to that which was necessary to seek extradition, and was provided to the CPS for extradition purposes only.

The extradition proceedings in this country have concluded. The case has been heard extensively through all tiers of the UK extradition process, and extradition has been ordered. The UK courts have held that the US authorities have jurisdiction in relation to the offences of which Mr Ahmad is accused and that they are entitled to seek his extradition. The offences are crimes in both countries, thereby satisfying the extradition test of dual criminality. Mr Ahmad is now challenging extradition before the European Court of Human Rights. The Court has asked a number of questions in relation to the case; both sides have submitted observations on these points on several occasions. The extradition review panel highlighted in its report those cases that awaited a decision by the European Court of Human Rights and the amount of time that they had been before that Court. The panel recommended that the matter of the delay be taken up by the Government urgently and that the Court should be encouraged to give priority to those cases where extradition had been stayed. The Government are considering that recommendation, along with others, but the United Kingdom has pressed, and continues to press, for the Court to reach its decision as soon as possible.

Many concerns have been expressed about the length of time for which Mr Ahmad has been detained in custody awaiting the outcome of the extradition request. This has at all times been on the order of the Court, and we continue to press the Court to reach its decision on the case as soon as possible. Where the Court seeks observations or clarifications from the Home Office on the representations in the case, these are provided as soon as possible. We are acutely aware of the time that has passed since the extradition request was first made and of the importance of dealing with the matters raised as quickly as is consistent with fairness to all sides.

[Caroline Lucas]

Will the Minister agree to investigate why the CPS acknowledged and admitted that it had not seen all the information only on 23 November, after many, many years in which Babar Ahmad had essentially been in prison? If that information had been available earlier, the process here in the UK could have been much faster.

[Damian Green]

I am not sure that the hon. Lady’s last point is right, but I take her general point, and obviously the CPS will have heard what she has said.

Let me turn to the case of Gary McKinnon, which has been raised many times, not least by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes). This case is different from Mr Ahmad’s, as it falls to be decided by my right hon. Friend the Home Secretary. I shall briefly explain the reasons for this. Mr McKinnon has exhausted all rights of appeal under the Extradition Act 2003, and the European Court of Human Rights refused an application to impose a stay on his extradition. However, under the Human Rights Act 1998 the Home Secretary is under a duty not to act in a manner that is incompatible with a person’s rights under the European convention on human rights. She must therefore consider whether, as a result of events occurring after the extradition proceedings, it would be contrary to the convention for a person to be extradited. The sole remaining issue, therefore, is whether extradition is compatible with Mr McKinnon’s convention rights. The Home Secretary sought the independent advice of the chief medical officer, who has provided the names of two experts whom she believes to be well placed to provide evidence on the relevant medical issues. Those experts are preparing a report that will help the Home Secretary to determine whether extradition would contravene Mr McKinnon’s convention rights. We hope that the experts will report as soon as possible; but clearly a number of issues will need to be considered in depth.

During tonight’s debate, as in the previous debate, a number of concerns have been raised regarding specific European arrest warrant cases. We will take careful account of the points made by right hon. and hon. Members in respect of those cases. In the case of Benny Wenda, which was raised this evening by the right hon. Member for Oxford East (Mr Smith), we understand that an internal red notice for Mr Wenda has been issued by the Indonesian authorities. That does not constitute an extradition request for the purposes of the 2003 Act. Generally, if an extradition request is issued by a country in relation to which the person sought has refugee status, the Home Secretary can refuse to certify the request, and if it comes to the attention of the courts during extradition proceedings that the person sought has refugee status in relation to the country seeking extradition, the courts can discharge the person from extradition proceedings on human rights grounds. I hope that that helps the right hon. Gentleman.

It is worth my repeating what I said on 24 November. We share the concern expressed by my hon. Friend the Member for Esher and Walton (Mr Raab) and many others—including my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the hon. Member for Edinburgh West (Mike Crockart) —about the issuing of European arrest warrants for trivial offences. That is a significant issue which the Government seek to address as a matter of urgency. As I said in our earlier debate, I know that Members’ concerns are shared by other European Union member states and by the European Commission. While we are considering whether wider action is required to meet the challenge and resolve the problem, we continue to discuss the matter with, in particular, our Polish counterparts to encourage their prosecutors and courts to consider proportionality before a European arrest warrant is issued.

The debate has made clear that Members in all parts of the House understand that these are complex and important issues and that there is significant evidence to be assessed, all of which requires careful analysis and reflection. The debate has provided much more useful information and analysis, all of which I know the Home Secretary will take carefully into account. As soon as we can, we will announce what action we propose to take in the light of the extradition review.

21:56

[Mr Raab]

With the House’s permission, Mr Speaker, I rise for the second time to wind up what has been an excellent debate. Let me thank the Backbench Business Committee again for making it happen.

We have heard powerful speeches on the basic principles of justice which are at stake. I doubt that I shall have time to mention all of them, but the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) started us off with the benefit of his considerable experience as Home Secretary; my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) spoke passionately and at length about the importance of the presumption of innocence; the hon. Member for Aberavon (Dr Francis), the Chair of the Joint Committee on Human Rights, talked about the Committee’s review and report; and my hon. Friend the Member for Bournemouth West (Conor Burns) spoke about the flaws in the European arrest warrant. I am sure that we all look forward to the publication of his report in due course.

We also heard compelling speeches from a range of Members representing victims of rough justice under our extradition laws. My hon. Friend the Member for Enfield, Southgate (Mr Burrowes) spoke passionately and powerfully about the arbitrary treatment of Gary McKinnon, while my hon. Friend the Member for South Dorset (Richard Drax) talked about the Michael Turner case. I welcome the Minister’s engagement. He has listened very patiently, and I hope that he has been convinced of the case for reform and the strong consensus in favour of it in the House.

I listened carefully to the considered speech of the hon. Member for Rhondda (Chris Bryant). He seems to be rather lukewarm about the whole issue of extradition reform, but I am glad that at least he does not oppose the forum provision enacted by the previous Government.

In truth, it is for Members of Parliament in all parts of the House to stand up for our constituents, to stand up for our citizens, and to stand up for the basic principles of British justice.

Question put and agreed to.

Resolved,

That this House calls upon the Government to reform the UK’s extradition arrangements to strengthen the protection of British citizens by introducing as a matter of urgency a Bill to enact the safeguards recommended by the Joint Committee on Human Rights in its Fifteenth Report, HC 767, and by pursuing such amendments to the UK-US Extradition Treaty 2003 and the EU Council Framework Decision 2002 on the European Arrest Warrant as are necessary in order to give effect to such recommendations.

Business without Debate

Monday 5th December 2011 Commons Chamber

Delegated Legislation

Monday 5th December 2011 Commons Chamber

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Water Industry

That the draft Water Supply (Amendment to the Threshold Requirement) Regulations 2011, which were laid before this House on 31 October, be approved.—(Mr Dunne.)

Question agreed to.

committees

[Mr Speaker]

With the leave of the House, I propose to take motions 3 to 5 together.

Ordered,

Environmental Audit

That Simon Kirby be discharged from the Environmental Audit Committee and Paul Uppal be added.

Justice

That Claire Perry be discharged from the Justice Committee and Steve Brine be added.

Public Administration

That Nick de Bois be discharged from the Public Administration Committee and Priti Patel be added.—(Geoffrey Clifton-Brown, on behalf of the Committee of Selection.)

Bonn Conference (Women in Afghanistan)

Monday 5th December 2011 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Mr Dunne.)

22:00

[Margot James (Stourbridge) (Con)]

Hon. Members on both sides of the House will be aware that the Bonn conference on Afghanistan took place today. More than 1,000 people from 90 states attended and Britain was represented by our Foreign Secretary, who spoke up for the rights of Afghan women during the sessions. The Foreign Office estimated that 10 of the Afghan delegation of 40 were to be women, but I believe that the number was reduced by visa problems. Whether by accident or design, it was a great loss to the conference that Fawzia Koofi, Afghan MP and presidential candidate, was reported not to have obtained her visa in time to travel, although she had a place reserved at the conference. I look forward to hearing more from my hon. Friend the Minister about progress made in Bonn today.

I offer a brief historical perspective on the position of women in Afghanistan. As we all know, the country is a traditional and patriarchal society where women have limited access to decision making and resources. Women’s movement and their freedom to pursue activities outside the home have been severely limited over the years and mostly dependent on male family members. Before the arrival of the Taliban, the extent of the suppression of women varied between tribes and areas. In some parts of the country, women could and did work and had some access to education.

Historically, there has been far too much acceptance on the part of western politicians, mostly men, of the so-called traditional and cultural reasons for the persecution of women by men in many parts of the world, including Afghanistan. Indeed, had western opinion been more outraged at the policies of the Taliban from the mid-’90s onwards, perhaps a great deal of history could have been changed and many lives saved, but that was not to be and the Taliban were allowed to get on with their atrocities and extreme oppression uninterrupted until 9/11.

Jane Corbin, reporting for BBC “Panorama”, interviewed members of the group Humanitarian Assistance for the Women and Children of Afghanistan. She told viewers that, from 1996 to 2001, under the Sunni fundamentalist Government of the Taliban, women were not allowed to leave their homes without being escorted by a male relative and girls were not allowed to go to school. When women did leave their homes, they were required to wear a blue burqa, which covered their bodies from head to toe. The only opening was a small net that provided an eyehole for the women to see through.

In the programme, a female teacher said that during the Taliban regime she was stopped at the market by the Taliban and beaten with a whip. Her crime: she wore a shawl covering her body instead of a burqa. She said that she was too poor to purchase a real burqa, and after that beating she was stuck in her home for months until someone was able to give her a used one.

I will not dwell further on the Taliban. Their evil rule is well documented. Suffice it to say, and with great relevance to the current peace negotiations, women in Afghanistan remember those days with despair and fear their return.

Since 2001, there has been significant progress. The rights of women are enshrined in the Afghan constitution. There is, in theory at any rate, equality in the eyes of the law. Sixty-eight of the 249 seats in Parliament are reserved for women. Nine members of the High Peace Council are women—not many out of a membership of 79, but a sign of progress none the less. There is now a national Ministry for Women’s Affairs and in 2008 the Government launched a 10-year national action plan for women. It is, however, important not to adopt too celebratory a tone because, so far, there is not much to show for that Department’s work and many of the female Ministers and MPs are often pushed into largely symbolic roles, according to the very brave MP and Afghan presidential candidate Fawzia Koofi, whom I had the privilege to meet in October.

Subsequently, however, there have been some welcome changes, including the passing of the elimination of violence against women law. That came into effect in August 2009, and it is a major step forward in the legal protection of Afghan women’s rights. The law seeks to eliminate

“customs, traditions and practices that cause violence against women contrary to the religion of Islam.”

It does so by, for example, making it a crime to buy and sell women for marriage and to offer girls as a means of dispute resolution, and by criminalising forced and child marriage.

Fawzia Koofi has stated that improvements in the rights of women are inextricably linked to improvements in governance and ensuring that there is enough space and funding for non-governmental organisations dedicated to improving governance.

[Jeremy Corbyn (Islington North) (Lab)]

The hon. Lady is making an interesting speech. In the context of Government inaction in protecting women and of elements of corruption, she must be aware of the interesting book written by Malalai Joya, a former Member of Parliament in Afghanistan who was forced into exile because she tried to expose that corruption, and also, frankly, the hypocrisy of those who pretend to be doing something on behalf of women in Afghanistan, but in reality are doing absolutely nothing and just going along with the situation.

[Margot James]

The hon. Gentleman makes a good point in that there is a great deal of double-speak and hiding behind weasel words of progress. There are also a great many laws designed in theory to protect women which are not in operation on the ground. However, according to the women politicians from that country whom I have met, some progress is being made, and I shall outline the progress that is reported to me by people on the ground.

There are excellent legal aid centres, set up by non-governmental organisations Womankind Worldwide and the Afghan Women’s Network, in Herat, Kabul and Jalalabad. They allow victims of domestic and sexual violence to obtain legal advice and assistance. They also provide training for law graduates on the rights of women under the Afghan constitution. Womankind Worldwide and the Afghan Women’s Network will also collaborate in monitoring how the elimination of violence against women law is being implemented between now and 2014.

The position of women in education and health has also improved. Six times more children go to school now than when Afghanistan was under the rule of the Taliban. Although the total proportion is still only half the children in the country, a third of the pupils are girls, and there are now more than 3 million girls in education—although not many at secondary level. This is a step forward given that the education of girls was almost entirely banned under the Taliban.

In health, there have been great improvements in life expectancy, and a significant decrease in infant and child mortality over the past five years. Save the Children estimates that 20,000 community health workers and 2,500 midwives have been trained since 2003.

Despite the progress that has been made, many obstacles to the freedom of women remain, and there have been setbacks along the way. Much of the judiciary has proved impervious to change. The absolute denial of any form of justice to women under the Taliban is what provokes the greatest fear about the possible return of its rule to parts of the country, and the difficulties women have experienced in upholding their supposed equality before the law are legion. It is illustrated by the scandal of some 300 women estimated to be in Afghan jails at the moment charged with so-called moral crimes. These are women who have run away from forced marriages and terrible domestic violence. Worst of all, these are women such as Gulnaz, who was imprisoned for being raped—one almost has to repeat that, so incredible and barbaric is such a situation. Having been raped by a cousin, Gulnaz was imprisoned for 12 years. I will return to her case briefly in a moment.

So the progress is at best fledgling, it is certainly vulnerable, and it is patchy and non-existent in some regions. Real progress has, none the less, been made since 2001 and it is very much worth fighting to protect. I call on the Government not to trade away the rights of the women of Afghanistan in order to conclude negotiations with the Afghan Government and representatives of the insurgency.

It is important to acknowledge the role of international aid, including the Department for International Development’s commitment of £130 million per annum, the considerable efforts of non-governmental organisations and the courage of individual Afghan women. I am talking about women such as Selay Ghaffar, director of Humanitarian Assistance for the Women and Children of Afghanistan, who met me and other MPs here last week on her way to the Bonn conference.

We need to recognise that after the withdrawal of troops in 2014 we will need to leverage this work all the more, and ensure that our aid policies and political pressure support the excellent work of organisations such as the Afghan Women’s Network, Humanitarian Assistance for the Women and Children of Afghanistan, ActionAid, CARE International and Womankind, to name some of the most active and effective NGOs in the field. International pressure must be applied to all Governments, and most of all the Afghan Government, as it has been today in Bonn, not to trade away the rights of women during these negotiations.

The Karzai Government have been shown to succumb to international pressure from time to time, and we need to build on that. When the law to legalise rape in marriage was almost passed last year, the international chorus of disapproval forced the Afghan Government to retreat, and The Times has done an excellent job in highlighting the appalling case of Gulnaz, whom I mentioned earlier. She had been imprisoned for being raped, and in response to that international pressure her case has been reviewed by President Karzai and she is to be released. At one point, she faced the horrific prospect of having to marry her attacker as a condition of her release, but that now seems unlikely, thank goodness.

We then encountered the shelter regulation, which aimed to deprive women’s NGOs of their right to run shelters for victims of violence and to make them hand over the shelters to representatives of the Ministry of Women’s Affairs. That step was proposed to hide violence towards women by Government officials, including MPs and their sons. That was yet another area where international pressure, supporting the brave campaigning by Afghan women, forced the Government to think again. Both prior to and following the withdrawal date of 2014, it is essential that we mobilise international pressure and aid policies to prevent the hard-won gains that women have made from being sidelined or overturned.

In its vision for women and girls strategy published earlier this year, DFID set out the need for women to take a central role in our development policy. We know that when women are better educated, they are more likely to prosper economically and send their children to school. The World Food Programme has shown that when women are responsible for distributing food it is far more likely to reach the children who need it most. Not just in Afghanistan, but across the developing world, there is plenty of evidence to show that improving the lives and rights of women is a precondition of development, peace and security, which is why joining in this battle with the women of Afghanistan is so much in our own interests post-2014.

In conclusion, women at last have a voice in Afghanistan and the Taliban would dearly like to silence it. It is incumbent on us all to ensure that they do not succeed. The United Nations Assistance Mission in Afghanistan welcomed a joint report, launched on the eve of the Bonn conference last week by a group of Afghan civil society organisations and the Afghanistan Independent Human Rights Commission, called “Afghan People’s Dialogue on Peace”.

It is humbling to read the views of the ordinary people of Afghanistan in that report. They express their view on the peace process and what is important to them and to their community’s future. The things that are overwhelmingly important to them are important to people everywhere: integrity in the Government, an end to corruption, basic health and education services, and an end to the oppression of women.

Let me finish by quoting the words of a female lawyer from the Baghlan province who contributed to the report. She expressed a view that the report said was common to many participants:

“All Afghan citizens including women should be equally treated by their Government and they should be able to enjoy from their citizenship rights individually, not based on their gender, tribe or ethnic group; women should not be considered as second level citizens, and their appearance in social or political affairs should not be symbolic or based on their gender; they should be empowered in all aspects of their life, and all human rights standards must be respected by our law enforcement authorities.”

We in this Parliament and in Britain owe it to the brave men who have sacrificed their lives in our mission in Afghanistan and to the brave women who are fighting there and who, in some cases, are sacrificing their lives in the pursuit of the freedom of justice in that country to support those words. I am grateful to hon. Members for their support in this very important debate.

22:17

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr Henry Bellingham)]

I congratulate my hon. Friend the Member for Stourbridge (Margot James) on securing this important debate and praise her for her well-informed and compelling speech this evening. It is exceptionally timely, because today’s Bonn conference follows 10 years on from the first Bonn conference. That set Afghanistan on the road to recovery from the damage caused by 30 years of civil war and the misrule of the Taliban. The Afghanistan of 2011 is unrecognisable from the Afghanistan of 2001.

The past 10 years have been difficult but real progress has been made. The Afghan economy is growing and the Afghan Government are providing increasing levels of basic services to the Afghan people, including in education and health. In 2001, under the Taliban, only 1 million children attended school, none of whom were girls. As my hon. Friend pointed out, by last year nearly 6 million children were attending school regularly and more than 2 million of them were girls. More than half the population can now access a health facility within one hour’s walk, compared with 9% in 2002. Security is improving in many parts of the country, increasingly delivered by the Afghan national security forces. There is also progress on governance and the rule of law, but many significant challenges remain.

Today, in Bonn, the Afghan Government have chaired an international conference on Afghanistan to address these challenges and agree a path towards a stable and secure future. Some 100 delegations and about 1,000 participants attended the event. They shared a common objective: to ensure that Afghanistan never again becomes a safe haven for international terrorism and to ensure that the Afghans can be responsible for their own security and their own future.

At the conference, the international community sent a strong message of its long-term commitment to Afghanistan. UK combat troops will leave Afghanistan by the end of 2014, but our support for the country will not cease. Participants emphasised that international support for sustainable Afghan national security forces needs to continue after 2014. The international community will work to define a clear vision and an appropriately funded plan for the ANSF before the NATO summit in Chicago in May next year.

The conference also reaffirmed the international community’s readiness to support the Afghan Government in developing their economy. International partners will direct financial support to Afghanistan to help to address her continuing budget shortfall and to achieve self-sustainability. We will work with the Afghans and international partners on detailed plans which we hope to discuss at the Tokyo conference planned for July next year. Alongside those steps, the Afghan Government are committed to revitalising the reform process agreed in Kabul last year and to accelerating progress on the key development priorities. Participants also gave their backing to the Afghan Government’s commitment to an inclusive and representative peace process and agreed a set of guiding principles. In addition to the internal issues, the international community signalled its firm support for improved regional co-operation by backing the Istanbul process agreed at the Istanbul conference in November.

My hon. Friend asked about today’s conference. I can tell her that it focused on a number of key issues relating to the role of women in Afghan society and politics. The conference made it clear, first, that the peace and reconciliation process must be inclusive and must represent the legitimate interests of all the people of Afghanistan, regardless of gender or social status. Secondly, the conference made it clear that the outcome of the peace process must respect the Afghan constitution, including its human rights provisions—notably the rights of women. The Afghan Government reaffirmed that the Afghan people will continue to build a stable, democratic society, based on the rule of law, in which the human rights and fundamental freedoms of its citizens, including the equality of men and women, are guaranteed under the Afghan constitution. The fundamental freedoms and rights enshrined in the Afghan constitution, including the rights of women and children, are key to Afghanistan’s future.

It was encouraging to see that 25% of the Afghan official delegation was female and that there was significant representation by women in the Afghan civil society delegation that attended Bonn. In addition, one of the two civil society representatives who participated in the main conference today was female. The Minister for Equalities, my hon. Friend the Member for Hornsey and Wood Green (Lynne Featherstone), attended the civil society forum preceding the Bonn conference. She also held a meeting with representatives from the Afghan Women’s Network. In all her contacts, she reiterated the importance of women’s rights and the UK’s long-term commitment to Afghanistan post-2014.

At the civil society forum, the German Foreign Minister Guido Westerwelle and the Afghan Foreign Minister Rassoul both reiterated the commitment of the international community and the Afghan Government to upholding the rights of women in Afghanistan now and in future. Over the past 10 years, the status of women in Afghanistan has improved. A quarter of the MPs now in the Afghan Parliament are female, there are nine female members of the high peace council and there is the first female provincial governor in Bamiyan province. There are clear signs of the effective participation of women in the political process.

The Afghan Government have worked to support women throughout Afghan society by establishing a Ministry of Women’s Affairs, which promotes women’s rights in Afghanistan and implements the national action plan for the women of Afghanistan. In September 2010, the Afghan Government also established a human rights support unit at the Ministry of Justice to co-ordinate and advise on human rights policy and legislation across the entire Government. To complement the work of the Afghan Government there is a growing network of women’s NGOs and advocacy groups across the country, which are increasingly leading the way in calling for change on women’s rights issues and on the wider human rights agenda.

The UK Government continue to support this effort alongside the Afghan Government, local and international NGOs, civil society organisations and international partners to continue improving the status of women in Afghanistan. For example, we have provided support to both the Afghanistan Independent Human Rights Commission and the human rights support unit in the Ministry of Justice, including human rights training. We participate in the AIHRC donor group to ensure that the commission addresses human rights protection for men and women in Afghanistan. I praise the support from DFID, and I am very pleased to see the Under-Secretary of State for International Development on the Front Bench with me this evening. That is a sign of DFID’s commitment and determination to make progress.

Our national action plan on United Nations Security Council resolution 1325 on women, peace and security includes a country action plan for Afghanistan which co-ordinates cross-Government activities on gender issues.

[Jo Swinson (East Dunbartonshire) (LD)]

I welcome the Minister’s message that involving women is important for security. I was fortunate to visit Afghanistan last month with a cross-party group of MPs and we heard much about the progress being made in training the army and the number of new recruits. To the end that we all seek, can the UK Government assist us by including in the monthly reports progress on gender equality and women’s rights as we head towards transition in 2014?

[Mr Bellingham]

I am grateful to my hon. Friend for that practical and sensible suggestion. I assure her that we will take it on board. I can see my DFID colleague nodding.

We have undertaken wider work in areas such as education, economic opportunities and participation in public life. During a recent visit to Kabul, my right hon. Friend the Secretary of State for International Development launched Strengthening Afghanistan’s civil society project “Tawanmandi”, which will help Afghan civil society organisations to engage more effectively with the Afghan Government and help to make the Government more accountable and responsive to their citizens, particularly women.

Although there is significant progress, there is still much more to be done. As my hon. Friend the Member for Stourbridge made clear, women in Afghanistan continue to face huge challenges, including high illiteracy rates, domestic violence, forced marriages, poor access to health care and lack of livelihoods. The isolation of some rural communities makes it difficult to raise awareness of women’s rights. I agree with my hon. Friend that progress in some of the remoter regions has been patchy, and we need to do our level best to reinforce the progress that has been made.

At the Bonn conference my right hon. Friend the Foreign Secretary made clear in his intervention the UK’s strong support for women’s rights in Afghanistan, and we continue to make it clear that any political settlement must be inclusive and address the concerns of all Afghan citizens. We will continue to support the Afghan Government as they work to address these issues, and continue to emphasise that a political system which represents and includes all Afghans, regardless of gender or ethnicity, is the best way of securing a peaceful and stable Afghanistan.

I conclude by praising my hon. Friend the Member for Stourbridge for her indefatigable energy in pursuing and pressing this issue. Her work and her focus and passion give hope to many millions of women in Afghanistan.

Question put and agreed to.

22:28

House adjourned.

Petition

Monday 5th December 2011 Petitions

Monday 5 December 2011

Antibiotic Action Initiative

Monday 5th December 2011 Petitions

The Petition of supporters of Antibiotic Action, a national initiative of the British Society for Antimicrobial Chemotherapy,

Declares that the Petitioners believe that the treatment of common and serious bacterial infections will be seriously compromised unless urgent steps are taken to stimulate investment in the discovery and development of new antibiotics, further declares that to support the discovery, development and bringing-to-market of new antibacterial agents, opportunities should be identified to safely streamline and accelerate the licensing processes for new antibiotics; declares that the commercial challenges faced by industry in developing and bringing new antibiotics to the marketplace should be addressed, and declares that more partnership between academia and pharmaceutical and diagnostics companies in the UK should be encouraged, in order to maximise the conversion of discovered-candidate molecules into licensed antibiotics available for use on the NHS.

The Petitioners therefore request that the House of Commons urges the Government to review the licensing processes for new antibiotics, conduct a review of the commercial challenges faced by the pharmaceutical industry in developing and bringing new antibiotics to the marketplace and encourage more partnership between academia and pharmaceutical and diagnostics companies in the UK.

And the Petitioners remain, etc.—[Presented by Mr Kevin Barron, Official Report, 15 November 2011; Vol. 535, c. 812.]

[P000983]

Observations from the Secretary of State for Health, received 2 December 2011:

Antibiotic resistance is a complex global public health issue. To tackle it effectively requires an integrated approach at national, European and International level.

The UK is signed up to the WHO European Strategic Action Plan on Antibiotic Resistance which encourages the sharing of information, developing effective interventions to prevent and slow down the development of multi-resistant bacteria and working together to stimulate the development of new drugs and diagnostics.

The Government recognise that the importance of antibiotics in the treatment of resistant bacterial infections and are focusing their efforts at a national level on monitoring infections, promoting responsible prescribing and use of antibiotics as well as good infection control measures.

Work to improve the licensing process is already underway with the development of a revised guideline on new antibacterial clinical development. We are also pursing national initiatives to improve prescribing practice by healthcare professionals through the development of guidance such as the new “Start Smart Then Focus” and further guidance for GPs which will be published next year, as well as work which is being progressed through the Technology Strategy Board to help stimulate new developments for example in diagnostics. In addition, we are working with partners to explore how best to stimulate development of new antibiotic drugs.

We are also pushing for concerted action at an EU and international level and expect the recently published European strategic action plan to facilitate greater research collaboration with industry and others and build on the recommendations of the Transatlantic Taskforce on Antimicrobial Resistance (TATFAR).

Written Ministerial Statements

Monday 5th December 2011 Written Statements

Monday 5 December 2011

ISA Reinstatement (Failure of Financial Firms)

Monday 5th December 2011 Written Statements

[The Financial Secretary to the Treasury (Mr Mark Hoban)]

I am today announcing the Government’s intention to make changes to the ISA rules that will benefit investors whose ISA savings have been affected by the failure or default of a financial firm. This includes ISA investors affected by the collapse of Lehman Brothers.

Under current ISA rules, an individual can pay into their ISA a total amount up to the relevant subscription limit each year. The 2011-12 subscription limit for “adult ISAs” is £10,680, of which £5,340 can be in cash.

Where an ISA is affected by the failure or default of a financial firm, any reinstatement of sums held in the account at that point, or investment of any subsequent compensation received, is currently treated as a new ISA subscription, and therefore counts towards the normal annual limit.

We intend to change the ISA rules to permit investors affected by such a failure or default to make certain ISA investments over and above the normal subscription limits.

We intend that investors who have lost their cash ISA will be permitted to reinstate up to the balance of their account at the time of the firm’s failure in a new ISA, outside the normal subscription limits.

Where a stocks and shares ISA has been affected, we intend that the investor will be permitted to invest any compensation (or any similar payment) derived from assets held within their ISA in a stocks and shares ISA, outside the normal subscription limits.

We propose to apply different arrangements for cases in which Lehman Brothers was, at the time of its collapse, the sole counterparty to an ISA product. Affected investors will be permitted to reinstate up to the balance of their ISA at the time of this collapse, outside the normal subscription limits. This is irrespective of whether any compensation has been paid to the investor.

Further details can be found in the HM Revenue and Customs ISA bulletin, published today—a copy of which I have placed in the Library. I have asked HM Revenue and Customs to consult ISA managers and other interested parties on the detailed rules required to implement these changes. I anticipate that draft amending regulations will be made available for consultation in the new year, and that finalised regulations will be laid in spring 2012.

The changes we intend to make will provide a principles-based approach which—together with the Financial Services Compensation Scheme’s deposit guarantee scheme and other compensation arrangements—will enable investors whose ISAs are affected by the failure or default of a financial firm to continue to benefit from tax-advantaged savings. They also demonstrate the Government’s commitment to ensure that the ISA remains a secure, accessible and tax-advantaged saving product.

Local Government Finance

Monday 5th December 2011 Written Statements

[The Parliamentary Under-Secretary of State for Communities and Local Government (Robert Neill)]

This Government are determined to support businesses—large and small—to support growth and build a stronger economy. In support of those aims, the Government announced two important business rates measures in the autumn statement. We will:

double the levels of relief available to small business ratepayers for a further six months on top of the existing two-year scheme; and

enable business ratepayers to defer payment of 60% of the RPI increase (5.6%) in their 2012-13 business rates bills.

Extending the period for which levels of small business rate relief are doubled means that eligible small businesses will benefit from significant additional reductions in their business rates bills throughout the whole of 2012-13. Approximately half a million businesses in England are expected to benefit, with about a third of a million businesses paying no rates at all for that period.

We have also listened to business concerns about the RPI increase for 2012-13. We are therefore giving businesses the option of spreading the increase over three years. Businesses will be able to defer payment of 60% of the RPI increase in their 2012-13 rates bills until 2013-14 and 2014-15. This will give businesses flexibility to manage their rates bills in the current economic climate and help their cash flow.

Those measures are in addition to the ones that we are already delivering through the Localism Act 2011. Through the Act we are:

simplifying the process for claiming small business rate relief;

waiving £175 million of backdated business rates demands levied on businesses, including some in ports;

giving local authorities wide-ranging, discretionary powers to grant business rates discounts; and

ensuring that all future business rates supplements projects will have to be put to the ballot so that liable businesses can decide whether to impose the business rate supplement upon themselves.

Taken together, the support provided through these measures will help businesses across the country to prosper.

Single Payment Scheme

Monday 5th December 2011 Written Statements

[The Minister of State, Department for Environment, Food and Rural Affairs (Mr James Paice)]

I am pleased to confirm that as at the end of 1 December, the first day of the 2011 single payment scheme (SPS) payment window, the Rural Payments Agency (RPA) had released payments totalling over £1.2 billion (71.6% of the estimated total fund) to some 84,600 English farmers (80.8% of the estimated total of eligible claimants). Payments to farmers will continue to be made as soon as validation of their claims is complete, with the values adjusted to reflect any significant outstanding overpayments from previous years. There remains much to do, but this promising beginning places RPA in a good position to meet its first SPS 2011 performance indicator, namely to pay 78% of the total estimated fund value to a minimum of 86% of eligible claimants by the end of December 2011.

In line with the commitment in my statement of 8 November, Official Report, column 12WS, RPA will write in early December to those farmers who are unlikely to be paid during the month in order to both explain the additional work that is required to validate their claim and provide an indicative time scale for how long that type of work can take. While it will not be possible to provide specific dates when payments will be made, I hope the additional information being supplied this year will help farmers with business planning.

I will continue to keep the House informed on the agency’s progress.

EU Foreign Affairs Council

Monday 5th December 2011 Written Statements

[The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)]

I attended the Foreign Affairs Council (FAC) in Brussels on 1 December.

The FAC was chaired by the High Representative of the European Union for Foreign Affairs and Security Policy, Baroness Ashton of Upholland. A provisional report of the meeting and all conclusions adopted can be found at:

http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/126518.pdf

The agenda items covered were as follows:

Western Balkans

The discussion focused largely on Serbia, and the EU-facilitated dialogue between Belgrade and Pristina. All expressed concern at implications for the dialogue of recent violence in northern Kosovo. I made clear the UK’s strong support of enlargement in general, but on the basis of meeting the required conditionality. I also stressed the importance of Kosovo’s EU aspirations. The General Affairs Council will return to this issue on Monday.

On Bosnia and Herzegovina, I emphasised the importance of focusing attention on the need for political progress on the ground, including the formation of a state-level Government.

Iran

Ministers agreed conclusions (see link) setting out the EU’s serious and deepening concerns over Iran’s nuclear programme following the latest report by the International Atomic Energy Agency (IAEA), which clearly set out possible military dimensions. They also decided to intensify pressure against the nuclear programme by sanctioning another 180 individuals and entities.

I took the opportunity to thank EU Ministers for their support during and since the attack on our Embassy in Tehran. All my counterparts expressed solidarity and the need for a united response, and a number have already recalled their ambassadors for consultations. Ministers agreed to issue the following response from the Council:

“The Council is outraged by the attack on the British Embassy in Tehran and utterly condemns it. It is a violation of the Vienna Convention. It also deplores the decision to expel the British Ambassador from Tehran. The Council considers these actions against the UK as actions against the European Union as a whole. The EU is taking appropriate measures in response.”

After the meeting I made the following statement:

“Today, the EU demonstrated clear unity and solidarity with the UK on the outrageous attacks on our Embassy in Tehran. No difficulty in relations can excuse the Iranian regime’s complete failure to protect diplomatic staff and property. That is why yesterday I announced the closure of our Embassy in Tehran and the Iranian Embassy in London. This is also why the EU and wider international community have expressed universal condemnation. I welcome the fact that France, Germany, Spain, Italy and the Netherlands have recalled their Ambassadors in Tehran for consultations.

I strongly welcome the EU’s decision to intensify pressure on Iran following the IAEA’s report by sanctioning another 180 individuals and entities. These include those directly associated with the nuclear programme and entities associated with the Islamic Republic of Iran Shipping Lines and the Iranian Revolutionary Guard Corps.

The EU made very clear that it will not bow to Iran’s intimidation and bullying tactics. We will not back down and agreed today to work on further sanctions, including in the areas of finance and energy, by the next Council meeting. We want Iran to come to the table and negotiate meaningfully about its nuclear programme. Despite events this week we still want a diplomatic solution.”

Iraq: Camp Ashraf

Baroness Ashton briefly raised Camp Ashraf and the interest the European Parliament was taking on this issue. Member states agreed that this was an issue for the UN and Iraq rather than the EU.

Southern Neighbourhood

Over lunch, Ministers had a positive exchange of views about Syria with the Arab League secretary-general, Nabil El Araby. Ministers agreed conclusions (see link above) and further EU sanctions against the Syrian regime. After the meeting I made the following statement:

“I strongly welcome this substantial further package of EU sanctions, targeted on President Assad, his regime and those who support them. This tenth round of sanctions aims to increase pressure on the Syrian regime to stop the continuing violent repression of the Syrian people. EU sanctions stand alongside measures introduced by Turkey yesterday including the freezing of assets belonging to Assad and individuals in the regime, and the Arab League’s decision to impose unprecedented sanctions. I welcome these moves which send a clear message that the Syrian regime’s actions have left it isolated.

EU sanctions are part of a broad international response to the horrific abuses perpetrated by a regime that has lost legitimacy. The UN Human Rights Council’s Commission of Inquiry report, issued on 21 November, highlighted the systematic and wide ranging nature of these abuses including through compelling testimony from many of those who have suffered at the hands of the Syrian regime. The UK worked closely with international and regional partners to secure a third UN Human Rights Council special session on Syria, on Friday 2 December.

The UK continues to support the Arab League’s efforts to bring an immediate end to the violence and supports the work of Syrian oppositionists towards realising the aspirations of the Syrian people for freedom, dignity and a new political system.”

On Egypt, Ministers agreed conclusions (see link above) welcoming the peaceful start to elections but expressing serious concern at the recent violence and calling for a swift transfer to civilian government.

Ministers agreed conclusions on developments in the Southern Neighbourhood and the EU’s response to the Arab spring, including the need for an offer of market access to Tunisia, Egypt, Jordan and Morocco (see link above). The Council also acknowledged through Conclusions (see link above) the Polish presidency’s initiative to create a European Endowment for Democracy.

Middle East Peace Process

Ministers also had a short exchange of views with the Arab League secretary-general about the latest developments in the middle east peace process.

Common Security and Defence Policy (CSDP)

Ministers agreed a useful package of CSDP measures (see link above) focused on improving the EU’s contribution to international security on the ground. They agreed to prepare for a small, focused and carefully calibrated civilian CSDP mission in the Sahel, focusing on policing, security, infrastructure development and regional training; and affirmed the EU’s readiness to assist the new Libyan authorities if requested. In line with the UK’s priorities in the Horn of Africa, Ministers agreed to plan for a new mission to help countries in the region improve their own civil maritime security.

These new operations fit well with our vision of CSDP, bringing together a range of security tools for practical effect in areas where NATO, which remains the cornerstone of our security, would not be engaged. In order to improve the coherence of this effect in the Horn of Africa, Ministers agreed to consider activating on a temporary ad hoc basis the existing EU Operations Centre, designed for low-intensity small-scale civilian or civil-military missions that do not require a military headquarters. This could bring together the EU’s work to strengthen regional maritime capacities in Somalia and the wider Horn of Africa region with its existing military training for Somali security forces, currently run through the EU’s planning staffs. The EU’s naval counter-piracy mission Atalanta will continue to be run from the UK’s military operational headquarters at Northwood. This further demonstrates that the EU has all the structures it needs for effective crisis management and does not require new, costly and duplicative institutions such as a permanent EU operational military headquarters - something this Government will never agree to. Council agreed that, without prejudice to the treaties, any future decisions on planning and conducting EU operations will be taken on the basis of unanimity and inclusiveness.

Ministers also highlighted the importance of improving Europe’s civilian and military capabilities, and of strengthening the EU’s partnerships with NATO, the UN and others. We hope that the focus of debate on CSDP will now shift from institutions to practical outcomes, effectiveness and real missions that actually make a difference in the world and can improve our own security and that of other countries within the EU and beyond.

Public Records (Colonial Documents)

Monday 5th December 2011 Written Statements

[The Minister for Europe (Mr David Lidington)]

Further to the statements to the House by the Foreign Secretary on 5 May, Official Report, column 24WS and 30 June 2011, Official Report, column 66WS, I wish to inform the House of our plans to make available to the public, over the next two years, the large collection of colonial administration files currently held by the Foreign and Commonwealth Office (FCO).

The timetable for transfer of these files to the National Archives (TNA), which has been approved by Professor Badger, the independent reviewer appointed by the Foreign Secretary, follows our undertaking to move rapidly to put these papers into the public domain.

In keeping with this Government’s commitment to transparency and openness, the entire collection of migrated files will be transferred to TNA. None of the papers will be destroyed. Redactions will be kept to an absolute minimum, for example in order to comply with the Data Protection Act. We expect that 99% of the material will be available for the public to read.

The files will be reviewed and transferred in alphabetical order of the colonial territory concerned with the exception of Kenya, Cyprus, British India Ocean Territory (BIOT) and Malaya, which will be prioritised because there has been particular interest. The first batch of files, representing around 16% of the total collection, is expected to be available for public view at TNA in April 2012. This will include material from Aden, Anguilla, Bahamas, Basutoland, Bechuanaland and Brunei as well as the BIOT and Malaya files and the first tranche of papers from Kenya and Cyprus. Given the volume of material from Kenya and Cyprus, the remaining files will be reviewed and transferred in batches over the following months.

The aim is to have all the papers transferred before the end of 2013. We will be publishing a more detailed timetable on the FCO’s website.

Abdelbaset al-Megrahi

Monday 5th December 2011 Written Statements

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)]

My noble Friend the Minister of State, Foreign and Commonwealth Office, the right hon. Lord Howell of Guildford, has made the following written ministerial statement:



On 23 November, Official Report, House of Lords, column 1051, I said that part of the Dumfries and Galloway constabulary would embrace the question of Abdelbaset al-Megrahi’s condition and that we were awaiting the precise details of his health from the Libyan Government.

I would like to clarify that the Government have not asked the Libyan Government to provide information about Mr al-Megrahi’s health. The terms of Mr al-Megrahi’s release from prison on licence specify that he has to comply with a number of conditions set by the Scottish Ministers. These conditions include the submission of a monthly medical report to East Renfrewshire council. As I said on 23 November, the Foreign and Commonwealth Office have passed on a request from the devolved Administration to the Libyan chargé d’affaires in London asking the Libyan authorities to assist in ensuring that the supervision arrangements of Megrahi’s licence are observed.

The Dumfries and Galloway constabulary’s investigation concerns the involvement of others, with Mr al-Megrahi, in the Lockerbie bombing. The Government will continue to support the police in following any new leads, including any new information that may come to light concerning Mr al-Megrahi.

Missing Children and Adults

Monday 5th December 2011 Written Statements

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

Safeguarding vulnerable members of our society is a key priority for this Government and I am writing to inform the House that we have today published a cross-Government missing children and adults strategy which seeks to ensure we are doing all we can to safeguard missing children and adults and to support their families. A copy of the strategy has been placed in the House Library.

There are an estimated 360,000 reports of people going missing in the UK each year amounting to approximately 200,000 missing people. Children and young people make up approximately two thirds of the missing reports and account for an estimated 140,000 children who go missing every year in the UK. Although the vast majority of people who go missing return or are found quickly, many vulnerable children and adults suffer harm and exploitation while missing and some never return.

Identifying and ensuring the safest return possible for these vulnerable children and adults is a key part of the police service’s child protection and wider safeguarding role. However, tackling missing persons issues requires a multi-agency response and co-ordination across a range of policies and operational partners including the police, local authorities and the health sector.

Following the recent all-party parliamentary group (APPG) inquiry into support for families of missing people in July 2011, I accepted the overarching recommendation that there should be a cross-Government outcomes policy framework for missing persons. I also accepted the principles behind the inquiry recommendations, including that we can and should do better in the support we provide to families and announced that I would lead development of a cross-cutting strategy on missing children and adults.

Evidence from the APPG inquiry and consultation with stakeholders and key delivery partners showed that, although we have the right policies and responsibilities in place to tackle this issue, agencies are not always clear about these roles and responsibilities, nor do they always recognise the risks of harm that vulnerable children and adults face when missing.

With this in mind, the strategy I have published today provides a framework in which we can all work to collectively deliver the best protection possible for missing children, adults and their families. It includes a small number of strategic objectives which we believe provide the right foundations for any effective local strategy and provides a framework for local areas to put in place their own arrangements. I believe this strategy provides a core framework against which local agencies with a role in tackling this important issue can review the strategy they have in place with their local partners—and consider whether they can and should be doing more.

With the right priority and focus on this issue, and by ensuring we are all working together in the most effective way possible, I believe this strategy will help support the step change in delivery needed at a local level to ensure we provide vulnerable missing children and adults and their families with the help, protection and support they need.

Independent Living Fund

Monday 5th December 2011 Written Statements

[The Parliamentary Under-Secretary of State for Work and Pensions (Maria Miller)]

The independent living fund (ILF) operates as an executive non-departmental public body of the Department for Work and Pensions and provides discretionary cash payments to disabled people to support independent living.

In a written statement on 13 December 2010, Official Report, column 85WS, I announced that, having reviewed the role of the ILF, the fund would remain closed permanently to new applications, but that the care and support packages of current users would be protected until the end of this Parliament.

That decision followed an independent review of the ILF in 2007 which recommended reform to ensure long-term sustainability, and reflected a commitment to ensure that the care and support needs of all disabled people are delivered equitably as part of local authorities’ broader independent living strategies in line with local priorities and accountability.

We committed to a formal consultation in 2011 on how existing users would be supported in the future. That consultation should be placed in the wider context of the reform of the care and support system and will therefore now take place in spring 2012, alongside the publication of the planned White Paper on the future of care and support in England.

DWP remains committed to working with the Scottish Government and Welsh Assembly Government on options for the future support for users in Scotland and Wales.

Grand Committee

Monday 5th December 2011 Grand Committee

Monday, 5 December 2011.

Arrangement of Business

Monday 5th December 2011 Grand Committee

Announcement

15:30

[The Deputy Chairman of Committees (Baroness Harris of Richmond)]

My Lords, before the Motion is considered, perhaps I may remind noble Lords that the Motion before the Committee will be that the Committee do consider the statutory instrument. The Motion to approve the instrument will be moved in the Chamber in the usual way. If there is a Division in the House, the Committee will adjourn for 10 minutes.

Renewable Transport Fuel Obligations (Amendment) Order 2011

Monday 5th December 2011 Grand Committee

Considered in Grand Committee

15:30

Moved By

[Earl Attlee]

That the Grand Committee do report to the House that it has considered the Renewable Transport Fuel Obligations (Amendment) Order 2011.

Relevant documents: 33rd Report from the Joint Committee on Statutory Instruments, 44th Report from the Merits Committee

[Earl Attlee]

My Lords, the draft Renewable Transport Fuel Obligations (Amendment) Order 2011 will give legal effect to changes to an existing scheme that requires suppliers of fossil fuel for road transport to ensure that a proportion of the fuel that they supply comes from renewable sources. This is the renewable transport fuel obligation, or RTFO. The legislation before us is of key importance in our efforts to tackle climate change and will implement the transport elements of the EU renewable energy directive, or RED.

Biofuels are the only alternative to fossil fuel in transport that presently can be delivered on the scale required to meet our immediate environmental challenges. They will play a key role in allowing us to keep within our forthcoming carbon budgets and to meet our European renewable energy targets. However, biofuels are not the silver bullet that some once believed. There remain legitimate concerns about the sustainability of some biofuels. With this in mind, I make it clear that we are not setting out a new trajectory for increased biofuel targets beyond those already set under the current RTFO. The order is about making biofuels more sustainable; it is not about supplying more biofuel.

Given the environmental concerns and the need to consider how best to deploy biofuels across transport sectors, there is no proposal to increase the obligation levels already set under the 2007 order, which requires the level of biofuel to reach 5 per cent by volume of the total fuel used for road transport in the obligation year that starts in April 2013. The target will remain at these levels for subsequent years. This order would place a duty on the Secretary of State for Transport to keep under review the obligated levels set under the 2007 order. It is our intention to consult in 2012 on possible increases to the percentage of biofuel that will have to be supplied in the period 2014 to 2020.

It may be useful for me to provide a brief overview of the current regulatory framework so that the changes we are considering today can be better understood. Suppliers of fossil fuel for road transport have an obligation to supply a small percentage of biofuel alongside the fossil fuel: currently 4 per cent. Suppliers of biofuel are awarded a certificate for each litre of fuel that they supply. The renewable transport fuel certificates—RTFCs—can be traded on the open market. This means that entities supplying biofuels that do not have an obligation to do so may still benefit from helping obligated suppliers to meet their targets as they can sell their certificates to those suppliers that require them to meet their obligation. The buyout mechanism is in place to provide a safety valve that protects both industry and the consumer from spikes in the cost of supplying biofuel. Presently, industry also reports the performance of its biofuels against voluntary sustainability criteria. However, if we pass this order, the UK will reward only sustainable biofuel. This is the key issue today.

This amendment will introduce the mandatory sustainability criteria set out in the RED. This means that for the first time there will be a legal obligation on industry to supply biofuels that demonstrably reduce carbon emissions and can be shown to have been produced from feedstocks whose cultivation did not threaten areas of high biodiversity or damage carbon stocks. Suppliers must therefore be able to prove that their claims of sustainability are true. These sustainability data must be verified to the internationally recognised limited assurance standard by an independent third party before participants in the scheme receive the renewable transport fuel certificates that are used to demonstrate that their obligation to supply sustainable biofuel has been met. If companies continue to supply biofuels that do not meet these environmental standards, those biofuels will count as fossil fuels for the purposes of the RTFO and as such will serve to increase the supplier’s obligation to supply sustainable biofuel accordingly.

Another important driver behind this amendment is to further encourage biofuels made from the most sustainable feedstocks. Fuel made from wastes and residues will be eligible for double counting, receiving twice as many certificates by volume as biofuels made from other sustainable feedstocks. This double counting would also apply to biofuels made from lignocellulosic material and non-food cellulosic material; that is, woody matter as well as stalks and the like left over from agricultural crops.

We remain concerned that there are significant indirect impacts from some biofuels that are not currently addressed by the renewable energy directive. Earlier this year the UK published research on the scale of these impacts and we have written to the European Commission reiterating our belief that this is a pressing issue that must be addressed robustly at a Europe-wide level. As the directive currently stands, it does not take into account these indirect effects. While the extent of these impacts remains uncertain, there is robust evidence that widespread use of some biofuels can lead to significant indirect greenhouse gas emissions through the process known as indirect land use change, or ILUC.

The Government take the issue of ILUC seriously. Earlier this year the Department for Transport published research on the scale of indirect land use change impacts and we are continuing to lead work on how to tackle these, as well as encouraging the European Commission to address this issue on a Europe-wide scale with a robust solution. My honourable friend Norman Baker, the Parliamentary Under-Secretary of State for Transport, has written to the European Commission twice, expressing the Government’s concerns regarding ILUC and pressing for robust and proportionate action to be taken to address the associated impacts.

We have also been consulting on guidance that will help suppliers and others with an interest in this industry to understand better how we take technical decisions in accordance with the order and how they are expected to comply with this legislation. This RTFO guidance will update existing guidance on process, carbon and sustainability reporting, verification and process-related issues for fuel suppliers.

I will now briefly summarise other key changes that would be delivered through this order. It would require suppliers to provide additional sustainability information. It would extend the RTFO so that biofuel suppliers, as well as those supplying fossil fuel for road transport, are obliged to register with the RTFO administrator and report on their biofuels. Small suppliers will still be outside the scope of the obligation in the light of the minimum supply threshold of 450,000 litres per annum, which will continue to apply. It would expand the RTFO so that all liquid and gaseous renewable fuels of biological origin that are for use in road vehicles are eligible for RTFCs.

This approach would enable more renewable fuels such as biomethanol, and partially renewable fuels, to be eligible for reward under the RTFO.

In order to allow maximum flexibility for industry while ensuring that the sustainability criteria are met, we are allowing suppliers to carry over RTFCs from one obligation period into the next, where the fuels associated with these certificates would have met the minimum greenhouse gas requirements in both periods.

This order will remove the duty on the RTFO administrator to report annually to Parliament. This is because the administration of the scheme is now carried out by a central government department rather than by a non-departmental public body, as had previously been the case. It is therefore subject to the usual ministerial oversight of departmental business, rendering additional reporting unnecessary. We are also proposing to amend the suite of civil penalties available to ensure compliance in order to reflect the changes made to other aspects of the order.

The changes before the Committee today are intended to ensure that biofuels used on Britain’s roads deliver real carbon savings and can demonstrate their sustainability. Through double counting, they will also encourage industry to seek out ways of delivering the most sustainable fuels. I therefore commend the order to the Committee. I beg to move.

[Lord Teverson]

I am happy to start, my Lords, as this is a very important area. I will start what I am about to say by showing how important it is. If you are a believer that global warming is one of the greatest challenges to this planet and to mankind, then this order is of particular importance. We often forget that transport accounts for 35 per cent of energy usage within the United Kingdom, so in order to meet our renewable energy targets of 15 per cent in 2020, and our decarbonisation targets of 80 per cent for the economy as a whole up to 2050, we obviously have to succeed in this area. If we do not, then we stand no chance of meeting our other targets. We know, however, that this has been one of the most contentious areas.

Sometimes those of us who get involved in debates about wind farms and nuclear energy think that it is one of the areas where there is most division and angst among Members of the House and the public at large. However, this is one of the areas where we are asking what is and what is not a sustainable biofuel, and whether biofuels are good or bad. As we go on, that division—which seems to have got wider—is of great importance.

We therefore have to make sure that we solve issues in this area. The renewable energy directive requires that we reach 10 per cent by 2020, and on this scale we get to 5 per cent by volume—but that is of course only 3.5 per cent by energy content in terms of that target.

I looked at one of the reports of the Committee on Climate Change. It is useful to remind ourselves as background that in terms of decarbonising this sector, as the Minister said, renewable liquid fuels are pretty well the only option in the short term. What are the alternatives? I note that the Committee on Climate Change is looking for 1.7 million electric or hybrid vehicles by 2020, which will be 16 per cent of all purchases of vehicles by that time. Frankly, we will be very lucky if we get anywhere near that figure, and we are not on the trajectory to achieving the target of having almost completely electric vehicles by 2030.

The other alternatives are hydrogen fuel, which seems to be a long way off, or second-generation biofuels. Since I have been involved in this debate, second-generation biofuels—let alone third-generation ones—have been talked about as if they are around the corner, and yet those debates have been going on for three or maybe five years, and they are still not here. What research and development and real impetus—by Europe, through the framework initiatives, and through our own government-sponsored research— is being put into these second-generation biofuels? Until we move on to those, I do not think that this issue is overly solvable.

15:45

That is the background, and we need to talk about the practice of this order. Clearly I agree with the Government’s sustainability criteria—that is key. However, I would like more detail about who these independent assessors might be and whether any bodies have volunteered yet? I presume that this is all ready to go because we have to implement this secondary legislation. I would like to understand how that works. How confident are we that that traceability can work? How do we define whether the land that is being used is the right type of land? That seems a very difficult call; I believe that sugar cane in Brazil can give us environmentally positive biofuels in the right places, but I still need to understand how we assess that in practical terms. This is all about the practice.

I would love an assurance from the Minister that not one litre of biofuel that has been produced from corn oil in the United States will enter the United Kingdom; it has been through the various subsidy regimes in the United States. Corn products produced and consumed world wide have had a disastrous effect on the environment and global food prices, particularly in underdeveloped countries.

I am very pleased that the Government have taken account of waste products such as used cooking oil and given it double points as a reward. However, in the interests of keeping the industry sustainable, and given the current 20p a litre subsidy—which cannot be there for ever; indeed, it should not be—I should like to see a transition programme. Technically, the subsidy period ends in four months’ time, but I would like the Minister’s assurance that we can have a transition period for at least one or two years while this new regime comes in so that we do not put that industry and investment in the dustbin at a time when we really need a renewable fuels industry.

This may be a piece of secondary legislation, but it is of the utmost importance. It is very difficult to see how we will meet our targets in this area; I welcome the fact that we have this order before us, but we have real challenges.

[Lord Palmer]

My Lords, I thank the noble Earl very much for his, dare I say, easy-to-understand introduction of this order. This subject is becoming more and more complicated, and when the original band of four—the late Lord Carter, the noble Lord, Lord Ezra, the noble Lord, Lord MacGregor, and myself—persuaded the Government to accept the original RTFO, little did we think that the waters would become so muddied, and the UK biodiesel industry would be in such limbo.

This is such a complex subject, covering three different government departments and, of course, not to be forgotten, the Treasury. The noble Lord, Lord Teverson, made the point about used cooking oil, so I shall not repeat that by saying what I intended to say. But it must not be forgotten that investment in manufacturing for UK biofuels has been well over £500 million in the past five years. I declare an interest as a grower of industrial oilseed rape, albeit that my wife is a fossil-fuel explorator.

Investors are ready and waiting to invest a further £200 million at least in the next year, and more thereafter, if they can get clarity on the pathway to reach the renewable energy directive target of 10 per cent by 2020. This is private sector money, and the industry does not, and will not, rely on government subsidies. It must not be forgotten that UK biofuels are among the most sustainable in the world and provide a vast array of jobs for United Kingdom citizens, most especially in the deprived area of the north-east of England.

The lack of clarity in policy—in particular, a dead stop in the UK’s renewable transport targets at 5 per cent by April 2014—is sending a negative signal to investors and I strongly believe that we must get a commitment beyond 2014. We know that we can supply up to 80 per cent of the 10 per cent target and it is incredibly important that these are all from home-made biofuels that are sustainable. I hope the noble Earl will take this on board. If we turn investors away, we will condemn the UK road transport sector to be the greatest carbon emitter in the country for the next 20 years. Is this really what we want? I urge the Government most strongly to confirm the 10 per cent target and the pathway to reach it before investors disappear completely and the RTFO is in utter shreds.

[Baroness Worthington]

My Lords, it is a great pleasure to speak on this subject. I also want to make a general comment about how this order was introduced. I worked for Friends of the Earth when the original Bill was being promoted in the House of Lords, and the reason that Friends of the Earth supported this Bill then was because we could see that the overriding priority was climate change and that we needed to seek renewable energy use in all forms of energy, not just electricity but heat and transport. So this was an important part of a suite of measures to address climate change.

In general, the order put forward today is very welcome. It is necessary to have sustainability criteria. I echo the noble Lord’s comments that when we started out on this track no one could anticipate the degree of complexity that would come from this order, but measures are being taken to address problems as they arise. One way to address problems more easily could be by focusing more on indigenous use, growth and production of renewable fuels in the UK, where we can control the sustainability far more clearly. I would like to see more from the Government about how we can promote UK-grown biofuels.

The great weakness in the order at the moment is, as has been mentioned, the cliff face where we have no trajectory beyond 2014. It was interesting to note that the noble Earl seemed to be presenting it as something to be proud of that we have not committed to a trajectory. That is questionable and really damages investor confidence. The obligation is phrased as a percentage of overall fossil fuels sold. This means that not only do we have no growth in the percentage but we could have a declining volume of fuels being provided from this order because vehicles are getting more efficient and we are seeing a reduction in overall fuel use in this sector, especially as we move towards electrification of vehicles.

The Government’s own modelling should show declining use of fossil fuels, which therefore means that the percentage in this order is also declining. We are not even standing still. This is a really serious issue and I would like the noble Earl to address this when he responds. All the reasons given for not committing to a trajectory are to do with the volume of fuels expected because of concerns about sustainability impacts. However, because it is a percentage, you could have the same volume but just growing in percentage terms. That does not really work and we need to see more clarity on why there is no trajectory and the damaging effect that this has on the investment community and UK business. I really want to see something from the Government to put these fears to rest at a time when we should be seeking to encourage all investment into renewable and sustainable forms of energy.

[Viscount Eccles]

My Lords, this is a very difficult subject, as the noble Lord, Lord Palmer, said. It is of interest that the department has not produced its statistics up to April 2011—although we are in December. I also have a perception that the department has come to this instrument with a certain amount of reluctance—I do not think it likes it very much. The reason why it does not like it is absolutely understandable. The information upon which the order is based is very sketchy indeed. I used to be on the Merits Committee, and I probably spoke on another order on this subject some time ago. When I was on the Merits Committee I do not remember there being five impact assessments—all done during the summer holidays, I notice. That must be close to a record.

Before getting on to the instrument itself I wanted to make two points. The first one is about a holistic approach. It does not make sense, in the context of climate change, to talk only about fuel, and not about fuel consumption or about emission control coming out of modern cars. There needs to be a much more rounded approach. The European instruments which have been put into place, no doubt agreed by ourselves in a Council of Ministers, are not at all fit for purpose. In fact, I am pretty sure that they are completely unfit for purpose. There needs to be a much more radical look at how we look at the whole picture.

My second point follows up what the noble Lord, Lord Palmer, said about UK production. I think I am right in saying that at the moment, of the biofuels that we use in this country, 90 per cent is imported and only 10 per cent is produced in the United Kingdom. Those are the Department for Transport’s own statistics. The great majority of that is produced from tallow and waste cooking oil. On Teesside—I come from the north-east and reject the description of it being “deprived”, which is not right—there is a quarter of a million tonne plant—

[Lord Palmer]

I am sorry; I did not mean that in any derogatory way. I know that unemployment in the north-east is a good deal higher than in other parts of the country, which is why I was urging for more investment in the north-east. I hope the noble Viscount does not take my comments in any derogatory way, because they were not intended as such.

[Viscount Eccles]

I thank the noble Lord for that, but there are some people in the north-east who are very good at making the most of the difficulties that we have in the economy. It does not do us any good to overplay our hand.

There is a very large plant, which I know. It was engineered in large part by somebody with whom I used to work, and it is extremely well engineered. The company that was going to operate it went out of business. It is now owned, and, to a certain extent—I do not know quite how much—operated by Harvest, which is one of the suppliers of biofuels. It was designed to process rapeseed oil. My information is that it is not processing any rapeseed at all. I really question the whole future of the United Kingdom’s own production from the standard feedstock in temperate climates, which is rapeseed. I do not know what the position is.

It is notable that in the instrument and the impact assessments there is hardly a mention of rapeseed, and no references are made to United Kingdom production from rapeseed. Of course, rapeseed is a food; you can buy rapeseed oil in any supermarket, and it is very good for cooking. However, so is soya bean. The three principle feedstocks for biofuels—two for diesel—are soya bean, palm oil, and of course, rapeseed.

The soya bean is responsible for 50 per cent of the world’s supplies of vegetable oil. How will you determine whether a particular lot of soya comes from a sustainable source? I should declare a past interest: an organisation I was involved with used to grow soya beans in Zambia. We grew about 40 per cent of Zambia’s vegetable oil supplies in that area of the country—it was a very big operation. I have also been a palm oil grower. As for bioethanol, I have also been a sugar cane grower. I could volunteer to be a verifier; I would know what I was looking at. I have seen all sorts of land transferred, for example, from growing coconut trees to oil palms—but what was the land before coconuts were grown on it? My goodness, it was forest until somebody thought, “We need some food”. So they cleared the land and grew coconuts. Then the coconut industry became unremunerative and the coconut trees were replaced by oil palms.

16:00

The story is the same for palm oil. Nobody will be able to be sure that they are getting their palm oil from a sustainable place. There is absolutely no way they can be sure because certificates do not come with soya beans stating that they come from a particular field in Brazil that has just been cleared of either primary or secondary forest. The soya bean industry is enormous. Of course the growers will say that the beans come from a place where soya beans have been grown for the past 20 years.

On biodiesel, are we going to adhere to the sustainability criteria for rapeseed grown in the United Kingdom, or apply them just to overseas countries? Is this a DfID and Foreign Office matter, or does Defra come into it somewhere? There are issues around the extension of arable land in United Kingdom. There were big issues at the beginning of the Second World War. All sorts of secondary land was ploughed up that would have been better left—but we needed the food production.

On the question of ethanol, sugar cane and sugar beet are the principal sources of the bioethanol that comes here from Brazil, for example. We do not import much corn-made ethanol from the United States, but some corn-oil ethanol is imported from the United States. Sugar is a food. What about food supplies? Nothing in the European system deals with the threat to food supplies, which it is said will be quite serious by 2050. I make this point about the principal agricultural feedstocks. It is neither possible nor equitable to insist that fuel companies are accurate in their information and should otherwise pay penalties of up to £50,000 or 10 per cent of their turnover if they are not accurate. Since the department is not at all confident about its own accuracy—as it states clearly in the impact assessment—why should anybody else have their feet held to this fire? Secondly, all the principal agricultural feedstocks for biofuels are also food crops. That must be taken into careful consideration. Therefore, the European system is faulty. It is not fit for purpose and should be rethought and rewritten.

On the question of mandatory sustainability criteria, the papers in front of us state that we do not have them yet. Although we are bringing in this instrument because we might worry about infraction if we did not, we are still working on what the mandatory guidelines should be and we are not at all sure when we will have them worked out. It would be best if this instrument were taken away and thought through again. We should have serious discussions with the Commission and come to a different position in six months’ or a year's time. It is no surprise that we are looking at 3.5 per cent of fuel coming from bioenergy; we are miles away from 10 per cent and nobody wants to get there.

[Lord Berkeley]

My Lords, I support the Government’s intention behind the order. However, the fact that it is 20 pages long and that a number of noble Lords have made some pretty wide-ranging comments about its effectiveness indicates just how difficult the system is. Clearly the Government’s heart is in the right place but I think there is a bumpy road ahead, and maybe not just on these regulations.

In transport, we all know that the intention, and the policy, is to reduce CO₂ emissions by 80 per cent in 40 years’ time, by 2050. We are a long way from that, as many noble Lords have said. It is very easy to say, “We should do this and we should not do that”, and come up with a black-and-white approach. We need to have a more rounded approach and do everything possible because otherwise there is no chance at all of meeting those targets.

I worry about whether there is any joined-up government going on here. I read last week that the UK was the only EU member state to oppose the Commission’s plan to put a premium on CO₂ emissions from the oil sands that are produced in Canada because of the additional CO₂ produced as a result of that process. If we are trying to balance what is produced and how it is produced with the CO₂ that comes from it, surely the Commission’s plans are very fair and reasonable. We can argue about the percentage but it appears to have a pretty disastrous effect on the environment there and if it is going to produce a great deal more CO₂ as well, that should be reflected. I know that that is some way away from these regulations, but it is an example of how one can get tripped up by a policy, possibly without realising it.

The noble Lord, Lord Palmer, talked about some of the other issues to do with the change in policy. We have seen a change in policy recently on solar panels and the grants available for those. Again, it is probably fair and reasonable given the reduction in the prices that the panels are sold for, but it does not help industry invest in the right equipment for reasonable long-term production of whatever we are trying to produce. Again, several noble Lords have mentioned this in respect of the various feedstocks that we are considering today.

I recently came across a plan in Cornwall, where I live, to export domestic waste in 1 metre cubed blocks to Sweden for incineration and creation of electricity. At the same time, there is a plan to build an incinerator in Cornwall. Whether it goes ahead or not does not really matter, but why export it to Sweden when it can be burnt locally? Apparently it is a different type of waste, but if we are going to have to have different types of processing plants for all the things listed in these regulations, and if Government, for whatever reason, are going to change their policies on subsidies or feed-in prices or whatever, it is going to be quite difficult to get companies to invest in it. I question why we want to encourage the burning of sustainable waste from fisheries. There are enough problems with overfishing at the moment and we should not encourage anybody to fish more than they need to and say, “We will make some money out of burning it”.

I fear there are going to be a lot of unintended consequences out of this order and other ones. I do not have a solution. We can try to burn less fuel by using electricity for those vehicles that can be powered electrically, if that is generated in a carbon-free manner. That cannot be done so easily for big trucks. My solution, as chairman of the Rail Freight Group, is to send much more long-distance stuff by rail. However, that is not the only answer. We must try all these different solutions. I plead with the Minister to try to end up with a policy that is as consistent across all the different modes of transport as possible and that will give the businesses that will do this work as much confidence as possible that their investment will get the rate of return that they were promised by government policy when they started down the road.

[Lord Reay]

My Lords, the two great drivers—to use modern administrative jargon, as the Minister did—of our ruinously expensive renewable energy policy, which is still subscribed to by the leadership of both the Government and the Opposition in this country, are the Climate Change Act 2008—which, it was estimated by the Government of the time, will cost more than £400 billion by 2050—and the EU renewable energy directive of 2009. The Climate Change Act deals with emission reductions; the renewable energy directive provides for increasing proportions of used energy to come from renewable sources. Of course, renewable excludes nuclear.

As was explained, under the directive the United Kingdom has a target of 15 per cent of its total energy and 10 per cent of its transport fuel to come from renewable sources by 2020. The renewable transport fuel obligation has been in place since 2008, and under it an increasing proportion of road transport fuel must take the form of biofuel. According to figures provided by the Department for Transport to the Merits Committee, this has now reached 3.1 per cent. This order amends the RTFO to bring into effect various requirements of the directive that were described by the Minister.

In the various impact assessments provided with the amendment order, there is no assessment of the costs hitherto of the obligation. I find this to be a sorry omission and would be grateful if the Minister will in due course supply the figure. As the Explanatory Memorandum makes plain, supplying biofuels is more expensive than supplying fossil fuels. As to the expected costs of the amendment order over and above the costs of the order unamended, the Explanatory Memorandum offers an estimate of £324 million for the years 2012 to 2030. However, the overarching impact assessment states that the figure falls in the range of £100 million to £800 million. In other words, the Government have very little idea of what the cost will be.

The amendment order will be popular with no one except the Greens. The Government state that of the 4,600 replies to the consultation from members of the public, the majority called for the biofuel targets to be scrapped. This is not surprising as the effect is to add to the cost to the motorist. Given that the Government have just felt the need to postpone an increase due in January on fuel duty amounting to an extra 2p a litre, they will not make their life any easier by increasing in this way the price of fuel. In the sustainability criteria impact assessment, it is assumed that the additional cost to the motorist will peak at 0.4p per litre in 2017 for diesel and 0.1p per litre for petrol. The assessment goes on to state that any further costs will be capped by the buyout price. However, this is set at 30p per litre. I wonder whether that is really the price at which the cost to the motorist will be capped. Perhaps I do not understand this and the Minister will explain how a buyout price set at that level will effectively cap the price to the motorist.

16:15

One of the costs of this policy, therefore, is the greater expense of biofuel compared with fossil fuel, which is paid by the motorist. The other great cost results from the new competition that is artificially introduced for the use of arable land, which is paid for by food consumers world wide, with the poor obviously suffering most. It is now well established that the subsidy of biofuels pushes up food prices.

Under the directive and this order, biofuels will need to be verified as passing certain sustainability criteria. They must not be sourced from high biodiversity areas, which in practice I take to be land largely under afforestation, or areas of high carbon stock, which I take to mean largely peatland. There is no mention in the order of preserving farmland or high-quality farmland for food production. However, it is our intention, by introducing the double credit for waste-produced biofuel, to relieve some of the demand for crop-based fuel. The impact assessment states:

“Increasing the share of waste-derived biofuels in the UK biofuel mix decreases the risk of biofuels contributing to increases in food prices …However, there is as yet no clear consensus on how to quantify and value any potential links between biofuel demand and food prices. Therefore any such possible impacts have been excluded from the analysis”.

So here again we have only the vaguest idea about the cost of this order and of the RFTO.

Have the Government any knowledge of the proportion of biofuel used hitherto or used today which has been derived from crops? If they have made such an assessment, or are aware of any assessment that has been made, that would give an indication of the acreage that has been given to these crops. Secondly, have the Government received any complaints about the efficiency of fuel containing mandatory biofuel?

In conclusion, the renewable energy directive and the Climate Change Act are both used to buttress the international posture of this country and the rest of the European Union, while we forlornly seek to persuade other countries to follow us down the road of deindustrialising our economies. None is shaping up to do so. No country of significance seems to wish to adopt legally binding emission reduction targets: not the United States, China, India, Canada, Japan or Russia. They all have more sense and prefer economic growth. The loudest noise coming from the direction of Durban is likely to be made by the voices of developing countries as they call for more funds from the developed world to enable them to meet the targets we asked them to adopt—which is a diminishing prospect today.

Nevertheless, we and the rest of the European Union stand quixotically alone, insanely trying and thankfully failing to lead the world in the practice of economic suicide. Eventually this policy will collapse around our heads—and the sooner the better.

[Lord Bradshaw]

I will concentrate my remarks on the used cooking oil industry, which gets a rather raw deal from the Government under these proposals. We have to remember that the business is sustainable, which even my noble friend Lord Reay would admit. Basically, it uses waste products from the cooking industry to make biodiesel. It is a new business—it only really began in about 2007—so is not an industry with any great roots. It is made up mostly of SMEs—small and medium-sized enterprises—and is not dominated by big corporations. There is a real threat that the growth of the industry will be not only stopped but reversed by the passage of this legislation.

Used cooking oil is actually very green compared with fossil fuels—and with many grown crops, particularly if we are not certain of their source. One of the biggest problems in judging whether a crop has been grown in a sustainable way is that the certificates of origin provided by many suppliers are highly suspect. I ask noble Lords to reflect on the last time they bought a piece of teak garden furniture with a label on it saying, “Sourced from sustainable forests”. I would say, “How do you know what went on in Indonesia?”—and I am sure that the suppliers do not, either.

We are talking about recycling a waste product, and the industry works on very tight margins. It is not an industry that has any room for manoeuvre. The Minister replied to a Written Question of mine about the price of a road transport fuel obligation certificate. I believe that the prices he quoted in his Answer were from a few big dealers, whereas most of the trading takes place between small industries, which we do not know anything about. However, the figures that he quoted, which indicated a doubling of the price of certificates, should be contrasted with the fact that on some occasions the certificates are worth nothing. Twice nothing is nothing, so doubling the price has not had a great effect.

This is a retrograde piece of legislation in respect of the treatment of the used cooking oil industry. I say to my noble friend that we are going to risk more unemployment and less expansion of the industry, which has the capability of expanding because there is still plenty of used cooking oil to collect and refine. I have one last question for him and I would be very interested to hear his answer. In view of the withdrawal of the tax differential and the uncertainty over the value of the tradable certificates, would he put his own money into this industry?

[Lord Grantchester]

I recognise the importance of this order for transport and meeting our climate change obligations. Its sustainability provisions are entirely to be welcomed. However, the lengthening of the timescale from 2011 to 2014 is a further example of the Government dissipating the momentum of the last Labour Government. This is impacting further on the confidence of the investor market, as has been identified across the renewable industry in its relationship with this Government.

I have one specific query. I understand that elements of the sustainability criteria are currently being consulted on. The consultation is set to end on 15 December, the date the order becomes operable. I understand that the UK Petroleum Industry Association has lobbied on the penalty of 30p a litre for non-compliance, stating that there is not sufficient time for its supply chains to meet the standards. The association asks that any fines should not apply before 1 April 2012, to allow supply chain purchases and contracts to catch up with the certification process for the biofuel products. The UKPIA states that it does not know whether biofuel products already contracted will meet the certification process and standards. This seems an understandable request. Can the Minister clarify his department’s position?

[Lord Davies of Oldham]

My Lords, this has been a fascinating debate. The Minister has quite enough on his plate in terms of issues to tackle without me adding a great deal to his burden. I have some sympathy for him; he is well aware of the fact that the Merits Committee of the House expressed some criticism of the amendment order. Clearly there is also, among those in the affected industries who are directly interested in the issues, a belief that a considerable amount of backsliding by the Government is going on. This is a pretty modest measure against the background of the Chancellor's denial of environmental issues last week, and the clear indication that the Government are going to soft-pedal on planning issues, reduce subsidies to the solar panel industry and offer subsidies to some of the most polluting industries. The measure must be seen in that context. Therefore, I will give an element of reassurance to the Minister; we on this side support the measure, inadequate though it is. We hope that it will be the basis on which in due course something more constructive can be developed.

The Minister must know about the concerns of the industry. The issues raised by the order around verification and reporting are complex, and there is a danger that if people get it wrong and biofuels prove not to conform to the requirements, the industry will get into further trouble. However, we should look at how little notice the industry has from the period of consultation to the implementation of the order, which is only a week and a half from being part of the requirements.

The industry also indicated that there are areas to which it seems no consideration at all has been given. For example, the development of hydrogen fuel with regard to motor transport is not considered in relation to the order. From what we can see, the Minister's general perspective is that the Government will keep the issues under review. That is a long way off definitive policy, which is what the order is meant to represent. The industry deserves better from the Government. As the noble Lord, Lord Bradshaw, indicated with regard to the production of biodiesel, it is important that people know the parameters within which they will work. How can we expect them to invest, particularly in these very difficult times, against a very uncertain perspective?

I heard what the noble Lord, Lord Reay, said and I hope that the Minister will give some response. When 97 per cent of the world's scientists who are interested in this area regard climate change as moving apace and as a threat to the world, the concept of deindustrialisation may be emotive but we certainly have to change. Without change, we will face a catastrophic future.

[Lord Teverson]

Does the noble Lord agree that there is a big difference between decarbonisation and deindustrialisation? Probably the greatest deindustrialisation in this country was in the 1980s. Since then, industry has probably improved and got better.

[Lord Davies of Oldham]

My Lords, I could not put it better myself—in fact, I did not put it better myself and I am grateful to the noble Lord, Lord Teverson, for pointing that out to the Committee. The Minister must recognise that investor confidence in the industry is low. One plant has effectively has been mothballed—this represents almost one-third of the industry—and we surely need to give some stimulus if we are to hit the targets set for 2020. Of course, the Minister will appreciate just where the industry is at present: about 250,000 tonnes of bioethanol and 330,000 tonnes of biodiesel are being produced. Yet we need several millions of tonnes in order to hit the target, which is only eight years away.

I have come along, as I always do, with words of comfort for the Minister: we support this measure. However, we regard it as inadequate and we want indications from the Government that the inadequacies will be repaired.

16:30

[Earl Attlee]

My Lords, this has been a useful discussion on a subject that generates a wide variety of views. I will try to address some of the key points that have been raised. The number of noble Lords addressing the Committee clearly shows the importance of this order.

The noble Lord, Lord Teverson, asked me if I would agree that not one litre of biofuel should come from the United States. He tempted me but I remind the noble Lord that of course we have the 35 per cent reduction in greenhouse gas emissions test. Although I cannot meet his aspiration, the effect of the order will be very beneficial. The noble Lord, Lord Bradshaw, teased me about whether I would invest my own money in a biofuel plant. The Committee will know that I am a classic impoverished earl and I have no money. However, I am convinced that the order, as amended, will provide a good commercial and environmental incentive.

It is recognised that greater assurance of the sustainability of biofuels will help to address some of the uncertainties in this policy area. This improved auditing will simultaneously address a number of concerns about the potentially negative impact of some biofuels, while providing industry and investors with increased reassurance that the instruments to incentivise sustainable biofuels will be in place for the foreseeable future, providing the certainty needed to plan ahead. In response to the noble Lord, Lord Davies of Oldham, we are building on the work of the previous Administration, as I am sure he would accept.

Double rewards for biofuels from wastes and advanced biofuels will replace the 20p duty differential for used cooking oil, or UCO, which will expire at the end of March next year. This will mean that industry has an incentive to explore ways of delivering any of the fuels with the very best sustainability credentials, rather than incentivising it to focus on a single feedstock. This amendment will allow us to meet our EU obligations in this area and is needed to set in law the sustainability criteria required by the renewable energy directive. As an EU obligation, the same criteria will apply in all other European member states.

We recognise that the issue of ILUC is not currently addressed by the RED and are working both within Government and at a European level to ensure that proportionate and robust action is taken to address this. However, I remind noble Lords that this amendment is a continuation of our current trajectory towards increasingly sustainable biofuels. That trajectory was set out following the Gallagher review of biofuels in 2008, which highlighted the potential impact of ILUC and recommended that the rate of increase of the targeted volume of biofuels in place at the time should be reduced. It said that higher targets should only be implemented beyond 2014 if biofuels are shown to be demonstrably sustainable, including avoiding indirect land use change.

I have a number of points to cover in answer to noble Lords. Some touched on fuels other than biofuels; for example, hydrogen and the use of electricity. The Committee will forgive me if I just cover biofuels. A recurring question from many noble Lords was how industry will prove its fuels meet the new criteria. The answer is that independent verifiers will check the claims made by suppliers that recognised voluntary schemes that certify fuels as RED-compliant are in place. Suppliers will need to have the information that they supply to the scheme's administrator independently verified to the internationally recognised standard known as limited assurance. It is expected that many will provide evidence through certification from one of a number of voluntary schemes set up by private organisations and recognised by the European Commission. Verification has taken place since the RTFO was launched in 2008. The schemes involve companies such as Ernst & Young and PricewaterhouseCoopers.

[Viscount Eccles]

Does my noble friend have any information about the cost of verification? It must be enormous if it is being done properly.

[Earl Attlee]

My Lords, I would not imagine that it impacts greatly on pump prices. I will see if inspiration comes to me in due course. However, the cost is in the impact assessment.

The noble Lord, Lord Palmer, asked how we could support UK production. The RTFO seeks to increase biofuel use. We want sustainable biofuels. The RTFO allows sustainable biofuels to count. We cannot exclude biofuels because they come from outside the UK. If we did, we would face competition issues from the WTO and no doubt from the European Commission as well. Also, such anti-competitive behaviour would be against the interests of UK consumers. The key is sustainable feedstock.

[Lord Berkeley]

If we have one of the “big four” accounting firms doing the verification and the material is coming from South America or the Far East, will they go there to check it or will they rely on local certification?

[Earl Attlee]

My Lords, it is up to the supplier to convince the authorities that their fuel is sustainable.

Many noble Lords asked about advanced biofuels. A number of commercial activities are developing advanced biofuels. BP is involved in a joint venture to develop biobutanol. Double counting of waste-derived biofuels and advanced biofuels will increase the financial incentive to invest in advanced biofuels.

My noble friend Lord Eccles asked number of questions. Many of them are key to the debate, so I will go through them and I hope that the answers will cover many other noble Lords’ concerns. He asked about UK production. The UK is currently the largest single supplier to our market. Volumes from the UK have increased over the years. The market share is currently around 23 per cent. The detail is on the department’s website. The noble Viscount asked whether our 10 per cent was not all tallow, et cetera. Tallow and used cooking oil account for a significant proportion of UK feedstocks. Some fuel comes from agricultural feedstocks. Again, the detail is on the website. He asked what happens to our oilseed rape production. We do not have the figures to hand. The statistical data are on our website.

[Viscount Eccles]

How will my noble friend deal with the fact that the website is madly out of date?

[Earl Attlee]

My Lords, I will have to write to the noble Viscount on that point. I confess to my shame that I have not personally studied the website.

The noble Viscount suggested that sustainability was immeasurable. Some sustainability is relatively easy to track. That is what we are mandating today. The issue of ILUC is unresolved and we are pushing to have it addressed.

[Viscount Eccles]

Perhaps I might have one more go. One of the problems is primary forest. That is forest or other wooded land of native species where at any point in time, in or after January 2008, there has been no clearly visible indication of human activity, and where the ecological processes have not been significantly disturbed. Is my noble friend suggesting that there is anywhere, in any forest, where nobody has ever been?

[Earl Attlee]

My Lords, the noble Viscount is asking me searching questions of great detail, and I will have to write to him.

I am just going through the questions asked by the noble Viscount. He says that we do not know where 16 per cent comes from. These are the latest published statistics for April 2010 to April 2011. He asked how we can trace biofuels and ensure that they are sustainable. Currently the RTFO has voluntary reporting in place. This reporting has enabled many suppliers to demonstrate that they can trace the production of biofuels, and that they are sustainable. This verification work has been taking place since the RTFO was introduced in 2008. It is carried out by independent, reputable companies, as I have previously mentioned.

The noble Viscount, Lord Eccles, and the noble Lord, Lord Reay, asked why the Government are supporting biofuels when doing so can push food prices up. The analysis by Her Majesty’s Government concludes that biofuels were not a particularly significant driver of the 2008 food price spike, with other factors such as the price of oil and adverse weather conditions being greater contributors. However, some biofuels will put upward pressure on prices for those agricultural commodities used in biofuel production.

My noble friend Viscount Eccles also asked what the Government are doing now to ensure that the promotion of biofuels does not result in land grabs in developing countries. The Government agree that biofuel production must be socially and environmentally sustainable and should not adversely impact on food prices and availability or on local people’s access to land and other natural resources in developing countries. The scale and complexity of this issue mean that it is most effectively addressed at the EU level. He also asked about the impact of biofuels on food availability. Under the RED, the European Commission must monitor and report every two years on the impact of biofuel policy and the increased demand for biofuel on social sustainability. This will include reporting on the availability of foodstuffs at affordable prices, particularly for people living in developing countries.

Many noble Lords have asked why there is no target after 2014. We need to await the conclusions of a number of pieces of work before we can set biofuel targets beyond 2014. The research we are waiting for is the report of the Committee on Climate Change on renewable energy, and the Government’s bioenergy review. We expect to consult on targets for 2014 to 2020 next year. There have been shifts in biofuel policy in the past. We need to ensure that policy decisions going forward are robust and stable. This is an important point for industry, as many noble Lords have pointed out during our debate.

[Baroness Worthington]

My Lords, the point I was trying to make was that this is a percentage-based target that actually translates into volumes of litres of product. The modelling for the total volume of litres of petrol to be sold suggests that that there could be a declining volume of renewable fuels. I want the Government to acknowledge that we might not be maintaining the volumes of sales but might actually be decreasing them if we stay as we are. The important factor is that if you write a target as a percentage, you have got to think about the litres of product to enable the industry to plan. Perhaps I could have an answer on that.

[Earl Attlee]

My Lords, I confess that I do not fully understand the point made by the noble Baroness, but I will undertake to discuss it with my honourable friend Mr Norman Baker, the Parliamentary Under-Secretary of State for Transport.

Many noble Lords are concerned about ethanol from the United States, and what support exists for British ethanol producers. UK farmers and biofuel producers have historically been able to demonstrate strong sustainability performance for their products, which should put them in good stead once the mandatory sustainability criteria of the RED come into effect. This should help their competitiveness. Ethanol producers in the UK have also had concerns that US imports are exploiting a tariff loophole. A European Commission draft regulation addressing the loophole was considered and agreed by the EU Customs Code Committee on 12 October, and should be published soon. The mandatory sustainability criteria will allow only sustainable biofuels to be financially rewarded in the UK.

The noble Lord, Lord Berkeley, asked about oil sands. The fuel quality directive seeks to reduce the life cycle of greenhouse gas emissions of fuels used in land-based transport. We want a methodology that is able to account for the greenhouse gas emissions of all crudes, including oil sands and oil shale, and which is based on robust and objective criteria. The evidence is that fuel derived from oil sands has a high intensity of greenhouse gas emissions. However, the same is true of a number of other crude sources, such as Nigerian and Angolan crude, with their associated flaring, and Venezuelan heavy crude oil.

16:45

My noble friend Lord Reay asked about fuel costs and whether we had considered the impact of the changes on fuel prices. A suite of impact assessments accompanies the two government responses to the consultation. These assess the likely costs and benefits of our proposals to the fuel industry and to fuel prices. The introduction of sustainability criteria is expected to result in some short-term upward pressure on biofuel prices as the necessary investments are made in supply chains and refineries. These price increases are expected to feed into final petrol and diesel pump prices. The overall impact is expected to be fairly small, peaking at 0.1p per litre for petrol and 0.4p per litre for diesel in 2017. Prices are then expected to fall gradually as market supply adapts to the requirements of sustainability criteria and as suppliers recoup money invested.

The noble Lord, Lord Bradshaw, asked why we have removed the duty incentive in respect of cooking oil. A duty incentive offers no mechanism for addressing concerns about the sustainability and sourcing of the biofuel supplier. Because it rewards both sustainable and unsustainable biofuels equally, it does not give sufficient long-term certainty for potential investors in biofuel production or an infrastructure that helps support a market for more sustainable biofuels. That is why the Government have committed to remove the duty differentials on biofuels.

[Lord Bradshaw]

I believed that the 20p incentive was paid to the people who refine used cooking oil. Now the noble Earl is saying it is available to a wider group of people. It has probably got through to him that the Committee is not overjoyed about this piece of legislation. Will he go back, check this and consider whether producers should be guaranteed to get at least 20 pence? If they get more, that can be offset, but they want a guaranteed floor price.

[Earl Attlee]

My Lords, I will write in detail to the noble Lord on the issue of used cooking oil and see if I can draft a letter that will meet his concerns. At the moment I am convinced that this is a sensible policy.

[Lord Palmer]

My Lords, the point made by the noble Lord, Lord Bradshaw, emphasises what a complex issue this is, because it goes back to the Treasury. When the noble Earl writes to the noble Lord, Lord Bradshaw, perhaps he could kindly copy us all in so we can be kept abreast of the situation.

[Earl Attlee]

My Lords, it is standard procedure to write to all noble Lords who have taken part in any of these debates.

The noble Lord, Lord Reay, asked me several interesting questions. First, he asked if there were any suggestions that adding biofuel to fossil fuel reduces fuel efficiency. Yes, biofuel is less energy-dense but we are blending only low volumes. He asked about the proportion of biofuels supplied today under the RTFO that comes from crops. The latest published figures indicate that two-thirds comes from crops. He also asked about the cost to the motorist to date, which has been between £300 million and £400 million per year at current market prices. He asked whether, after consulting on a number of options, we are keeping the buyout mechanism. The answer is yes. For those who are unfamiliar with the system, the buyout mechanism is in place to provide a safety valve that will protect both industry and the consumer from spikes in the cost of supplying biofuel. It will allow obligated suppliers to buy up part or all of their obligation, rather than meeting it by redeeming the RTFCs that are issued to those supplying sustainable biofuels. The cost of buying out is 30p per litre of fuel that the supplier would otherwise have been obligated to supply.

The noble Lord also asked about the efficiency and effectiveness of biofuels, and whether there were any problems. He will recall that I recently answered an Oral Question in the Chamber about ethanol and petrol, which can cause some problems. However, they are not insurmountable.

The noble Lord, Lord Grantchester, asked me what I would say in response to industry concerns that there has been inadequate time to prepare for this and that consultation on the RTFO guidance has been very brief. We have no intention of delaying transposition and implementation. The renewable energy directive was published in 2009 and set mandatory sustainability criteria for biofuels. The implementation of the criteria should not come as a surprise to industry. Those companies that have taken the opportunity to report on a voluntary basis and to establish a sustainable biofuel supply chain will be well placed to meet the requirements of an amended RTFO.

[Lord Berkeley]

Before the noble Earl winds up, perhaps I could try a variation on the question that the noble Lord, Lord Bradshaw, posed. The Minister said that processing and selling biofuels was a good investment. He then said that there were no targets for the volume or the price—the sale price or the costs—beyond 2014. Would he recommend anybody to invest in this, or would he rely on the advice of the verification schemes of the big four, who of course will not have a conflict of interest?

[Earl Attlee]

My Lords, there is a target of 5 per cent in 2014 and each year thereafter. I remind the noble Lord that we will be consulting on the future after 2014.

This is the right time for this order. We did not allow ourselves to be rushed, as we wished to ensure that the legislation was built on robust evidence. The Committee will be aware that there were a number of policy shifts relating to biofuels in the past. We wanted to be clear that this order was based on clear facts and sound science.

We have also taken steps, both with the order and through earlier work, to ensure that industry has been given adequate time and information to prepare for the change. The RED was published in 2009 and there have been regular meetings since then between departmental and industry representatives to discuss the sustainability criteria. The RTFO has been in place since 2008, and those companies that have taken the opportunity to report on a voluntary basis and to establish sustainable biofuel supply chains will be well placed to meet the requirements of an amended RTFO.

I have tried to answer as many questions as possible. I will write to noble Lords on any major points that I have not addressed, and I have already undertaken to discuss one matter with a ministerial colleague. I hope that I have addressed the key issues raised today and that the Committee will agree that the order is the best way to proceed with our UK biofuel policy.

Motion agreed.

Committee adjourned at 4.53 pm.

House of Lords

Monday 5th December 2011 Lords Chamber

Monday, 5 December 2011.

14:30

Prayers—read by the Lord Bishop of Newcastle.

Poland: Restitution of Property

Monday 5th December 2011 Lords Chamber

Question

14:36

Asked By

[Baroness Deech]

To ask Her Majesty’s Government whether they will add to their priorities for the United Kingdom chairmanship of the Committee of Ministers of the Council of Europe the securing of restitution or compensation from the Government of Poland for British citizens whose property in Poland was seized by the Nazi and Communist regimes.

[Baroness Deech]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare that I may have a possible interest.

[Lord Wallace of Saltaire]

My Lords, the Government’s priorities for the UK chairmanship of the Council of Europe were announced by my right honourable friend the Minister for Europe on 26 October. Our main priority is for the reform of the Court of Human Rights. The Government have no plans to augment these. The Government take the issue of property restitution very seriously, as the noble Baroness will be well aware from her participation in conferences on this subject. We will continue to remind Poland of its stated intention to reinstate a restitution Bill, currently stalled, when its economic situation allows.

[Baroness Deech]

I thank the Minister for that Answer. Is he aware that Poland is the only post-Communist European nation without legislation to help the victims of Communist and Nazi property seizures, whereas other relatively poorer countries have such legislation? Is he aware that Poland is not engaging with the formal process that he mentioned and is unlikely to attend the conference on this next year, so will he take steps to help the claimants by, for example, pressing for a European representative on reparation and asking for a quid pro quo for the £2 million UK contribution to Poland which was recently made for the preservation of Auschwitz?

[Lord Wallace of Saltaire]

My Lords, there are several complex issues in that supplementary question. Legislation has indeed been passed in all the other post-Communist countries although I am advised that its implementation has been patchy. Poland has suspended its legislation on the grounds that the €5 billion which it estimates would be the cost would take it above its current budgetary limit. We all understand that in current circumstances national Governments find these things difficult. I am very conscious that restitution in Poland is an unusually difficult issue after 80 years in which first Nazi and then Russian troops have rolled over Poland. There was confiscation and enormous destruction, then Communist confiscation, and a great deal of movement of boundaries and forced relocation of Poles, Germans and others.

[Lord Palmer of Childs Hill]

My Lords, I also declare a sort of interest in that one of my late grandmothers was Polish and did not come out of Poland at the end of the war. However, I will not be one of those seeking compensation. Further to what the noble Baroness, Lady Deech, has said, when and if Her Majesty’s Government press the Polish Government, will they ask them to ease the evidential requirements needed to make claims, which are very complicated, and assist people to access the records, as that assistance is not always given? My noble friend the Minister spoke of the financial difficulties that Poland is experiencing, but will the Government ask it in very strong terms to set up a central fund to at least meet a small percentage of the claims rather than blocking any claims whatever?

[Lord Wallace of Saltaire]

My Lords, Her Majesty’s Government have said on a number of occasions to the Polish Government that we regret the slow progress on this issue. We supported the 2010 Terezin declaration. We will be an active participant in the review conference next year and are actively engaged with other like-minded Governments on this issue. We do not have a formal position at present on the question of an EU representative for Holocaust restitution.

[Lord Howarth of Newport]

My Lords, will the Government be more ambitious in, at any rate, the field of cultural property? Will they take this opportunity to put forward proposals for a treaty, possibly a convention—perhaps under the auspices of UNESCO—to establish internationally agreed legal principles for the determination of claims for compensation for, or restitution of, cultural property that was wrongfully taken in circumstances of war or occupation?

[Lord Wallace of Saltaire]

I am not sure how far back the noble Lord wishes to take that. I remember being taken around Prague Castle in 1993 and shown the empty spaces on the walls where the pictures that the Swedish army had taken away in 1643 had been. As we know, the issue of cultural property, particularly that of the 20th century, is actively being pursued. A number of museums are extremely hesitant about this, and there was an interesting article in one of last weekend’s supplements about this. We are engaged in the whole issue of cultural property and restitution but, as the noble Lord knows from a number of current cases in New York, this can sometimes raise immensely complicated questions.

[Lord Lester of Herne Hill]

Is the Minister aware that at least one case on this very issue is already pending before the European Court of Human Rights, and it would therefore be completely inappropriate for the United Kingdom, during its presidency, to take up this issue? Is it right that British Government received £5.4 million under the indemnity agreement made after the Second World War to cover the international legal aspect; that under the Polish law of 1997 Jewish religious communities in Poland can file applications before a regulatory commission on Jewish religious communities; and that 5,500-odd applications have been received?

[Lord Wallace of Saltaire]

My Lords, I am aware that the issues of restitution of communal property are in some ways rather different from restitution of individual property. I stand to be informed by the noble Lord on the case before the European Court of Human Rights, and he is of course correct to say that we are, in a sense, in the second round on the issue of restitution. There was a first round in the years immediately after the Second World War. The second round began with the end of the Cold War and the whole set of issues that then opened up regarding restitution from post-Communist Governments.

[Lord Wills]

My Lords, when do Her Majesty's Government expect full implementation of the Terezin declaration by all countries, including Poland? What measures are Her Majesty's Government taking to ensure that this might happen before the 70th anniversary in 2015 of the end of World War 2?

[Lord Wallace of Saltaire]

My Lords, these will be very much the topics for discussion at the review conference next year.

Palestine

Monday 5th December 2011 Lords Chamber

Question

14:43

Asked By

[Lord Dykes]

To ask Her Majesty’s Government what level of support they will give to the latest efforts of the Palestinian Authority to secure admission to full United Nations statehood.

[Lord Wallace of Saltaire]

My Lords, on 9 November the Foreign Secretary announced in a Statement to the House of Commons that the United Kingdom will abstain on any Security Council resolution on Palestinian UN membership. We will not vote against the application because of the progress that the Palestinian leadership has made towards meeting the criteria for UN membership, including statehood, but we cannot vote for the application while our primary objective remains a return to negotiations and the success of those negotiations.

[Lord Dykes]

My Lords, I understand that point but, none the less, in the general background, how long can this basic madness go on after 44 years? Indeed, over the weekend, Defense Secretary Panetta issued a very serious warning to Israel about it being isolated in the Middle East. Surely Palestine cannot be the only country in the world denied statehood at the almost exclusive request of the USA and one other country. What next step in ethical British foreign policy will be taken to promote this matter?

[Lord Wallace of Saltaire]

My Lords, we certainly recognise that the case for progress on a two-state solution to the Israel-Palestine conflict has become more urgent as the pace of change across the region has quickened. The quartet issued a statement at the end of September in the context of the call for a vote in the UN, calling for negotiations to be resumed within a month. That, of course, has not succeeded. The quartet will meet again in a few weeks’ time. The possibility that negotiations will in effect end raises some very difficult questions for both parties in this conflict. Palestine remains an occupied territory. It has, however, with a great deal of support from the United Kingdom and others managed to build a number of the basic aspects of the framework for statehood. We welcome that, we have supported it, and we wish negotiations towards a two-state solution to resume as soon as possible.

[Lord Beecham]

My Lords, what support will the Government give to encourage states in the region to recognise the state of Israel, which has of course been a member of the United Nations for 62 years?

[Lord Wallace of Saltaire]

My Lords, I am not entirely briefed as to which states recognise Israel and which do not, let alone what the implications of changes in regime might mean for that, but I promise to write to the noble Lord.

[Lord Wright of Richmond]

My Lords, in my Question to the noble Lord, Lord Howell, on 13 September, I asked whether he accepted that granting statehood to the Palestinians would not of itself preclude future negotiations. Does the Minister accept that acquiring statehood, rather than inviting punishment from Israel and the United States, would put the Palestinians on a more equal footing with their Israeli negotiators and thus improve the chances of achieving the credible and substantial negotiations that are, as I understand it, the Government's objective?

[Lord Wallace of Saltaire]

I repeat that the Government’s primary objective is to press for the resumption of negotiations between the two parties, based on the principle of a two-state solution around boundaries to be agreed but based on the 1967 boundaries. We are conscious that we are slipping away from that possibility for a range of reasons. We are also conscious that if neither side were to believe any longer in the possibility of a negotiated solution, the threat of a return to violence would be real.

[Baroness Falkner of Margravine]

My Lords, does my noble friend accept that the case for Palestinian statehood would be much improved if Fatah and Hamas—in other words, the two different jurisdictions within former Palestinian lands—were able to meet in accordance with the reconciliation agreement of May 2011, the Cairo agreement, and speak with one voice on a Palestinian state rather than with two?

[Lord Wallace of Saltaire]

My Lords, the Government would be extremely happy to see a successful reconciliation between Fatah and Hamas based on the acceptance of the state of Israel within a two-state solution and the provision of a viable shared Administration for both Gaza and the West Bank.

[Lord Turnberg]

My Lords, while we are all very anxious for a two-state solution to emerge from all this, to follow the question asked by the noble Lord, Lord Beecham, does the Minister agree that it is rather unhelpful for a Palestinian Government who include Hamas to seek membership of the United Nations at the same time as they deny the existence of another state that belongs to the United Nations, namely Israel?

[Lord Wallace of Saltaire]

My Lords, a great deal of unhelpful statements are being made on both sides. It was brought to my attention that one British national newspaper the other week published an advertisement by the Israeli Ministry of Tourism that showed the state of Israel as including Judea, Samaria and the Golan Heights. That is not entirely helpful for an agency of the state of Israel, either. There are real problems, and both sides recognise that. If we concentrate on the problems on both sides, we will not get back to negotiations, which is, above all, what we need to do.

[Lord Hannay of Chiswick]

My Lords, if the matter were to come before the United Nations General Assembly and the proposition was that Palestine should be given a status higher than its existing one, and one that has been used in the past by sovereign independent states such as Switzerland, would we in that circumstance be able to vote for it?

[Lord Wallace of Saltaire]

My Lords, there is not yet a proposition before the General Assembly. When that emerges, we will take our decision in the light of our commitment to make sure that everything that is done promotes negotiation between the two parties.

[Lord Teverson]

Can the Minister please explain to me how there can be a two-state solution where there are not two states?

[Lord Wallace of Saltaire]

My Lords, the two-state solution is intended to be the end point of a successful negotiation.

[Lord McAvoy]

My Lords, as the state of Israel steadily pursues its policy of appropriating land, evicting Palestinians from their own land and steadily encroaching on the territory that Palestinians hope to include in their part of a two-state solution, was abstention really good enough?

[Lord Wallace of Saltaire]

My Lords, I appreciate that passions run very high on both sides of this argument and that passions also rise high on the ground. Low levels of violence are being experienced on both sides at present. The worst thing would be for negotiations not to resume and for the current level of intermittent violence on both sides to blow up again into a more general conflict. The alternative to peace is conflict, which is why negotiations for peace are very important.

Prisons: HM Young Offender Institution Feltham

Monday 5th December 2011 Lords Chamber

Question

14:51

Asked By

[Lord Ramsbotham]

To ask Her Majesty’s Government what action they are taking to prevent prisoner escort vans delivering young offenders to Her Majesty’s Young Offender Institution Feltham after the contracted time of 7.30 pm.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the safe delivery of vulnerable young people is a priority, and we scrutinise contract reasons for any late arrivals. We monitor the contractors’ performance continuously and are working closely with them to address any concerns regarding late arrivals to Her Majesty’s Prison Feltham.

[Lord Ramsbotham]

My Lords, I thank the Minister for that reply. This is not a new problem, although this present contractor started work only at the end of August. Over 10 years ago, when I went into the same problem, I discovered the reason was that, in order to save money, the contractor was using the drivers as court orderlies, and therefore they could not start delivering prisoners until after the courts had closed. This is actually a foul and was leading to considerable trouble. Can the Minister tell the House whether this practice is still going on and, if so, whether steps will be taken to stop it?

[Lord McNally]

My Lords, I am not aware that that practice is still going on. However, I shall investigate the matter and write to the noble Lord. It is true that some late arrivals are due to the fact that courts can sit until eight o’clock and travel time often depends on the traffic. Between the end of a case and departure from the court, post-court reports have to be prepared at the sentencing court by the YOT concerned and this can also cause some delay. However, with regard to the point that the noble Lord raises, I shall simply have to investigate.

[Baroness Sharples]

Can my noble friend tell us the name of the contractor?

[Lord McNally]

I can indeed. Serco and Wincanton are the contractors.

[Lord Dholakia]

My Lords, the criminal justice system treats young offenders differently from adult offenders, yet the latest available figures show that there have been just over 2,800 cases where young offenders have had to share transport with adult offenders. Will the Minister ensure that this practice is stopped now that the new contracts are being awarded, and should that not form part of the contractual obligation with the firms being awarded these contracts?

[Lord McNally]

My Lords, we have to accept the certain realism that occasionally there will be dual use of vehicles. However, that is not something that we want and, indeed, as part of the new contract the contractors are bringing in specially designed hybrid vehicles with sliding partitions to separate prisoners of different age groups and different sexes. This will, we hope, allow the contractors to maximise the use of the vehicle fleet and to reduce costs.

[Lord Boswell of Aynho]

Given my own experience as a constituency MP for a different young offenders institution, will the noble Lord accept that this is by no means a local problem? It seems to have been going on for a very long time. Will he look in particular at the human side of this, because often these are young people, many of whom have just been sentenced for the first time? Will he recognise that if they arrive late, the hour is bound to be late; they are probably extremely tired; they might not have been fed and they might even be frightened? Is it not important that we address this?

[Lord McNally]

Most certainly, and one policy in place is that if a young offender arrives late and there is no opportunity to complete the full assessment that evening, the young offender is classified as a vulnerable prisoner and is treated with suitable support. In the circumstances, that underlines the duty of care with which we approach this matter.

[Lord Bach]

My Lords, this is a Question about youth justice and I broaden it slightly. The Minister will know that the Government’s own impact assessment for the legal aid Bill, which is before this House at the moment, states that the proposals in Part 1 of the Bill—that is, the cutting of legal laid for social welfare law—generate a risk of increased criminality. It states:

“This may arise if unresolved civil or family disputes escalate, or if criminal means are used to resolve disputes in future”.

What is the Government’s estimate of the number of young people likely to be affected by these changes—specifically the likely number of young offenders—and how does that fit in with the Government’s policy of reducing youth crime?

[Lord McNally]

My Lords, we will have a very thorough opportunity to discuss the Legal Aid, Sentencing and Punishment of Offenders Bill. Impact assessments are what they are—assessments. It may be that some of the concerns do not arise; other factors may come into play. Therefore, I do not think it is realistic for me to give an answer to that speculative question.

Aerospace Industry

Monday 5th December 2011 Lords Chamber

Question

14:57

Asked By

[Lord Soley]

To ask Her Majesty’s Government what discussions they have had with the aerospace industry regarding problems facing that industry.

[Lord De Mauley]

My Lords, the Government have continuous and wide-ranging dialogue with the aerospace industry. The Secretary of State for BIS chairs the aerospace business leaders group—involving some of the sector’s leading businessmen as well as the national trade association ADS—which is tasked with identifying strategic issues that affect the sector. These issues are then addressed by Government and industry jointly, through the aerospace growth partnership. The Ministry of Defence similarly has wide-ranging discussions with defence aerospace businesses.

[Lord Soley]

I am grateful for that Answer. Does the Minister accept that this is a crucially important part of our manufacturing base, as well as our science and technology base, which is under threat at the moment both from some of the defence cuts and from the lack of a coherent civil aviation policy? Will he undertake to make sure that the Government stay in very close contact with the industry lest we lose our leading position in this premier international industry?

[Lord De Mauley]

My Lords, yes, I share the noble Lord’s concern. Focusing specifically on defence, I think that it is true that defence spending is declining worldwide, so we have developed the talent retention system to retain skills that may be released as some companies in the sector lay people off. There is, after all, a shortage of skilled engineers nationally. Some defence suppliers have diversified and the growth in other areas will offset the downturn in this sector. It is also worth saying that aerospace companies have been successful in both rounds of the regional growth fund.

[Baroness Kramer]

My Lords, as my noble friend the Minister will know, this is an industry that operates almost exclusively in dollars. Can he give us an assurance that last week’s arrangements between key central banks will ensure access to a steady supply of dollars for British aerospace industry and its global partners? As he knows, this has been a question mark hanging over the industry in the last few weeks.

[Lord De Mauley]

My Lords, my noble friend is absolutely right. The Government are certainly focused on that issue.

[Lord Craig of Radley]

Can the Minister confirm that the purchase of the F35 Joint Strike Fighter for the Royal Navy and the Royal Air Force is essential for the future viability of British and other aerospace systems, essential to the security of the skilled workforce and essential to the Treasury for the tax take that will come from worldwide sale of this aircraft?

[Lord De Mauley]

My Lords, I cannot give the noble and gallant Lord the assurance he is seeking, but I can say that we are absolutely aware that the first responsibility when procuring equipment is to provide our Armed Forces with the capabilities they require at a cost that is affordable and represents best value for money for the taxpayer.

[Lord West of Spithead]

My Lords, would the Minister agree that defence spending is perhaps going down around the world in countries that might see the world and the future world order rather in the way we do, but in the countries that do not see it in that way defence spending is actually going up—in some of them quite alarmingly? Would the Minister also agree that the best way for us to build up a very strong defence industry, which, as has been said, is so important in this country, is for us to buy from it and not to buy off the shelf from abroad?

[Lord De Mauley]

The noble Lord makes a fair point, and the Government have their eye very firmly on other regions of the world. It is also worth saying that defence exports are a key issue for this country, so long as they are legitimate.

[Lord Teverson]

My Lords, I am sure that the Minister welcomed the UK-France defence treaty as much as I did. As part of that, there are a number of weapons programmes. Will the Government make sure that they defend the interests of the British defence industry as strongly as, I am sure, the French Government will ensure the strength of the defence industry of France within the context of that treaty?

[Lord De Mauley]

Yes, my Lords.

[Baroness Royall of Blaisdon]

My Lords, when we talk about the aerospace industry, we tend to think of large companies such as BAE Systems, but the supply chain and SMEs are extremely important. Can the Minister give me an assurance that, when the Government are looking at things like defence cuts and cuts in the aviation industry, they will also consider what jobs may be lost in the supply chain?

[Lord De Mauley]

My Lords, that is a very important point and is a key focus of the aerospace growth partnership which I referred to in my initial Answer. The work that it is undertaking is addressing how we can make the UK aerospace supply chain more competitive, for example through improving our manufacturing processes and capabilities, ensuring that companies can access finance, increasing their ability to share risk with higher-tier suppliers and improving supply chain relationship management.

[Lord Avebury]

My Lords, can the Minister say what are the consequences of the sale of the Harriers to the United States? Will we have any work remaining in the maintenance and upkeep of the Harriers now that they have all gone to the US?

[Lord De Mauley]

My Lords, I cannot answer that question, but I very much hope so. I will write to my noble friend.

[Lord Haskel]

Thinking about the supply chain, the Minister said nothing about skills. Is he aware that many component suppliers are not able to supply parts because of the shortage of skills? Aerospace manufacturers are having to buy their components abroad. The logical conclusion of that is that they will put the manufacture of the planes themselves overseas.

[Lord De Mauley]

That is also an extremely important point. We have invested £1.3 billion in apprenticeships this year and another £180 million in funding adult apprenticeships to deliver 250,000 more apprenticeships over the spending review period than was previously planned, and £250 million has been allocated to develop the vocational training that businesses need. We are making it easier for small employers to take on young apprentices, and we are working with the lead trade association ADS and the sector skills group SEMTA to secure the skills and competencies and make aerospace the industry of choice for the workforce of tomorrow.

[Baroness Symons of Vernham Dean]

My Lords, the Minister was somewhat ambivalent earlier on in answering the question about whether the Government would take on the Joint Strike Fighter. Will he assure the House that in making any decision on this point, the Government will fully take into account the enormous amount of money that has already been spent by the Government, and indeed the previous Government, in investing in the future of the Joint Strike Fighter?

[Lord De Mauley]

My Lords, I am sorry if I appeared ambivalent. The noble Baroness is quite right and, yes, I will.

[Lord Berkeley]

My Lords, given the Statement last week by the Chancellor committing not to build any more runways at Heathrow, Stansted or Gatwick and expressing interest in building a fourth airport for London in the Thames estuary as a way of increasing the capacity of London airports as a whole, will the Minister explain to the House how the Government are going to take forward studying this new project?

[Lord De Mauley]

Yes, my Lords. The coalition Government have made clear that they do not support the construction of a third runway at Heathrow because of the unacceptable impacts on local communities and on climate change. In advance of the Developing a Sustainable Framework for UK Aviation consultation next spring, the Government are therefore considering a number of alternative measures, including taking on board the recommendations of the South East Airports Task Force.

[Lord Hamilton of Epsom]

When my noble friend hears the appeal of the noble Baroness, Lady Symons, that he should not be ambivalent over the Joint Strike Fighter, should he not be quite clear in his own mind, and should the Government not be quite clear, how much it is going to cost before we commit ourselves to buying it?

[Lord De Mauley]

My Lords, that thought is never far from the Government’s mind.

[Baroness McIntosh of Hudnall]

Since the question of runway building has been raised—I was not sure that it would be under the heading of this Question—can the noble Lord assure us that, when the taskforce comes to deliver its conclusions, built into those there will be a proper assessment of the kind of long-term impact on communities, which have been waiting years to know whether a runway would or would not be built in their area?

[Lord De Mauley]

My Lords, that is one of many considerations that absolutely must be taken into account.

Welfare Reform Bill

Monday 5th December 2011 Lords Chamber

Order of Consideration Motion

15:06

Moved By

[Lord Freud]

That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 30, Schedule 1, Clause 31, Schedule 2, Clauses 32 and 33, Schedule 3, Clause 34, Schedule 4, Clause 35, Schedule 5, Clause 36, Schedule 6, Clauses 37 to 48, Schedule 7, Clauses 49 to 69, Schedule 8, Clauses 70 to 89, Schedule 9, Clauses 90 and 91, Schedule 10, Clauses 92 to 100, Schedule 11, Clause 101, Schedule 12, Clauses 102 to 140, Schedule 13, Clause 141, Schedule 14, Clauses 142 to 145.

Motion agreed.

Remembrance Sunday (Closure of Shops) Bill [HL]

Monday 5th December 2011 Lords Chamber

Order of Commitment Discharged

15:06

Moved By

[Lord Davies of Coity]

That the order of commitment be discharged.

Motion agreed.

Devolution (Time) Bill [HL]

Monday 5th December 2011 Lords Chamber

Order of Commitment Discharged

15:07

Moved By

[Lord Tanlaw]

That the order of commitment be discharged.

Motion agreed.

Health and Social Care Bill

Monday 5th December 2011 Lords Chamber

Committee (10th Day)

15:07

Relevant documents: 19th report from the Delegated Powers Committee, 18th report from the Constitution Committee.

Clause 27 : Appointment of directors of public health

Amendment 225

Moved by

[Lord Patel]

225: Clause 27, page 55, line 33, leave out “acting jointly with” and insert “with the approval of”

[Lord Patel]

My Lords, while the House settles down, I thought I might tell your Lordships what a hazardous journey I had here today. The temperature difference is only 12 degrees.

The amendments in this group relate mostly to issues concerning public health. It is to be commended that the Bill places a duty on the Secretary of State to take steps to protect the public from diseases and other dangers to health, putting public health at a high level of government responsibility and particularly that Public Health England, once established, will be accountable to the Secretary of State. I look forward to the public health outcomes framework. It is none the less disappointing that, while the Bill places a duty on the Secretary of State to pay regard to reducing inequalities in health, it does not do so for public health. None of my amendments will alter the thrust of the policy in the Bill; nor will they alter the structures for the delivery of public health locally or nationally. I hope that they will be seen as genuine attempts to improve the Bill and improve the chances of the delivery of the public health agenda. I am pleased that the amendments have such widespread support among noble Lords on all sides and I look forward to their contributions.

I will speak to Amendments 225, 226, 229 to 232, 233A, 234, 259 and 339. Amendment 225 deals with the appointment of directors of public health. Amendments 226, 229 and 231 allude to their training and qualifications. Amendment 228 applies to their accountability within the local authority and Amendment 230 concerns registration criteria. Amendment 234 applies to duties regarding the termination of employment of directors of public health and Amendment 259 concerns employment conditions. Amendment 339 deals with the regulation and registration of public health specialists.

As regards Amendments 228, 229, 230 and 231, the director of public health will be the strategic leader for public health in his or her local authority, providing expert public health advice and guidance across health protection, health improvement and health services. In order to provide effective strategic leadership, the director of public health must be able to influence all aspects of the work of the local authority in the wider determinants of health, such as housing, employment, access to services and education. He or she will also work with other organisations, including local health and well-being boards, HealthWatch England and clinical commissioning groups.

The director of public health must be an appropriately qualified and registered public health specialist. He or she must report directly to the accountable officer of the local authority, the chief executive. That is important because if the director of public health is not directly accountable to the chief executive but to some other person and, therefore, is subordinate, their authority will be diluted. The majority of directors of public health are now appointed jointly by the primary care trusts which employ them and local authorities to which they are seconded. Under the new system, all directors of public health will by law be jointly appointed by local authorities and the Secretary of State. That function will be undertaken by Public Health England and they will be located within and employed by local authorities.

As it currently stands, the Bill simply states that a local authority should “appoint an individual” without any specification of the required skills, expertise or stipulation of how these appointments should be carried out. A local authority could, for instance—indeed, there is some evidence that some are actively seeking to do so—tack the public health responsibilities onto, say, the duties of the director of adult social services or even the director of education. Most of them of course are wise and will not do that but it is possible.

Perhaps I may allude to some of the core competences that will be required of directors of public health, although this is not an exhaustive list. They will need to ensure the proper design, development, implementation and utilisation of the major information systems to underpin public health improvement and action for the population across disciplines and organisations. They will need to interpret and advise on highly complex epidemiological and statistical information about the health of populations to the local authority, the NHS and voluntary organisations, and to develop a strategy for reducing health inequalities. As executive directors, they will need to take a leadership role in specified areas with local communities and vulnerable hard-to-reach populations. They will have responsibility for dealing with infectious diseases and threats, including food and water-borne diseases. They will also have responsibility for preparing for emergencies, including pandemic influenza, and for safeguarding the health of the population in relation to communicable diseases, infection control and environmental health, including delivery of immunisation targets.

There are a lot of tasks and they are much more exhaustive than the list I have given the House. Therefore the person appointed as director of public health must have the appropriate qualifications and experience to carry out those tasks. The statutory requirement to have an appointments advisory committee that appoints directors of public health is therefore necessary. When appointing public health specialists, it provides a system which exists in the NHS now for all consultant appointments of monitoring applications for specialist public health posts. Through this system, candidates’ qualifications, training and experience are scrutinised by experts in the field of public health, usually the UK Faculty of Public Health advisers, to ensure that only appropriately qualified and trained people are appointed. Therefore it is important that all directors of public health and consultants in public health are appointed through a statutory appointments committee.

I turn to Amendment 234. Directors of public health will not only have many tasks, but they will have other accountabilities apart from the local authority. While their primary accountability is to the local authority, they will also be accountable to the director of Public Health England and have regional or national responsibilities in the wider public health service and for health protection. Yet while any authority that wishes to dismiss a director of public health will be obliged under statute to consult the Secretary of State, the Secretary of State will not have a veto over any dismissal, although he will be approving the appointment of a director of public health. I believe therefore that it is essential that any local authority wishing to terminate the appointment of its director of public health must be required in statute to have the Secretary of State’s approval and not merely to consult him or her.

In my view, the director of public health’s ability to report independently on the health needs of their community and population is important and critically on how well or not these needs are being met. He or she may be compromised if there is no protection against being sacked at the request of powerful local influences. The need for the Secretary of State’s approval is therefore necessary to reduce this risk. My amendment seeks to address this exceptional—I believe it will be exceptional—but nevertheless quite real possibility where the director of public health’s ability both to define and implement a local health strategy comes into conflict with other strong local interests seeking to dilute the impact of this strategy and compromise the health of the local population.

Amendment 259 will ensure that as public health specialists move out of existing NHS structures into Public Health England and local authorities, they will be guaranteed equivalent national terms and conditions of service to those in the NHS. That is important to ensure continued workforce capacity in public health, cohesiveness and skills and that public health remains an attractive career path. Clarity over the terms and conditions of employment for public health specialists would provide some measure of assurance that the profession will continue to be developed as an attractive one on a par with other medical specialties. The move of public health away from the NHS could potentially make it a less attractive career choice, particularly for young clinicians. That is an important factor. There is a real risk that without national terms and conditions, at parity with existing NHS terms, the public health workforce will become fragmented. As we saw in a report published last week, morale at the moment among the public health workforce is very low because of uncertainties about their role and the employment situation in the future.

Amendment 339 deals with regulation and registration of public health specialists and directors of public health. As Professor Scally concluded in his Review of the Regulation of Public Health Professionals, a review commissioned by the Chief Medical Officer of England and which investigated whether statutory regulation was needed for individuals operating at consultant level in public health,

“public expectation is such that, without the introduction of mandatory regulation of public health consultants and specialists by statutory health professional regulatory bodies, confidence would be lacking in public health professionals engaged at a high level in public health policy, planning and actions”.

Currently, we have a system whereby all medically qualified public health specialists working as consultants or directors of public health must by law be registered either with the General Medical Council or the General Dental Council if they are public health dentists. Specialists with a nursing or midwifery background are regulated through the Nursing and Midwifery Council. However, that is not the case with public health specialists from non-medical backgrounds, even though they will often carry identical responsibilities to their medically trained colleagues. A voluntary system of regulation, operated by the UK Public Health Register, is currently in place for those from backgrounds other than medicine. At the present time, in order to work at consultant or specialist level in public health in the NHS, a person must be on a specialist register such as that held by the GMC or the GDC. Non-medical specialists must be registered on the UK Public Health Register. With the move to local authorities of the majority of the public health workforce, the danger of a two-tier system of regulation or, worse still, no system of regulation could prevail. That is a risk.

Doctors trained as public health specialists have to undergo five years of training as specialist registrars and obtain a certificate of specialist training to be on the specialist register of the General Medical Council. Subsequently, they have to provide evidence of involvement in continuous professional development and be re-evaluated every five years. Similar mechanisms exist for dentists. The role of director of public health in a local authority carries a level of responsibility in relation to the health and well-being of the local population. It requires public confidence and credibility from other organisations. The person who holds such a post should be properly trained and qualified and be on a register. That would be appropriate.

The amendment would establish that all public health specialists not on medical or dental registers should be registered and that the Health Professions Council should establish such a register. I beg to move.

[Lord Walton of Detchant]

My Lords, I warmly support this clutch of amendments relating to the future of the public health service in the UK, so ably proposed by my noble friend Lord Patel. No doubt the Government have taken full account of the House of Commons Health Committee’s detailed report on public health, 12th Report of Session 2010-12, which raises a number of crucially important issues.

There are three principal domains of public health: health protection, which addresses environmental threats to population health; health improvement, tackling health inequalities and lifestyle issues impacting on health and well-being; and healthcare public health, which applies public health expertise to the provision of healthcare services. It is a significant omission in the Bill that it does not include any statutory duty on local authorities to address health inequalities in discharging their public health functions. That is a serious omission in the Government’s plans.

As my noble friend said, all directors of public health will by law be jointly appointed by local authorities and the Secretary of State, with the latter function being exercised through Public Health England, but they would be located within and employed by local authorities. Does this mean that directors of public health who hold medical and dental qualifications will, as at present, hold honorary consultant appointments, with all that that implies, as indeed my noble friend raised in his proposals? I agree entirely with his proposal that the appointment of such individuals should involve an advisory appointments committee accredited by the Faculty of Public Health, as is currently the case in respect of directors of public health within the NHS. Can the Minister confirm that that will be the case?

As my noble friend Lord Patel said, young doctors and dentists training for a career in public health undertake a programme of training for five years as specialist registrars. Who is going to employ them in the future? Will it be Public Health England? Local authorities do not understand what a registrar is, and for that reason it seems extremely difficult to consider that those people training for careers in public health will also fall under the ambit of the local authorities. Perhaps the Government can give us an assurance on that point. I agree with my noble friend Lord Patel that it is crucial that the director of public health be appointed at chief officer level, reporting directly to the council chief executive, and that any local authority wishing to terminate the appointment of its director of public health must be required by statute to have the Secretary of State’s approval.

Another important issue is to recognise the fact that healthcare public health, the third domain, is a core part of the public health service. Its role is to bring public health skills and knowledge to bear on the commissioning of health services, helping to ensure their quality, safety, efficacy, effectiveness, value for money and accessibility. The Government’s initial proposals were seen as downgrading the role of public health in the commissioning of healthcare services, but, happily, it has been clarified. The directors of public health and their teams will provide public health expertise, advice and analysis to commissioning groups, health and well-being boards, and the NHS Commissioning Board. This will be one of the mandated public health services that local authorities must commission or provide. However, this is not enough. Can the noble Earl give us an assurance that the local director of public health will be a member of the board of each clinical commissioning group? There should be a qualified public health professional on the NHS Commissioning Board; and the board should routinely take advice from qualified public health professionals when commissioning decisions are taken. We seek assurances from the Minister on that particular point.

Finally, I support very strongly the comments made by my noble friend Lord Patel about the regulation of public health specialists, including directors of public health who do not hold a medical or dental qualification. Those who are in possession of medical and dental qualifications are of course regulated by the General Medical Council and the General Dental Council. What about the specialists in public health who are not so qualified? Is it the Government’s intention, as Professor Gabriel Scally has indicated, that these individuals should come under the Health Professions Council for their registration? In my opinion and that of many professionals, some form of formal registration rather than voluntary registration is very important and, in fact, absolutely essential. I support these amendments.

[Lord Mackay of Clashfern]

My Lords, I would like to support these amendments generally from the point of view of the tremendous focus that comes on the local public health official when there is an outbreak of ill health—for example, E.coli—which gives people tremendous anxiety. They look for leadership to deal with it; they look to the local official, the local member of the public health team, to do that. The amendments proposed by the noble Lord, Lord Patel, have an important part to play in assuring that the people who are put in that position are adequate to deal with such a situation if it comes along. Fortunately, from time to time there is a quiet spell. Then, all of a sudden, something breaks out that causes tremendous anxiety in the local community. They like to feel that the person who is put into the front line to deal with it has a capacity to know what he is doing and to express himself in a way that enables the community to deal with the thing without excessive scaremongering—but, on the other hand, effectively.

15:30

Baroness Cumberlege: I support a number of these amendments. Indeed, my name is harnessed to them. When the Minister wrote to us after Second Reading, he answered the noble Baronesses, Lady Eccles and Lady Gould, on the subject of the importance of the directors of public health and their status. He said that the Government would expect them,

“to be of Chief Officer status with direct accountability to the Chief Executive for the delivery of local authority public health functions. We are currently considering the best approach to ensure that directors of public health have appropriate status”.

How far has my noble friend got along that road and does he see any of these amendments, which so many of us support, as going some way to enhancing that status?

I agree with my noble and learned friend Lord Mackay of Clashfern. These people have to be extremely brave and courageous and should be confident enough to open any door. They need to poke their nose into all sorts of areas and issues on which the local authorities will not want them to do so. Their annual report should be challenging. But they must have a proper status and be supported so that they cannot be fired just because they are awkward, uncomfortable and difficult people. That is why I very much support the idea that the Secretary of State should be involved in this, because I think that these people are exceptional, or should be—and I am sure that many of them are at the moment. They are moving into a very different type of culture.

I have served in local government and I just know that in local government what is really most important is the idea of place. It is knowing your communities very well, the streets and the houses where people live—all sorts of intimate details about your voters. What really matters is that you get re-elected at the next election, so you are grounded in place. Directors of public health will be much more evidence-based, and they have to be analytical. So this is really a very different discipline that they will use to expose some of the difficulties in communities’ health in that area. They need the confidence and some sort of security so that they can be very uncomfortable—so that they can be difficult and say things that nobody wants to hear. Their annual report should be free from pressures from local authorities and those who employ them.

These are very important amendments, and I hope that my noble friend will consider them seriously and see how in this very important area he can enhance the status, security and confidence of directors of public health.

[Baroness Jolly]

My Lords, I rise to underpin much of what has already been said, so I will say it very briefly. The appointment of a DPH to a local authority will be critical. Not only will he or she play a key role in something like an outbreak of E. coli, when that sort of expertise is looked up to and expected from the community. They will be absolutely pivotal in delivering and making health plans, both through the health and well-being board and working with the CCGs. There is no way that DPHs could be a shrinking violet; as my noble friend Lady Cumberlege has just said, they really have to be able to mix it and get in there, but what they do has to be totally evidence-based. So it is a really interesting balance for someone who has their hands on all the facts but is not necessarily an introverted individual. One key thing that they really have to have is the support of the chief executive of the local authority. Furthermore, they have to report to them and have exactly the same status as, say, the director of adult social services so that they have that level of authority when going out and talking to various people in the health and social care community. That will be absolutely critical if the localism and local decision-making built into this Bill is going to work.

I have attached my name to Amendments 228 and 229. The person described in the amendments really should be seen as a person of standing, so they should have director status and be responsible to the chief executive of the authority. I was a bit alarmed when talking to my own MP this weekend. He was saying that he had learnt from his conversations with the chief executive of the local authority that the authority was not at all minded to do this with the appointment. That would completely undermine any sort of position that the director might have. They have the key role and need to be a person of standing. Without them having such a position within the council, many of the plans will be totally undermined.

[Lord Warner]

My Lords, I support the thrust of most of the amendments in this group and have added my name to Amendments 226, 259 and 339. As others have said, it is essential to have in the Bill a clear commitment from the Government, and indeed from Parliament, that three things are very clear when it comes to directors of public health. First, we have to make sure that they should be registered public health specialists, with appropriate qualifications and expertise. That seems to me a given if these people are to have standing in the local communities and, perhaps, even in a wider area. Secondly, the director should be accountable to the local authority’s head of paid service and be able to report directly to the local authority itself, particularly when there is an area of great concern in that local community. One does not want people intervening between the director and local authorities’ main committees when a serious incident is taking place locally.

Thirdly, for the reasons that everybody else has mentioned, we have to ensure that a director of public health cannot simply be fired on a whim because they are doing something which is uncomfortable or unpopular, or has brassed off a local interest of one kind or another. That is particularly critical when we see the difference of approach that the noble Baroness, Lady Cumberlege, put very well: between the evidence-based approach of a director of public health and the commitments that local authority members, quite reasonably, have to seek re-election from time to time. That is how the system works, but a different approach is likely to run through some local areas when something is uncomfortable for the local authority but is backed up by the evidence that the director of public health can put in the public arena.

Directors of public health need to be seen to be capable of doing the job and to be able to deliver bad news—as well they may have to. They should be able to expect to be supported and protected locally when they have to deliver uncomfortable news. Amendment 226 is part of that package of armour that we need to wrap around directors of public health. There may be better ways to do that in these amendments than in Amendment 226, but its purpose certainly ought to be in the Bill.

Amendment 259 is an important part of the protective armour that I have mentioned for directors of public health, in that it aims to ensure that they simply do not lose ground financially over time in their pay and conditions of service with NHS medical equivalents. I am not a supporter of creating situations where there are bidding wars between local authorities and the NHS. We have seen that with occupational therapists over the years, where one side decides that it can secure some advantage by upping the ante a bit for a specialist group when there is a degree of local competition for a sometimes scarce resource, so I am not in favour of doing that.



However, my experience—and I have worked six years in local government—is that where there are these bidding wars, usually the NHS specialist is further up the greasy pole in terms of pay and conditions of service, and the specialist at the local level is trying to catch up with what has happened. That is why Amendment 259 is important, in that it ensures that there is a catching-up process. Much more importantly, it tries to ensure that it is not necessary to have a catching-up process, because there is an agreed alignment between the pay of those specialists who are employed by the NHS and those who are employed by local authorities.

In speaking to Amendment 339, to which I have put my name, I should declare an interest, in that my daughter is a non-medical public health specialist, although I hasten to add that I have in no way discussed this with her, so she should not be held responsible for the views I am about to express. It is vital that public health specialists are brought within the purview of the Health Professions Council and that there is a separate register for non-medical public health specialists which comes under the purview of that council.

Increasingly, the behavioural aspects of successful public health policies and their implementation are absolutely critical. This is not an area where we should be relying only on personnel with medical or dental qualifications. If we are to have successful public health policies, it is vital that we have people with the kind of background where they can communicate, understand, and do research on the emerging areas of the behavioural sciences. I hope, therefore, that we can have a register which has public standing and is supervised by the Health Professions Council.

Before I sit down I would like to start this session with a mild chastisement of the Minister. I said at Second Reading that I had a benchmark for the Minister’s flexibility in accepting amendments to this Bill. However, he has been uncharacteristically inflexible in responding to many of the noble Lords’ concerns in their amendments. Of course, he has always been very polite; but we have not seen much evidence of the Government being willing to take away some of these issues and come back with amendments at a later stage. I would say to him that this set of amendments gives him a good chance to turn over a new leaf. They do not affect the Government’s policies in this Bill. However, they strengthen the ability of the Government to deliver those policies in the way that they have strengthened the arrangements around the appointment, the pay and the safeguarding of the independence of the directors of public health. I do hope, therefore, that we will see a different type of Earl Howe appearing in relation to these particular amendments.

[Lord Marks of Henley-on-Thames]

I, too, support this suite of amendments. I shall speak only briefly, not in favour of a reinvigorated Earl Howe but in support of Amendments 234 and 234A, which are to the same effect and concern the termination of the appointment of directors of public health.

The Bill provides for joint appointment of the directors of public health, by the local authority and the Secretary of State, and it is right that it does so. I entirely agree with the noble Lord, Lord Patel, that it is therefore essential that the Secretary of State should also have a crucial vetoing part to play in the termination of such an appointment. It is not only that it is logical and sensible that he should do so. It is also that it is more important upon termination that the Secretary of State has that power of intervention. It is important because the director of public health has to have a sense of independence and security. As my noble friend Lady Cumberlege and the noble Lord, Lord Warner, have pointed out, there is considerable potential for disagreement between the local authority and the director of public health. It is therefore crucial that, in the event of friction, the director of public health can act with confidence to disagree.

This is exactly the kind of decision in which it is the Secretary of State, having ultimate responsibility for the health service, who should have that role. The Secretary of State’s role is therefore the best guarantee of the independence and the freedom of action that directors of public health ought to have.

[Baroness Finlay of Llandaff]

My Lords, my name is to Amendment 339. The other amendments have been spoken to most eloquently, having been introduced fully by my noble friend Lord Patel. One additional point, and the reason for having these directors of public health on a register, is that the person appointed may be fit to do the job today but they need to be fit to do the job tomorrow as well. By having them on a register, issues of revalidation, continuing professional development and so on would be maintained, and a level playing field would be maintained in an upward direction.

We have heard today about infection, but the greatest threat to public health may well come not from infection but from issues such as cyberterrorism around our major utilities and the havoc that that could cause. These directors of public health will have an enormous amount on their shoulders, and they need to be linked into the national and international disaster planning groups. Some of those aspects of their work will be ill understood by those in local authorities, who may feel that such things are remote and unlikely to happen. In the event of a disaster, those skills will have to be drawn on immediately, and the directors of public health have to be prepared and able to take the leadership role.

I urge the Government to consider carefully any good reason why not to register directors of public health. I cannot see any reason not to register these people who are trained specialists. You have to have a really good reason not to, in the face of all the evidence that they should be registered.

[Lord Beecham]

My Lords, there is clearly a broad and deep consensus in the House that the general direction of the Government’s proposals for public health is on the right lines. We welcome in particular the restoration to local government of many public health functions.

There are still some areas of potential difficulty, though, which may well account for the recently published survey of the Faculty of Public Health, which showed great concern among 1,000 members of the profession who responded to a survey. Some 71 per cent of them disagreed that the new system would create a safer and more effective response to emergencies, and we will be looking at the situation regarding emergencies in a subsequent group. Eighty-one per cent disagreed with the proposition that the proposals would reduce inequalities in access to health; 83 per cent disagreed that the new structures would reduce bureaucracy; and 79 per cent feared that they would lead to fragmentation. I do not necessarily concur with those views—I think they are too pessimistic—but they disclose a degree of concern that some of the amendments that we are now discussing would allay.

Underpinning some of those concerns is the issue that is not part of the Bill: funding. We cannot ignore the real concerns about that—they have been voiced before and no doubt they will be again as we continue to debate the Bill—but in particular there is concern that, whereas the department apparently estimates the cost of public health services at £4 billion, which presumably is to be used as the basis for ring-fencing the grant that would go to local government, the BMA’s estimate is £5 billion. If that is right, it is a significant difference that would impact on local authorities. Of course, we are awaiting next year’s revenue support grant settlement. In addition, there are concerns about how the health premium would operate and how it might disadvantage areas that suffer from significant social and economic disadvantage. They would find it harder to improve the health of their communities than other, better placed authorities and might, therefore, lose out. In looking at the Bill, particularly the provisions that relate to public health, these concerns must be borne in mind.

Having said that, it is clear that many of the amendments that have been spoken to this afternoon address very serious issues. While I do not necessarily accept the entire burden of the criticisms made by the members of the Faculty of Public Health, I am sure Ministers in this House would not describe those with such concerns in the terms that Simon Burns used in another place when he described critics of the Bill as “zombies”. They are not zombies; they are dedicated public health professionals whose concerns have to be addressed. I am sure that the noble Earl and the noble Baroness would not descend to language of that kind.

The amendments that have been moved and spoken to by the noble Lord, Lord Patel, and supported by Members across the Committee, deal in particular with the position of directors within local government. They begin with the question of how they should be appointed in the first place. On appointments, Clause 27 refers to an authority,

“acting jointly with the Secretary of State”.

This is a slightly curious formulation. I suppose it should not be detached from the later provisions about Public Health England. In the words of Mr Burstow, the Minister of State for Health, Public Health England is deemed to be the Secretary of State. For the purposes of this clause, it may be that that is what is envisaged: Public Health England, as the Secretary of State, would be involved jointly in the appointment.

I am not convinced that it is necessary for an appointment to be made jointly but I concur with the view of the noble Lord, Lord Patel, that a procedure is needed for the approval of the Secretary of State of such appointments, and for the approval of any dismissal. I may be risking my status as an honorary vice- president of the Local Government Association when I dissent from its views on these matters. It takes the view that a director of public health should be treated in exactly the same way as any other chief officer of an authority. Respectfully, I disagree profoundly with that; they are not in an analogous position. Their position is much more analogous to that of a head of paid service, the chief finance officer or the monitoring officer, who have separate roles because they are not simply departmental officers; they have a wider responsibility, which impinges on the roles of other officers and other departments. A director of adult services or a planning officer does not have the same relationship with his colleagues. He is on level terms, as it were, and would not necessarily be expected to take the kind of stance that a director of public health might have to take in relation to failures of other parts of the authority. It is therefore essential that the position and independence of the director are protected. Therefore, I strongly support amendments to that effect.

What I am not clear about is how the appointment should be couched in terms of responsibility. Certainly, I agree with Amendment 229, which suggests that the director should be able to report directly to the local authority. However, to say that the director should be responsible to the chief executive is too narrow a definition. Not all authorities may choose to have chief executives. Fortunately, under the Localism Act, we have been spared the notion that the position of chief executive could be combined with that of the leader of a council or an elected mayor. Councils are not required to have a chief executive; they are required to have a head of paid service. The appropriate mechanism is that promoted by Amendment 229. That should be the line of accountability and the directors should certainly be part of the authority’s management team. They should have the status of a chief officer and the ability, if necessary, to report to the council. They ought also to be qualified.

The Opposition endorse entirely the proposals for a statutory registration system along the lines to which noble Lords have referred, not a voluntary system which I think is envisaged by the Bill. The statutory system should have external quality control, particularly of non-medical public health professionals. This would certainly strengthen the position and maintain the quality of the service. The noble Lord, Lord Warner, referred to comparable status with NHS professionals and made a significant point in that respect. This could, of course, place directors on a higher salary level than other officers within a local authority. That might create some difficulties and might also be something of a new burden. I think that that is the phrase we use in local government. Therefore, it perhaps ought to be reflected in the way that grant is distributed. Perhaps the Minister will undertake to have a look at this. Perhaps some portion of the salary should be specifically contributed to by the department in making its allocations. This would facilitate an acceptance of a differential within local government. However, Amendment 259 talks about making terms and conditions,

“no less favourable than those of persons in equivalent employment in the National Health Service”.

I am bound to say that I am not entirely clear how to define that equivalence. That may need to be explored further. No doubt the Minister will want to look at that aspect.

I think that the noble Baroness, Lady Finlay, referred to what might be described as public health emergency situations. One of the difficulties to which we will have to return in the next group of amendments is the absence of a fully fledged regional structure under the new system. As I say, we will no doubt return to this. However, there is concern about resilience and about how matters that transcend local authority boundaries—and public health problems do transcend local authority boundaries in many instances—will be managed and how these can be addressed, in particular under the proposals around the Health Protection Agency and the current local pattern of provision. I agree strongly with the noble Lord, Lord Walton, about the desirability of the director of public health being a member of the commissioning groups and, indeed, of the national Commissioning Board. We have discussed this before. The noble Earl, Lord Howe, indicated that the boards should be relatively small. However, there seemed to be a possibility of ensuring that if a director was not a member of the board, one could at least be appointed as an adviser to the board and, presumably, if it is the national Commissioning Board, also to the clinical commissioning group at local level. That would certainly be helpful.

However, there remains the issue of the position of directors in relation to district councils. As other noble Lords have pointed out, the responsibilities relating to public health are not confined to principal authorities at county, metropolitan district or London borough levels. There are housing issues and other significant issues around food safety and the rest which are district council responsibilities. It is not clear how directors of public health would operate in two-tier areas where district councils have those responsibilities. A mechanism might have to be developed to ensure that directors are able, for example, to report directly to those authorities where the exercise of the district council responsibilities may not be sufficiently addressed to public health issues. I am not inviting the Minister to give a definite indication at this moment but I would hope that this matter can be taken away and looked at further.

It is clear that there is considerable consensus around the House on the direction of government policy and the need to make improvements along the lines of these amendments. The noble Lord, Lord Warner, invited the Minister to turn over a new leaf and asked for a different type of Earl Howe. For my part, I would be quite happy to settle for the noble Earl, Lord Howe, that we know and love from previous incarnations. I just hope that he is given scope by the Secretary of State to respond positively to this positive debate and to the positive suggestions that have emerged.

16:00

[Baroness Northover]

My Lords, I think that, one way or another, I am going to disappoint: I am going to disappoint the noble Lord, Lord Beecham, that the response is not coming from my noble friend Lord Howe, whom he is so fond of, or—

[Lord Beecham]

I am quite prepared to be made fond of the noble Baroness.

[Baroness Northover]

I am absolutely delighted.

In answer to the noble Lord, Lord Warner, it may be that the version of my noble friend Lord Howe that he is seeing now is slightly different from the one that he usually sees, but I am surprised at his comment about my noble friend having made little movement. The noble Lord will know—

[Lord Warner]

I thank the noble Baroness for giving way. I encourage her to reflect on what she might experience in terms of surprise on Report if we do not see a little more flexibility.

[Baroness Northover]

As a former Minister, the noble Lord, Lord Warner, will be familiar with how—much more familiar than I was when I came into this position—change is discussed and then moves forward. I can assure him that the Government are very much listening and discussing the issues that have come up in your Lordships’ House. As he will know well, it is usually in Committee that noble Lords probe issues and flag up concerns, and usually on Report that shifts occur. I hope that the noble Lord understands that we are indeed listening. Perhaps noble Lords will bear in mind the fact that there has already been much discussion of issues such as ministerial accountability, education and training, research, HealthWatch England and patient involvement, among other issues. Public health is undoubtedly one such issue. I can assure him that that is the case. As the Bill moves along there will undoubtedly be open discussion. I have certainly seen that from the inside.

As noble Lords will know, we previously discussed the high-level provisions relating to the public health powers and duties of local authorities and those of the Secretary of State. We are now focusing on the process of local engagement whereby health improvement responsibilities will return to local authorities. When discussing Clauses 8 and 9 I briefly referred to the role of the director of public health, but I should like to take this opportunity to highlight the importance that the Government attach to the role of director of public health and local government within the new system.

The director of public health will be ideally placed to embed public health across the work of the local authority, acting corporately but exercising the appropriate professional autonomy where necessary, to advocate for the health of the local population. As the noble Lord, Lord Patel, put it, he or she indeed needs to be the strategic leader on public health in the local authority. Other noble Lords echoed that view. We understand that there are a number of concerns about the status of the director of public health but I hope that I can reassure noble Lords on the points they have raised. We are indeed seeking the kind of status that they referred to.

Amendments 228, 229, 232, 233 and 233A relate to the status of the director of public health. As my noble friend Lady Cumberlege noted, given the importance of their leadership position, we would expect a director of public health to be of chief officer status with direct accountability to the chief executive. We hear what noble Lords say about the importance of that.

We have progressed this important issue—the noble Baroness, Lady Cumberlege, wanted an update—and we expect to make a formal announcement in the new year about how we will ensure the senior status of the directors of public health. We are committed to addressing that further. I hope that noble Lords will be reassured by what I have said.

Amendments 229, 231, 233 and 233A relate in particular to the qualifications and experience of the director of public health. The director of public health will be jointly appointed by the Secretary of State, who will be able to ensure that only appropriately qualified individuals are appointed. The fact that the Secretary of State, in the shape of Public Health England, will play an active part in directors’ appointments will help to bind the system together and help to ensure consistency of approach to the role without infringing unduly on local authorities’ independence.

In the National Health Service, some standardisation is imposed by the NHS (Appointment of Consultants) Regulations. The joint appointments process for directors of public health would allow the Secretary of State and local authorities to agree similar standards for local government.

Amendment 225 would require the Secretary of State to agree the appointment. I can reassure the Lord, Lord Patel, that the joint appointment process would already involve the agreement and active participation of the Secretary of State. The local authority and the Secretary of State could not properly imply with their duties and conduct a fair appointment process unless the individual chosen was suitably qualified with appropriate professional expertise. The joint appointment gives the Secretary of State more involvement in the Bill as it stands than under the amendment, which would limit his role to approval.

Amendments 234 and 234A would require the local authority to obtain the agreement of the Secretary of State before dismissing a director of public health. Under new Section 27(2) of the 2006 Act, the director of public health is an employee of the local authority, although any local authority wishing to dismiss its director of public health would have to consult the Secretary of State. Directors of public health will also have the full protection of employment law. Given that their employment relationship is with the local authority, we believe that this provides an appropriate level of protection.

I thank the noble Lord, Lord Patel, for Amendment 236. The amendment would allow the Secretary of State to issue guidance to which local authorities must have regard in relation to the appointment and termination of the director of public health. My noble friend Lord Howe and I will commit to considering this further.

Amendment 339 inserts a new clause which would require the Health Professions Council to establish a register for currently unregulated public health specialists. This links to Amendments 229 and 230, which would require that all directors of public health are on a register. I share the desire to assure the quality of all public health specialists in a way that is robust and effective.

The consultation on Healthy Lives, Healthy People and the NHS Future Forum identified a number of options for assuring the decision-making of public health specialists, including assured voluntary registration and compulsory statutory regulation, and we have sought further evidence from the public health profession to demonstrate whether compulsory statutory regulation is needed. We want to assess this evidence carefully before making final proposals. I assure noble Lords that we are listening.

I also reassure noble Lords that if compulsory statutory regulation of all public health specialists is introduced, we would seek to ensure that the bodies responsible for regulation would be subject to oversight by the Council for Healthcare Regulatory Excellence, which is renamed the Professional Standards Authority for Health and Social Care in the Bill.

Amendment 259 would place in the Bill requirements in relation to the terms and conditions of public health staff working in Public Health England and local authorities. I reassure the noble Lord, Lord Patel, that employees who are compulsorily transferring with their current work function from the NHS to a local authority or Public Health England will—by virtue of either the Transfer of Undertakings (Protection of Employment) Regulations, TUPE, or a statutory transfer scheme under Clause 294, where the Cabinet Office statement of practice on staff transfers in the public sector, COSOP, applies—have their pay, terms and conditions protected.

The Government are currently working with stakeholders to develop a public health workforce strategy, and a formal consultation will be published in due course. We are now beginning the detailed work of developing a new set of terms and conditions for Public Health England and we have started work with trade union colleagues to negotiate a package on that.

The noble Lord, Lord Walton, asked about health inequalities. This is an issue that we covered when we talked previously about public health. I reiterate that we intend to encourage local authorities, through the conditions that we attach to their new funding, to consider the need to reduce inequalities when they discharge their public health functions. The noble Lord also asked whether the CCGs and the board will have duties to obtain appropriate advice. Again, this is an issue that has come up before. They will explicitly need to do that. He also asked whether they should be on these boards. We intend to require local authorities to have a core offer of public health advice to the NHS and we will publish more information about that shortly.

Coming back to the question of local authority terms and conditions of transfer, work is currently under way on a concordat, which will provide principles and standards relating to the transfer, selection and appointment processes affecting public health staff moving to local authorities. This is expected to be published shortly.

Various noble Lords made reference to emergencies. As the noble Lord, Lord Beecham, said, we will be talking about that when we come to a later group of amendments, so perhaps we can postpone consideration of that subject until then, when I can answer any questions that have come up.

In conclusion, I commend noble Lords for their great expertise in this area—expertise in public health and right across the domain, and also, as the noble Lord, Lord Beecham, showed, in local government. It is very important that this is put together effectively. Many have welcomed the move of public health to local authorities, and this should, as noble Lords have previously noted, present many very useful opportunities to put public health centre stage. We hear the concerns that noble Lords have flagged up as these changes take effect but I hope that they will note that we are taking back many of the issues for consideration. I see scepticism on the face of the noble Baroness, Lady Thornton, but I hope that noble Lords will have listened to what I have said in the key areas that they have flagged up. On that basis, I hope that the noble Lord will be prepared to withdraw his amendment and that noble Lords will continue their constructive engagement with the department in this area.

[Lord Warner]

Can the noble Baroness write to us about central government approval of people who are employees of the local authority? There are three areas where I should certainly like to be a lot clearer. The first is what the position with medical officers for health was in the past. My memory is that they were approved by the then Health Secretary. The second is the position of directors of social services. In the past, as I recall, they used to be approved by central government and were employees of the local authority. The third is the current position of chief constables. As I recall, they certainly had to be approved by the Home Secretary and I think may technically—although I am not sure—be employees of the local authority. It would help us to understand the Government’s position on this if we could have more clarity—certainly on those three examples.

16:15

[Baroness Northover]

I am more than happy to write to the noble Lord about those areas.

[Lord Beecham]

Perhaps the Minister, if not today then subsequently, could address her mind to the significant issue that I raised about the positions of directors of public health and district councils. Her assumption, which is fair enough at the present stage of the Bill, is that to all intents and purposes Public Health England and the Secretary of State are one. It is a political version of the theological concept of consubstantiation. I understand that, but that assumes that Amendment 260, which calls for Public Health England to be a special health authority, will not be approved. If it were approved, what would the Government’s position be on the question of joint appointments and consents that under the Bill at the moment would lie in the hands of the Secretary of State? At that point, Public Health England would not be the special health authority. I am not asking for an immediate answer, but if the amendment were to be approved—and I certainly hope it will be approved in due course—would it be Public Health England in those circumstances or would it be the separate Secretary of State’s role to adjudicate on those matters?

[Baroness Cumberlege]

I thought we were going to debate Amendment 260 later today and I would like to take part in that debate when we come to it in the groupings.

[Baroness Northover]

I thank noble Lords for being so willing to receive letters about the areas that they are concerned about. I found myself retrieving what I learnt in my history degree, and I suppose this then becomes the Reformation. I will ensure that we write to noble Lords about these areas.

[Lord Patel]

I thank the Minister for her detailed answer. I know that this is a complicated group of amendments, each one referring to different aspects of public health. As I said in my opening remarks, it is extremely important that we realise that if we want a strong, reliable, effective, qualified, properly trained and accountable public health workforce, we need to address their accountability, employment status, registration and regulation. I did not put these amendments down lightly. They in no way seek to change the policy or structures of the Bill; they merely seek to strengthen the role of public health directors and public health consultants.

I do not know whether the noble Baroness passed the Warner test, but I listened carefully and I know she said a couple of times that the Government were looking at it and will produce a plan in early January. We will look at that carefully and carefully read what she said. I am very willing to engage with her because the public health faculty out there has great concerns. It is not concerned because it wants to be difficult; it is concerned that it will be asked to deliver something while its hands are tied behind its back. It would much rather come out into the open, to be told its status and to have that status put into the Bill so that it can begin to do the work that it is being asked to do. On that basis, I beg leave to withdraw the amendment.

Amendment 225 withdrawn.

Amendment 225A had been withdrawn from the Marshalled List.

Amendment 226 not moved.

Amendment 227

Moved by

[Lord Patel]

227: Clause 27, page 56, line 4, at end insert—
“( ) the exercise of the authority’s functions in relation to the control of any outbreak of disease or other public health emergency”

[Lord Patel]

In this group of amendments, Amendments 227 and 235 are particularly concerned with accountability in handling emergencies. It is essential that there is clarity about who, within the radius of local agencies involved, has the lead responsibility for managing the response in an emergency or an outbreak. I do not think the Bill makes that quite clear. There is a lot of ambiguity about it in the Bill, and my amendments merely seek clarification and to require it to be put into the Bill so that everybody is clear about who leads on it.

It is important to establish that at the local level this responsibility lies with the local authority and, on its behalf, with the director of public health. The director must have the experience, expertise and qualifications to make decisions about outbreaks and other health emergencies affecting the area. As we know, wrong decisions in the early stages of an outbreak—for example, failing to appreciate the seriousness of the situation, taking inadequate control measures or offering inappropriate advice—can quickly lead to a public health catastrophe. I will not go into the details of the E. coli outbreak, but it would be quite interesting to follow it. The Chinese pretty rapidly finally sequenced the E. coli that was affecting countries in Europe this summer, and that is a good case in point as to who takes the lead.

The Bill is unclear about the lines of responsibility or accountability for ensuring co-ordinated action. This lack of clarity about who is operationally responsible at the local level for ensuring that an effective response is put into place will result in delay and confusion. As the Bill currently stands, there is a great risk that emergencies, outbreaks and epidemic situations—for instance, the flu epidemic or recent outbreaks of E. coli— will not be properly managed or responded to and may quickly escalate and harm the health of the population.

The amendment makes it clear that the local authority will be required through regulations to ensure not only that plans are in place for responding to outbreaks or emergency situations but that an appropriate and effective response is made. Of course the local authority will not normally deliver the response itself; it will normally be provided by Public Health England, supported by the NHS and others in the local community, but the local authority will be responsible for ensuring that an effective, appropriate, integrated response is delivered. It will also then be able to hold Public Health England to account for the local services that it provides.

I inquired whether there had been any discussions between public health directors and Public Heath England about this, and I am encouraged that they met recently and that the relationship between the directors of public health and public health units—because Public Health England will have regional units—will be built on the fundamental assumption that the two arms of the public health system, the local authority through the director of public health and Public Health England, must work together and support each other to deliver an integrated service and to ensure that the population is effectively protected using all appropriate resources locally and nationally. Neither of them will duplicate the other’s functions.

There are four complementary principles that will define the working relationships. The local authority and the director on its behalf must be, and must be seen to be, responsible for the health of the local population. This will ensure that all aspects of public health are delivered in a locally coherent way. Under the Bill, the Secretary of State has a duty to protect the health of the population, which he or she will discharge through Public Health England. This will ensure a clear line of sight to the front line and the integration and consistency of health protection services across the country from national to local.

A principle of subsidiarity needs to be put in place, which is that the responsibility for health protection will be kept as close to local communities as possible. Public Health England will employ in local units the specialist expertise that it would not be cost-effective to replicate in every local authority. For instance, the Health Protection Agency currently has 25 units across England and national centres. The local authority through the director of public health will provide leadership for the public health system locally and must be responsible for ensuring that the system is prepared and delivers an effective health protection service.

I understand that more detailed work will define the range and scope of the core services that Public Health England will provide to the local authority. I know that we will come to a discussion about public health, and I do not wish to engage in discussion about Public Health England or my Amendment 260 at this stage. I merely refer to this in relation to the local authority’s responsibility for dealing with emergencies. I beg to move.

[Baroness Williams of Crosby]

My Lords, I have a number of amendments in this group as well, in particular Amendments 238, 237B, 237C and 237D. It is, as always, a pleasure for me to follow the elegant moving by the noble Lord, Lord Patel, who speaks from the Cross Benches. He spoke in a very restrained way about the need to try to create a co-ordinated response to any emergency. I would like to pursue this a little further in my own amendments.

The first of the amendments that we put down supplements the proposal of the noble Lord, Lord Patel, that local authorities and the CCGs should,

“have regard to any document published by the Secretary of State”.

On thinking about that, I assumed that any responsible clinical commissioning group certainly would have regard to a document from the Secretary of State. I thought that, in the event of an emergency, especially where a co-ordinated response among the CCGs was required in the way suggested by the noble Lord, Lord Patel, we would need a little more than simply to have regard to a document produced by the Department of Health. So, along with my colleague the noble Lord, Lord Marks, I put down Amendment 238, which requires rather more, as it requires consultation with the Secretary of State.

On further consideration, looking very closely at Clause 43, we were not sure that even that was quite enough. Clause 43 deals not just with local emergencies but with emergencies wherever they may come from. I must say to noble Lords that I am inclined to agree with the noble Lords, Lord Newton of Braintree and Lord Mawhinney, who in a debate last week specifically said that they felt that, in the event of an emergency, it would be very difficult indeed for the Secretary of State not to be brought into the response, notably if a co-ordinated response was required perhaps at regional or even at national level. When we thought about recent emergencies of this kind—for example, the danger of swine flu in the United States some 10 years ago and, more recently, the danger of avian flu, which was moving very rapidly through Asia, with outbreaks of avian flu being established within days in areas which had not at first been affected by it—it seemed more and more clear that it was impossible for the Secretary of State to divorce himself from responsibility for emergencies. As the noble Lord, Lord Newton of Braintree, put it, the public will expect nothing less.

So we found ourselves back with our old friend in this Bill, namely the relationship of the Secretary of State with what are, in the NHS Acts of 2006 and 2009, direct responsibilities that rest eventually in Westminster and Whitehall, and specifically with the man or woman who is the Cabinet Secretary responsible for health. With the best will in the world, I cannot see how the Secretary of State can effectively remove himself from those responsibilities. I am therefore very worried about the early parts of Clause 43. In this Bill, there is a specific reference removing the Secretary of State from the title of new Section 252A of the NHS Act 2006 inserted by Clause 43. The new cross-heading refers directly to him, but the section heading immediately following removes him, leaving reference to the board and the CCGs. Noble Lords who look at Clause 43 will see exactly what I mean: the preliminary lines are followed by a different heading, in which the phrase “Secretary of State” is simply removed from the heading, leaving only,

“Role of the Board and clinical commissioning groups”.

Constitutionally I consider this to be very unhelpful. It is quite central, above all in an emergency where that emergency is not a minor one but a major or national one, for the Secretary of State not to be able to step away from responsibility. I do not mean ultimate responsibility when there is a failure by the Clinical Commissioning Board or, for that matter, by Monitor, but at the point at which the emergency breaks out.

16:30

I plead with my noble friend Lord Howe, and beyond him to the Secretary of State, to reconsider whether it is wise to remove the Secretary of State from what one might call the front line of response to emergency. This really is an area where I think that the public will not expect to see that and would believe that the Minister with responsibility to the Cabinet and to Parliament would want to speak on behalf of the public concern on issues of serious emergencies. This group of amendments of course would once again put the Secretary of State not in micromanagement but in ultimate responsibility for dealing with a co-ordinated response to an emergency. I ask the noble Earl, Lord Howe, to consider whether this is not also something that should be looked at in the light of our broad discussions on what are and what are not the responsibility of the Secretary of State, and once again remind the Committee that we cannot escape from this major thread that runs through the entire Bill. Here is yet another example.

[Lord Beecham]

My Lords, again I have a great deal of sympathy with the amendment moved by the noble Lord, Lord Patel, and the amendments in the name of the noble Baroness, Lady Williams. It seems to me that there is the potential for confusion over the differing roles that arise in situations such as an outbreak of disease or other public emergencies. The Bill variously imposes duties on the director of public health, although not specifically on the local authority, to act in such cases, bearing in mind that the documents are to be issued by the Secretary of State. Quite what documents would be issued in an emergency is not clear.

Amendments 227 and 235 in the name of the noble Lord, Lord Patel, accord better with the situation which might arise. They clearly make the point of local authority involvement and do not simply rely on the provisions of Clauses 43 and 44, which confer duties on the board and clinical commissioning groups. Incidentally, the fact that such duties are imposed on clinical commissioning groups surely enhances the need for the director of public health to be a member of, or to be represented on, such groups. But that is a matter to which we will no doubt return when we come to the governance arrangements for clinical commissioning groups.

Clause 43 makes it the responsibility of the board to ensure that all providers designate an individual to be responsible for the relevant emergency. Again, it is not quite clear what is meant by providers in that context. The board is also required to secure that it and the clinical commissioning groups in the health service—but, specifically, not local authorities—are prepared for emergencies. There seems to be some fragmentation in the distribution of responsibilities for this situation. That matter is also reflected in the general position in relation to resilience and emergencies generally. At the moment, there is a strong regional structure and if there is a problem, the regional director of public health can intervene and can require steps to be taken. There is always the facility for someone to be directed to act in the case of an emergency; as it were, someone will always be on call. It is not clear that that will survive the new structures.

It is essential in these cases also to recognise the important role that the voluntary sector plays in a public emergency. The Red Cross and other organisations of course are very often the first on the scene. I know that the noble Baroness, Lady Emerton, will address this issue when she speaks to her amendment. In advance of her doing so, I want to indicate support for the involvement of that sector as a consultee in the question of appointing directors of public health but, more widely, for the contribution of that sector to be recognised.

This issue of fragmentation of responsibility and the lack of a regional structure, which will follow if the Bill is passed in its present form, is a matter that attracted the attention of the Health Select Committee. That committee’s report indicated that there is a lack of confidence in the structures that would replace the regional structures under the provisions of the Bill:

“We are concerned at the lack of clear plans for Public Health England to be established at the regional level. The idea of “sub-national hubs”, in some—as yet undefined—alignment with the sub-national structures of the NHS Commissioning Board and the Department for Communities and Local Government does not seem to us adequate”.

Public Health England needs clear strategic and regional accountability, and although we are not yet debating Public Health England, nevertheless there is clearly in the mind of that committee—and I share that view—considerable doubt about whether the structure, with perhaps four sub-national hubs and a number of groupings around the Health Protection Agency when it is now combined with and taken into Public Health England, will in fact be sufficient. Although Clause 44 gives the Secretary of State powers of direction, the absence of regional arrangements clearly could, in the minds of that committee, create considerable difficulties. So there are issues which are partly reflected in the concerns of members of the Faculty of Public Health to which I referred in the debate on the previous amendments, and the role of the Health Protection Agency in the new structure will bear materially upon that issue.

I think the amendments tabled by the noble Lord, Lord Patel, actually take us in the right direction. We need a stronger structure to cope with problems of disease, immunisation and particularly emergencies, and again I draw attention to the fact that local authorities that would be involved in emergencies are not necessarily the principal authorities with which a director of public health would be involved. Again I raise the issue of how district councils in shire county areas will be involved in those situations. Without necessarily seeking a response today, I hope that is a matter that the noble Baroness the Minister would take away and consider. I am afraid it is becoming a bit of a recurrent theme, but for that very reason it seems to me that we need to address it properly so that the entirety of the local government family is involved in preparing for and dealing with emergencies as they arise, given in particular that district health authorities have very significant responsibilities in some areas. The noble and learned Lord, Lord Mackay of Clashfern, referred to E. coli, and food safety is the function of district council authorities and clearly part of the agenda which has to be addressed when looking at public health as a whole.

I hope that on this occasion the Minister will be somewhat more sympathetic than she proved to be last time to the amendments that have been tabled by the noble Lord.

[Baroness Northover]

My Lords, we are always sympathetic to all sorts of amendments, and the fact that we take away amendments and consider them further should, I hope, reassure noble Lords—

[Baroness Emerton]

I apologise to the Minister; I was waiting to speak to my Amendment 236ZA. The issue of voluntary sector involvement is important because the changes proposed in the Bill have significant relevance to it and in particular to the voluntary aid societies. The British Red Cross and St John Ambulance provide emergency response and are recognised respondents under the regulations of the Civil Contingencies Act. I declare an interest as a member of St John Ambulance for 66 years.

The history of the status of these two organisations goes back to the Geneva Convention. Because they have a specific responsibility for providing emergency services, there needs to be clarity about the lines of accountability within local authorities. Both organisations are recognised in the humanitarian field and for first aid and for looking after civil or military emergency situations. That is their responsibility. The auxiliary status is enshrined both in the royal charter for the Red Cross and in the Geneva Convention. The Women's Royal Voluntary Service used to be included, but it has withdrawn from voluntary aid society status. Nevertheless, all voluntary organisations are important in that they are present and they will need to know how to be organised under these new arrangements. They want to be assured that they will be commissioned, as they are now under the Civil Contingencies Act. Prior to this Bill, they were commissioned by the PCTs through local authorities and these changes have significance for them in how they will be managed and how the chains of communication will work.

The community-based presence of both organisations means that they are involved in vital emergency responses. They are first-responders and deal with civil emergencies. They hold, for example, a large number of ambulances with four-wheel drive. Indeed, the London Ambulance Service says that it cannot possibly cope in an emergency without the backup of the volunteer ambulances, particularly in bad weather. I speak to this amendment because voluntary organisations need to be involved and need clarification of their communication with local authorities.

[Lord Ribeiro]

My Lords, I seek clarification because the noble Baroness, Lady Emerton, has just referred to a whole series of different emergencies. The noble Baroness, Lady Williams, referred earlier to Clause 43 and the question of emergencies. I am confused about what we mean by emergencies and, under the emergency powers, the relevant types of emergency that we are dealing with.

Clause 43 states that,

“‘a relevant emergency’, in relation to the Board or a clinical commissioning group, means any emergency which might affect the Board or the group”.

We then talk about the emergencies that might occur when there is a national disaster. I take noble Lords’ minds back to the bombings on 7/7 in 2005. That was a major national emergency that was managed by COBRA—an organisation that involves the Prime Minister, the Secretary of State and the Chief Medical Officer. All of them would be involved in that situation. We also referred to the E. coli epidemic earlier on and I take noble Lords back to the Asian flu and swine flu epidemics. The person who fronted that was not the Secretary of State but the Chief Medical Officer. He was the face of that particular epidemic. I think we need some clarification of what we mean by emergencies, because I, for one, am somewhat confused.

16:45

[Baroness Northover]

My Lords, these amendments address the response to emergencies. We agree entirely that dealing quickly, decisively and in a co-ordinated way with sudden threats to public health must be a priority for the new system. We believe that the establishment of the position of director of public health within local authorities will strengthen considerably their capacity to respond to emergencies. However, the overall response will depend on the precise nature of the threat, as my noble friend Lord Ribeiro has indicated, and it is very likely to involve the NHS and other agencies, such as Public Health England, as well as local authorities. Therefore we want to allow for local flexibility in deciding who is best qualified to lead the response to a particular incident. Nevertheless, we must also ensure, when incidents occur, that all the responders are prepared and fully understand the parts that they play. We agree that the duty for local authorities, which we intend to prescribe in regulations, must be strong enough to ensure that the right arrangements are in place, not just a document that describes those arrangements.

We believe that the Bill already provides for the kind of coverage that is required. Clause 27 sets out a number of responsibilities for directors of public health and is already clear that these include the local authorities’ functions in planning for and dealing with public health emergencies. This, we think, fully matches the intention behind Amendment 227.

We agree with the spirit of the noble Lord’s Amendment 235. Clause 15 gives the Secretary of State the power to specify in regulations certain steps that local authorities must take under their new public health duties. The regulations will be subject to the affirmative procedure in Parliament, but I can assure the noble Lord that we expect that the steps the Secretary of State prescribes will include ensuring that robust and agreed local plans are in place for dealing with threats to public health, even if they are not full-blown emergencies.

Amendment 236ZA, tabled by the noble Baroness, Lady Emerton, and other noble Lords, recognises the invaluable role that the voluntary aid societies, such as St John Ambulance, can play in dealing with emergencies. We certainly have no difference with the noble Lords on that, and hope—and expect—that local authorities will involve St John Ambulance and other agencies, such as the British Red Cross, when they ensure that plans are in place for tackling threats to health. We will consider how to address this issue in the regulations that we intend to make. On that basis, I hope the noble Baroness will be willing to withdraw her amendment.

I come now to the amendments in the name of my noble friend Lady Williams of Crosby. My noble friend Earl Howe said that at this point I should simply concede because they were in the Bill anyway, but I will address the substance of her amendments. She seeks to enhance the readiness for emergencies by conferring additional duties on the Secretary of State. I assure noble Lords that the Secretary of State already has the clear duty to protect health not only by virtue of Clauses 8 and 44 but under the Civil Contingencies Act 2004. Both the NHS Commissioning Board and the Secretary of State will be category 1 responders. As such, they will have a duty to assess, plan and respond before and during an emergency. This is made clear in Schedule 7 of the Bill. There might have been a slight misunderstanding over this.

The words at the start of Clause 43 that will replace the current cross-heading preceding Section 253 of the 2006 NHS Act that reads simply “Emergency powers”, are:

“Emergencies: role of the Secretary of State, the Board and clinical commissioning groups”.

New Section 252A then deals with the role of the board and CCGs, and Section 253 deals with the Secretary of State. We are not removing the Secretary of State’s role. The Secretary of State retains his role, exercising his powers as indicated in Section 2 of the 2006 Act and under the Public Health (Control of Disease) Act 1984, as well as his duties under the Civil Contingencies Act 2004. I hope that my noble friend will be reassured in this regard.

Amendment 238, tabled by my noble friend Lord Marks, would require the NHS Commissioning Board to consult a Secretary of State before it takes steps to facilitate a response to an emergency that requires co-operation between different parts of the health system. These are operational decisions that are often taken at a local level where speed is very important. For example, hospital operations in one part of the country may need to be suspended because blood supplies are needed elsewhere. The amendment could inadvertently introduce additional delays into the decision-making process in a response to emergencies.

The clauses as currently written allow the health service to respond to emergencies directly and effectively and give the Secretary of State the power to intervene. We will consider what noble Lords have said but, in the mean time, I hope that they will not press their amendments.

The noble Lord, Lord Ribeiro, asked for a definition of emergency. I am assured that emergency has its ordinary meaning. I will write to him with the full definition rather than take noble Lords’ time. On the basis of what I have said, I hope that the noble Lord will be willing not to press his amendment.

[Baroness Emerton]

I thank the Minister and look forward to seeing the regulations.

[Lord Patel]

My Lords, I thank noble Lords who took part in this debate. As I said in my opening remarks, the amendment seeks to clarify the responsibilities of the local authority in situations that arise as an emergency, either locally or nationally, and within that the role of the public health director. I realise that the Bill says that the Secretary of State, through Public Health England, will be involved, but there is still a lack of clarity in the Bill. Apart from saying that local authorities will produce documents about their preparedness to deal with an emergency, it does not say who will take charge. Further clarification may be required, and the Minister might undertake to look at the amendments again to see whether there is some need to clarify this in the Bill.

[Baroness Williams of Crosby]

I thank the Minister. I will spend many happy hours working my way through every possible legal complexity and a number of different Bills. I am grateful for her explanation.

[Lord Walton of Detchant]

Before the Minister writes to the noble Lord, Lord Ribeiro, with a definition of emergency, could she clarify whether we are talking in this Bill about medical emergencies, such as serious epidemics, or whether we are also talking about terrorist attacks, floods and natural disasters, all of which may require the deployment of medical resources? It is important that that should be clarified.

[Baroness Northover]

My Lords, I will write to noble Lords if it is not that wide a definition, but my assumption is that it is the wider definition that needs to be covered.

As a brief response to the noble Lord, Lord Patel, I can say that much of this will be in regulations. I know that the previous Government had problems when they said that they would put something in regulations. The House would say that it wanted to know while it passed a Bill exactly what it would be, but a distinction needs to be drawn between the kind of things that you want in the Bill, where there needs to be an architecture and structure that gives flexibility, and the kind of precision and more detailed explanation that you have in regulations. The noble Lord will be familiar with that. If we can take anything further and outline what sort of things might be in the regulations, as the previous Government also sought to do, I am sure that we will.

[Lord Patel]

I beg leave to withdraw the amendment.

Amendment 227 withdrawn.

Amendments 228 to 234A not moved.

Clause 28 : Exercise of public health functions of local authorities

Amendments 235 to 236ZA not moved.

Clause 28 agreed.

Clause 29 agreed.

Clause 30 : Abolition of Strategic Health Authorities

Amendment 236A

Moved by

[Lord Hunt of Kings Heath]

236A: Clause 30, page 58, line 11, at end insert—
“(3) This section comes into force on a date to be specified by order by the Secretary of State.
(4) The time specified in subsection (3) must be after such time as the Secretary of State is satisfied that all duties and functions of Strategic Health Authorities are being fulfilled by another body.”

[Lord Hunt of Kings Heath]

My Lords, these amendments are grouped around the structure of the National Health Service and certainly serve to illustrate the turbulence that the Government have brought to the service. Essentially, the Government have torn up the current structure by its roots and are now piecing together a much more complex and potentially bureaucratic edifice. It still remains a complete mystery why the Government did not build on what was there. On day one, they could have ordered primary care trusts to divest themselves of any service provision responsibility, and could certainly have given them a kick up the backside to get a move on with GP commissioning. The noble Earl reminded me last week that the previous Government was keen to encourage GPs to have more involvement there. Instead of that incremental, organic approach, we have seen primary care trusts dismembered, with many experts on commissioning—good people—thrown out of the system at a time when the NHS should be solely focused on the financial and quality challenge it undoubtedly faces.

In its place, listening to the Government's original proposals, one might have expected a rather more streamlined system. Instead, we see a convoluted and rather Heath Robinson-type system, where the capacity for delay and obfuscation seems endless. Of course, the Government’s building blocks are clinical commissioning groups. At first, I believe that the intention was for GPs to sit round in small groups commissioning healthcare for their patients. However, reality has dawned; the GPs are being corralled into much larger clinical commissioning groups, where the necessary demands of corporate governance mean that individual GPs are likely to be very far removed from the actual decisions made on commissioning. Because decisions are to be made in GPs’ names, however, they will be expected to defend those commissioning decisions—at some potential cost, I suggest, to the doctor-patient relationship. It would be interesting to know how many clinical commissioning groups the noble Earl considers are now likely to be created. I do not know whether he is able to confirm that. Could he compare that to the number of primary care trusts which, formally at least, are still in existence?

The new structure does not stop there, as we have health and well-being boards. This side of the Committee has no problem at all with the involvement of local authorities in health service matters and I particularly welcome the leadership role that they are to be given in public health, albeit with the caveats that we have heard during the previous two debates—and, I am sure, will hear in future debates as well. Yet no one should be in any doubt that health and well-being boards bring the potential for delays and lack of clarity, particularly over commissioning decisions.

The Government are also establishing clinical senates. I welcome clinical oversight at a regional level, but there can be no denying that this is another layer in what is emerging as a pretty complex picture. It is also unclear what levers clinical senates will have over clinical commissioning decisions. What happens if they consider that the combined impact of clinical commissioning group decisions might damage the integrity of a regional health system? For instance, there might not be sufficient cover in terms of comprehensive provision, or care networks could be undermined. What can these senates do in such cases?

The health service has lost a lot of its commissioning expertise. It looks as though commissioning groups will have to buy in commissioning support, mainly from the private sector. The Minister will be aware of the BMA’s concerns on that matter. I understand that at the moment PCT clusters are forming commissioning support units and that from 2016 CCGs will be encouraged to commission from those units, which are in turn being encouraged to form social enterprises and partnerships with the private sector. The concern of the BMA is that this undermines the key aim of entrusting GPs to lead on commissioning. It looks increasingly likely that these clinical commissioning groups will have a small core of people concerned with clinical aspects of commissioning and a very large hinterland which deals with transactional and large-scale commissioning decisions.

Of course, there is to be another layer as well. It has become known in our debates that the NHS Commissioning Board is to establish local field offices, as I think they are being called. I am not surprised at that. We know that clinical commissioning groups are not to hold the contracts of GPs, presumably because of the potential for conflict of interest. That means that the national body, the NHS Commissioning Board, will have to get involved in the nitty-gritty of dealing with thousands of GPs, because it will hold the contracts of every GP in England. It will also involve the NHS Commissioning Board in the allocation of patients; where patients cannot find a GP, the current rules ensure that patients are allocated to GPs. That will have to go on in the future. As far as I can see, that too falls to the NHS Commissioning Board.

There is then the performance management of primary medical services, which will not fall to clinical commissioning groups because, again, of potential conflict of interest; that will fall to the NHS Commissioning Board. Sitting in its headquarters in Leeds, it is hardly likely that the board can do without some form of local branch structure. Indeed, with the demise of the SHAs, the uncertainties of clinical senates and the—quite understandable—likely very local focus of many clinical commissioning groups and health and well-being boards, there will be a glaring lack of strategic leadership across a local health economy.

Given the financial challenge which I think all of us in your Lordships’ House accept as being huge, and given the need for a pretty radical reconfiguration of acute services—this came from our debate two weeks ago—there will need to be some kind of strategic leadership at the local level. I suspect that it will be the local field offices of the NHS Commissioning Board which will have to provide that leadership.

However, if that is to be the case, surely those local field offices ought to be accountable in some way to the local community? I have no doubt that the Minister will say that the field offices will be accountable; they will be accountable to the NHS Commissioning Board. I do not want to reopen this, as the noble Baroness, Lady Williams, was putting yet more into the pot of our debates on Clause 1. We have argued for many weeks now about the accountability of the NHS Commissioning Board. However, I am sure that most noble Lords would agree that the Minister has made it clear that the Secretary of State is going to be pretty hands-off as far as the NHS Commissioning Board is concerned. The mandate will reflect the key objectives which the Secretary of State wishes to have delivered by the board. However, my argument is that these field offices are actually going to be hugely influential at local level, rather as the SHAs have been over a number of years. If that is the case, why should they not be proper public statutory bodies, properly accountable for what they do? My Amendment 236A has to be seen alongside Amendment 236AA, where I set out in fairly brief form how a local NHS commissioning board could be established as a statutory body.

If one thinks of the original proposition for the governance and looks at the current architecture, we see a very complex picture in which public accountability is likely to be lessened. We have seen that clinical commissioning groups are already being corralled into large units that may well be very remote from individual GPs and their practices. They are being forced to use the private sector support organisations, which will also be supporting other clinical commissioning groups. Their room for manoeuvre will be hedged in by the health and well-being boards and the clinical senates, and they will be overseen closely by the local branches of the NHS Commissioning Board. To me, that is a pretty incoherent picture. How relevant does the Minister really think that is to the real issues facing the NHS—safety, quality, efficiency and the effective reorganisation and reconfiguration of acute services? No wonder that in a recent briefing the NHS Confederation said:

“Our biggest concern following the … changes”,

which had been made after the NHS Future Forum had reported,

“is the risk of paralysis in commissioners’ decision-making just when the NHS needs to be radical. The proposed NHS structure is much more complex than the present system. This has the potential to cause confusion and duplication”.

Amen to that. I beg to move.

[Lord Rea]

My Lords, I oppose Clause 31 which concerns the abolition of primary care trusts. My noble friend has talked about the strategic health authorities and, although not in detail, about the problem of getting rid of PCTs. This is intended to give the Minister an opportunity to give us some information about the implementation of this rather stark clause. For example, what about the actual handover of responsibility from PCTs to CCGs? Will all staff of PCTs be made redundant, thus giving rise to considerable redundancy costs? How many and which staff will be retained and transferred? Will those transferred continue their employment without interruption or will they have to reapply for their new post, which in fact is likely to involve the same or very similar work because the provider trusts providing the healthcare will be the same under the CCGs as they are now? Perhaps my noble friend Lord Hunt will amplify this. He has already said a considerable amount about the abolition of the strategic health authorities. Although the work of PCTs has been criticised, it has been improving all the time over the past nine years and much valuable experience in commissioning has been gained. It would seem logical to transfer as much of it as possible to avoid the expense of bringing in outside advisers and consultants or to make sure that such expense is minimised as far as possible.

Very relevant to the commissioning role of PCTs is a document that was published by the Department of Health just last month, Developing Commissioning Support. It includes former PCT staff among those who will be given a role in providing this support. There are many people in PCTs who have considerable expertise. The report’s emphasis is on a business model in which outside organisations, including the independent sector, play a major role. Can the noble Earl tell us how this will be monitored and how transparent the contracting and subsequent work of these outside organisations will be? On the whole, how long will their contracts be for, and will it be possible to terminate them when necessary?

Expressing a view very sympathetic to mine is a quotation that I have found from a speech that was made five years ago in your Lordships’ House regarding private sector commissioning. It reads:

“I want to sound a note of warning. I am worried that if that really is the way that we are going, it could represent a very serious wrong turning, not least in the context of the future development of effective practice-based commissioning”.

This was five years ago, when practice-based commissioning was the order of the day. The speech went on:

“One has to question whether the ethos and values of a private sector organisation will make it fit for purpose as a commissioner. PCTs have public service values and they are accountable. Private commissioners are differently motivated and they are not in the same sense accountable to the public. The way in which private companies operate is too often hidden by considerations of commercial confidentiality, and it is questionable whether they will be susceptible to judicial review. If the Government want to go down the road of private sector commissioning, we need, at the very least, an open debate about it and about what it will mean for the NHS and for patients”.—[Official Report, 3/11/06; col. 581.]

That exactly expresses my views. It will be interesting to know what the noble Earl thinks of it because they are his very own words, spoken when he was winding up for the Opposition in November 2006 on an Unstarred Question that I asked about the role of the private sector in the National Health Service.

17:15

[Lord Mawhinney]

My Lords, last Wednesday we spent some considerable time talking about the merits of clustering. I start by making it clear that Amendment 256A, which is in my name and that of my noble friend Lord Newton of Braintree, is not about the merits of clustering. It does not reopen the debate that we had last Wednesday. It is about the instigation and management of clusters.

I make one further preliminary point: I have learnt from my 30-plus years in this building that Governments are always happier when they are talking about issues in the abstract. When they are confronted by issues in the specific, life gets more difficult. I see former Ministers smiling and nodding in agreement. I wish to talk about the specific. I want to talk about Cambridgeshire and, in particular, Peterborough. If that seems strange, I am Lord Mawhinney of Peterborough and I have the signal honour, as a former Member of Parliament, of being a freeman of the city. I think that my commitment to the area is well established.

I start with the words that my noble friend Lord Howe used in summing up last Wednesday. He said:

“My noble friend Lord Newton spoke about the clustering of PCTs. Clusters bring together PCTs to prepare for and support the transition to clinical commissioning. Until PCT abolition in April 2013, they continue to exercise their functions and remain statutorily responsible for their functions until abolition”.—[Official Report, 30/11/11; col. 302.]

Although clusters do not appear in the Bill at all, it seems to me perfectly legitimate to speak about them and table amendments on them given what my noble friend has said. The House officials tell me that an amendment at this stage is the only legitimate way to introduce a debate about clusters. PCTs are statutory, no debate; clusters are not, no debate, yet in practice PCTs have been removed, abolished, taken down, or whatever phraseology noble Lords wish to use, to be replaced by clustering. This is made easier by the fact that non-executive directors of PCTs are not employees.

When I learnt that the Peterborough PCT was to be abolished—as it was put to me—I took the advice of my noble friend Lord Howe and went to that bit of the statutory system which determines what happens in Peterborough, and I had an hour-and-a-half coffee break with Sir Neil McKay, the chief executive of the East of England SHA. I very much appreciate the information that he gave me although I could have done without the patronising tone. I put to him that it would be helpful if he could explain to me how the SHA had allowed the PCT to run up debts of £20 million. He said that he had no idea about that, he was not much minded to find out and nobody would take any responsibility. I asked Sir Neil whether he could explain to me how the hospital—it is a PFI hospital—had debts in too many tens of millions of pounds, over half of which were structural to the PFI. He said that they were not very enthusiastic about the PFI but they did not do anything to stop it. I inquired why the SHA, through the PCT, was trying to reduce funding to the hospital given its dire circumstances, but he declined to answer. I asked him why, as of a few weeks ago, the PCT had no contract with the hospital for this financial year and why it had no contract with the local authority, because Peterborough has integrated primary care and social services, but he had no answer. Indeed, he made some accusations in my hearing about officials at the city council which I have kept to myself because to have aired them would have made a bad situation even worse.

I therefore hope that my noble friend will understand that when we are encouraged to talk to the administrative and technocratic arm of the NHS, I for one am underwhelmed. None of this comes as a surprise to my noble friend because he very generously—I say that with deep sincerity—gave me and my noble friend Lord Newton of Braintree an hour of his time to discuss these very issues. I put to him again the fact that the Peterborough PCT and the Cambridge PCT have disappeared and there is a cluster. The facade is that the PCTs are still the legal entities and they exist. I will not comment about Cambridge, but I will comment about Peterborough. The chairman and all the non-executives have gone because they received letters asking, “Would you like to apply to be on the cluster? By the way, there are six of you but only three slots, so three of you will go—one of the two chairmen, and three from Cambridge. If you would like to apply, here is an application form. Please complete it and send it in together with a letter of resignation from the PCT”. I do not know how that went down in other parts of the country but I can tell my noble friend that it did not go down well in Peterborough.

We have a situation where a cluster allegedly makes decisions but does not have any legal authority to do so. In Peterborough’s case, the cluster refers such decisions to a PCT that statutorily exists but in practice does not. I have to say to my noble friend that I took careful note of his chastisement last week of our mutual and noble friend Lord Newton of Braintree for using extravagant language. I have pulled back, because I was going to tell your Lordships what I thought about this arrangement but I am unwilling to be chastised for extravagant language.

What has happened is that public servants who worked for primary care trusts were intimidated and bullied into getting out of the way so that a system which does not have a legal basis could proceed. In case noble Lords think that I am exaggerating, perhaps I may read to them a Parliamentary Question that I tabled a little time ago. I asked,

“whether a strategic health authority director has any legal powers to prevent a serving primary care trust board member who refuses a request to resign from the primary care trust from being offered any further public appointments during the next two years; and, if so,”

what those powers are. My noble friend replied:

“Strategic health authority (SHA) directors have no powers to prevent a serving primary care trust (PCT) non-executive director from being offered any further public appointments during the next two years. However, the Secretary of State has powers under the PCT (Membership, Procedure and Administrative Arrangements) Regulations 2000, which he has delegated to the Appointments Commission, to remove a non-executive from a PCT if the commission is of the opinion that the non-executive's continued appointment”—

notwithstanding their contract—

“is: not conducive to the good management of a PCT; or not in the interests of the health service. If the commission decides to exercise these powers then the non-executive concerned would be disqualified for appointment to a non-executive role in a PCT … or any National Health Service trust … for a period of two years or such period as may be specified by the commission when terminating the appointment”.—[Official Report, 27/10/11; cols. WA 185-86.]

It is no wonder that good upstanding community people feel intimidated and bullied into giving up the service that they have been making, because they are being threatened with two years’ exclusion by the NHS, acting on behalf of the Secretary of State.

Last Friday, to my surprise, I opened a letter that had been sent earlier in the week, which stated:

“In conversation with Earl Howe I understand you have raised some concerns in Peterborough with regard to the management of clustering PCTs”.

The sender would have known that not only from his conversations with my noble friend but from my conversation with his East of England chief executive.

“I would welcome the opportunity to arrange a meeting with you to discuss your concerns”,

signed Sir David Nicholson.

I have been in public service for more than 30 years and the only people I have ever refused to talk to have been the IRA, who were killing people; otherwise, I will talk to anybody. I will write back to Sir David telling him that I saw the letter only on Friday and that I am happy to meet him, although I am not sure exactly what will be achieved. However, I have been to the Minister and am now being offered the opportunity to talk to the chief technocrat. There are other democracies where the democratic practitioners are so weak that technocrats have to come in to do the job, but this is not one of those countries. I see my noble friend laughing but I say very gently that this ought not to be one of those countries.

This issue goes to the heart of the concerns that a number of us have relayed on a few occasions. I apologise to the Committee for taking so long but I needed to set the scene because this is the only debate that there has been on the setting up and management of clusters. I very much hope that my noble friend will take away these thoughts and continue to give them further consideration. In front of all the Members of this Committee I pay tribute to him by saying that when earlier he said to me and to my noble friend that he would give these matters consideration, I believed him. This is but an encouragement to him to take the issues at hand seriously and to produce a better and more defensible system, and one that is less liable to judicial review than the one that we have at the moment.

So far as concerns the rest of this group, I hope that the opposition Front Bench will not press to a Division their opposition to clauses, because I think that there is still a lot to be resolved in this area before we start casting votes. They know my views on Clause 31. I fear that Clause 30 may be heading in a similar direction. However, now is not the time to divide the Committee; now is the time for the Committee to encourage the Minister to take seriously the concerns being expressed.

[Baroness Finlay of Llandaff]

My Lords, I have one amendment in this group and have added my name in opposition to Clause 31 standing part of the Bill. At face value, these are very different but they are grouped because of the radical changes that are occurring.

In relation to Clause 31, I want to address where clinical commissioning groups are different from PCTs and what might be lost in the process, and that is why I have put my name to opposing the clause. These organisations appear to be emerging with a hybrid responsibility. On 2 November, in response to a question about whether clinical commissioning groups are just like PCTs and asked for a yes or no answer, the Minister replied:

“In terms of population responsibility, the responsibilities are very similar. CCGs are responsible for patients on the registered lists of their constituent practices as well as having specific area-based responsibilities … linked to their unique geographic coverage”.

Of course, the difficulty here is that clinical commissioning group areas are indeterminate and their responsibilities are not comprehensive, whereas at the moment PCTs, however much they appear to be failing, as they are in some areas, have in statute a range of clear responsibilities.

Clinical commissioning groups will not be formed on the basis of responsibility for all residents within a contiguous geographical area. As was pointed out on 2 November, it will be possible,

“for individuals within that area to be registered with a GP practice which is a member of a different CCG. It would therefore be the responsibility of that other CCG”.—[Official Report, 2/11/11; cols. 1270-71.]

We have debated the problem for people with difficult conditions. I know that the clinical commissioning groups’ responsibilities will be for emergency care for people within their area; that seems to be one of their limits, but they do not go much further than that. David Nicholson confirmed the Government’s position when he spoke on the “Today” programme on 31 October. He said:

“We will publish information about general practices so you will be able to see what your general practice provides, as compared with other GPs in the area and nationally… If you’ve got a long-term condition, you might want to think in future about different GPs and whether they are providing a full range of services for particular people with long-term conditions”.

Of course it would be fantastic if patients could move between one general practitioner and another, but I fear that the financial restraints on all of the system will mean that that ideal will just not be met.

17:30

In the document Developing Commissioning Support: Towards Service Excellence, it is clear that the commissioning support is viewed to come from a commercial source. In the summary document to that, the running cost estimated for the arrangements will be £25 to £35 per head of population, which will be there to optimise arrangements to suit the scale of the problem facing the group. The commissioning support will come from commercial providers. However, as we have already heard, many of those are actually ex-PCT employees who have gone across into other organisations. From 2013 to 2016, the Commissioning Board will host some of the commissioning support via an arm’s-length senior accountable individual. That commissioning support will be assessed against a focus on the consumer, as defined by their consumer base and working relationships; on leadership, particularly to bring about change; on delivery, with a technical capability; on governance, to provide the services needed; and on the business case. All of that sounds eminently sensible. I do question, however, whether this enormous upheaval was actually necessary or whether a revision of the PCTs, an increased input from clinicians and a tightening up of the commissioning focus within PCTs, with the courage to weed out those who were not performing well, would have been a more cost-effective way to deliver what we will have in the long term anyway. It seems that when people are reapplying for jobs in other organisations, the stronger ones will come through and the weaker ones will not.

Although we have heard a lot about local accountability and the clinical commissioning group having a very local focus, I would like to quote from page 27 of the larger document:

“It is clear from discussions with Pathfinder clinical commissioning groups that the principles and rationale for delivering some services at significant scale is well understood and accepted: it will allow them to influence and concentrate on the aspects of commissioning where they can add most value … However, there is also a clear message that the focus should be delivering customer focused services and maintaining responsiveness, even where services are delivered at scale”.

The clusters are, of course, providing a degree of scale, but there seems to be a hybrid spectrum between the very small going right up to the larger cluster, and items which need to be commissioned at what used to be almost SHA level. I therefore question the rationale for this whole process and that is why I added my name to the amendment.

I now turn to Amendment 236AA, concerning medical and dental postgraduate deans. I have discussed this with the General Medical Council and with postgraduate deans, with the lead dean from COPMeD. The reason they want to be funded by HEE is quite specifically so that they can maintain their independence and have the leverage to bring about change. The postgraduate deans’ budget overall is somewhere in the region of £2 billion: it is not insignificant; 90 per cent of the training posts across the UK are funded through them. Many posts, such as first-year foundation posts and most specialty training posts are 100 per cent core-funded through the deans’ budgets. The remainder of the posts are mostly 50 per cent core funded. Their ring-fencing allows money to be moved to change the distribution of posts. At the moment, for example, they are driving down surgical training posts and increasing general practice training posts.

There is always a pressure from within the service to maintain the status quo because services are often trainee-dependent. The postgraduate deans themselves have rationalised their costs greatly, so their on costs are only 4 per cent, compared to universities which run at about 15 per cent. Previously they had been placed in universities, but that did not work well because of conflicting research assessment pressures. They are concerned that if they are part of the service, service pressures will dominate.

Their independence allows them two key functions: one to maintain quality assurance and the second to drive up and improve quality. They are handling public money to train the doctors of the future, not only to provide the service needs of today—but within the training context, to meet the needs of today. They need to be local education and training board members because very often they are the only people on such a board who will bring educational literacy. They are all fellows of the Academy of Medical Educators or hold an MSc in medical education. They have an ability to assess both the provision of education and the assessment methods used in education. There is an awful lot of provision of education which is, frankly, inefficient and there is an awful lot of assessment that does not actually assess what it claims to be assessing.

At the moment, there is only one workforce director who has any education training at all; so without this high level of educational literacy, the local education and training boards are going to be severely disadvantaged. The NHS itself has to provide care today and high-quality care into the future. It is easy to focus on the present, but however good a medical school is, when its graduates move out, being employed is different. Training is dramatically different from 10 years ago. The postgraduate deans have really proven how they have driven up—despite the constraints of the European Working Time Directive—the ability of the juniors to be trained well and to cope with the changing pressures in the NHS.

For example, the medical take now in many centres averages 120 to 140 admissions a day. That is dramatically different from how it was 10 years ago. The trainees are better supervised; they are trained to avoid mistakes, not repeat ones they or those who have gone before them have made. The curricula are better focused across all the needs of the service, not only the technical needs. The postgraduate deans weed out about 3 to 6 per cent of all trainees: they are either moved sideways, have to repeat some training time or—in the case of a few—are weeded out completely. So they are exercising their independence and discretion to train for the future.

I know that the Minister has undertaken to look in detail at all aspects of education and training, but I want to have on the record the postgraduate deans’ need to be independent. That is supported both by the deans themselves and the General Medical Council, because in considering the future, it is very important that we do not lose the educational expertise from the current set of deans.

[Lord Warner]

I suggest that this group of amendments has been provoked by the extremely unconvincing nature of the Government’s organisational structure for delivering the reforms they consider necessary to the NHS; they would in themselves, I suspect, attract a wide range of support. I want to address my remarks to Clauses 30 and 31 on the abolition of SHAs and PCTs. I think the concerns many of us have were well put by my noble friend Lord Hunt.

I want to divert a little from my remarks to congratulate the noble Lord, Lord Mawhinney, on his detective work. If he wants to continue in that vein, I suspect that he could find some examples in other parts of the country that go wider than that in Peterborough. He might want to entertain us with more of those examples at a later stage in the Bill because I suspect there are plenty of them. In a spirit of helpfulness, I say to him and to the Minister that among the department’s papers of around 2005 are quite a lot showing how you go about consulting local people about the removal of PCTs and how you use a proper legislative basis for abolishing them and replacing them with new, properly authorised and properly appointed PCTs. I would be very happy to give my approval to the opening up of those papers so that the Minister can help the noble Lord, Lord Mawhinney, see how you can go about this. It is often controversial, but there is a process for doing it, which is well documented, and you do not have to go along the path of clusters. It is perfectly possible to engage with people—sometimes they do not like it—and go through a proper process for replacing a number of them. It can be done, and it can be done in a proper way, but it takes a bit longer. I would be very happy for those papers to be made available to the noble Lord, Lord Mawhinney, and the Minister so that if they are struggling a bit in seeing how it can be done, they can draw on that example.

Some of us on these Benches have acknowledged that the 2002 NHS reorganisation rather overdosed on the number of SHAs and PCTs and, as I have just said, we tried to put that right in 2005 and 2006 with a reduction to 10 SHAs and 152 PCTs. Some of us would have liked to have gone a bit further and reduced PCTs further, but that’s life. You do not always get what you would want. In practice, that further reduction could have led, as I think the noble Baroness, Lady Finlay, said, to a much more straightforward way of making the changes that needed to be made and could have included a very large increase in the number of clinicians involved in the process of commissioning. I do not think anybody in this Chamber is opposed to the Government’s idea of increasing substantially the amount of clinical and, in particular, GP involvement in the commissioning of services. However, it could have been done without this process, and it could have built on the lessons of GP fundholding, on which I have always been a supporter of the Government’s approach. I thought it was a bold experiment, and I do not say that with any sarcasm at all. It was a bold experiment that was well worth trying and which we built on further with practice-based commissioning, so I do not think there is a lot of political dispute about more clinical involvement in commissioning.

The Government could have done that without clusters by simply reshaping PCTs, changing their membership, probably reducing their number and possibly increasing—dare I say this to some of my colleagues on these Benches?—the involvement of private sector skills in the commissioning function with the data analysis and information gathering. They could even have done it with a little more democracy in the membership of PCTs on which, as I recall, the Liberal Democrats were rather keen at one point. The coalition partners could have been brought onboard with a bit more democracy in PCTs as well. That might have been a good mix to go forward.

17:45

As I said, the Government have managed to go along a totally different path and on many occasions they have stuck to their guns when there has been the opportunity to change course. I want to remind them and the House of something I have said on a number of occasions. It is that no Government since the beginning of the NHS have managed to run it without an intermediate tier. There is a good reason why different parties have found it necessary to have an intermediate tier. It is because there are a lot of functions that do not easily sit at the local or the national level. Those of us who have been Ministers know that only too well. A bridge is often needed to the local areas through a regional presence, and it does not matter whether you call them regional health authorities or strategic health authorities. If you want, you could even call them sub-national board entities. I do not mind, but that intermediate tier is essential. It is even more essential if you have a financial crisis because it is the way to try to make budgets stick at the local level. That is not just because we like to have some heavy-handed financial thugs—although occasionally they are quite useful—to do this. It is because it is a way of persuading people locally to face up to their responsibilities and to get a collective agreement on the changes that need to take place in order to make the NHS function reasonably well with the money available. There are always going to be overspenders at the local level. We have never had a period in the NHS’s history when everybody at the local level has managed their budgets perfectly. There have always been hospitals or commissioners that have overspent, and you need that intermediate tier to keep things under control.

The beauty of the previous arrangements, whether they were strategic health authorities, regional health authorities or regional hospital boards, was that, first, it was transparent that they were there; secondly, they were properly appointed; and, thirdly, they often had people who had some knowledge about the areas for which they were responsible. That function will not go away. What we are doing now is burying that function somewhere in the national Commissioning Board and, as my noble friend Lord Hunt made very clear, we are not at all clear how it is going to be discharged. To make life even more complicated, the Government have thrown in senates for good measure. It is not terribly clear how they are going to function or whether, in practice, they will be a block on the process of changing the configuration of services. It is not just me saying that; groups such as the NHS Confederation are very concerned that what we will have created is a kind of paralysis in decision-making at local level and in between the local level and the centre. I will put it no clearer than that because I do not think it is any clearer than that. Something is floating around in the ether: presences between the local level and the national Commissioning Board. That is where we have ended up. Clusters were invented, I think, to try to recognise that we need to reduce the number of PCTs, but there was no appetite for going through the process to do that in a proper and considered way.

Just to make things really interesting, the Government have also introduced an interesting new geographical concept for commissioning services based on GP practice areas. They have not just stuck with GP practice areas. They have invented—actually, we are seeing the invention as we sit here—new arrangements for new kinds of areas in which someone is forced to take some responsibility for the commissioning of services. Instead of having areas that are clear and publicly known, which is what we have got with PCTs, and which often had a pretty good relationship with the boundaries of local authorities, we have got we know not what. We have seen some maps from the Minister, who kindly circulated them, but they show, particularly in the West Midlands, the neck of the woods of my noble friend Lord Hunt, a rather confusing picture about practice areas and how they relate to the old PCTs areas. Whether there are going to be very many people in the West Midlands who understand who is responsible for some of these areas must remain open to doubt. I certainly found the maps revealing but quite difficult to understand.

It is not surprising, in that set of circumstances, that people are anxious about what is going to happen in a period when the NHS is trying to deliver the Nicholson challenge of £20 billion of productivity improvements or savings—call it what you will—over four years. People are worried because the NHS has never introduced the kind of productivity improvements that are needed to deliver the Nicholson challenge. Put cautiously, this is 5 per cent a year in real terms. The NHS has never delivered that annual saving in one year, let alone four years on the trot. Here we are throwing all the organisational cards up in the air—if I may put it like that, as that is what it feels like to many people in the NHS—and saying we are going to get rid of strategic health authorities in April 2013. That is the Government’s plan. The very organisations which might have kept some kind of grip on the finances and the way the NHS is being managed have been put on notice that they are going to disappear. Some of them will reappear in some guise, although not as a public body, somewhere in the middle of the national Commissioning Board. Others will appear as local offices. They may not be called that, as we are not yet quite sure what they are going to be called, but they will reappear as a local presence of the national Commissioning Board.

We are relying on a huge amount of faith in the Government knowing what they are doing. We are relying on that in regard to about £120 billion, give or take, of public money every year. Not surprisingly, coming to the amendments in this group we see that people think there should be some checks. We need to have some safeguards in here, so that if it does go a bit wrong there is some way of salvaging the situation, instead of people assuming that we will keep all the expertise that we currently have in PCTs and SHAs. I know that PCTs and some SHAs have had their problems, but there is also a lot of expertise there. The bits of that expertise which disappear and the bits which remain will, I suggest, be slightly random; it will revolve around a lot of personal choices as much as anything. So we need some checks in this. It is not too late for the Government to be mature and recognise that we need better safeguards. That is why I am very sympathetic to changes which preserve the SHAs, in particular, for a longer period until we have actually got through the financial challenges that the NHS faces.

[Lord Walton of Detchant]

My Lords, I shall speak briefly to Amendments 236AA and 236AAA. As I listened to the noble Lord, Lord Warner, I reflected upon the fact that in the course of my professional career I have been a member of four hospital management committees, an area health authority for teaching, a regional hospital board and a regional health authority. Each one of these had its merits and defects.

On reading them and understanding the intention underlying them, these amendments look absolutely praiseworthy. I do not believe that they would have been necessary if the Government had been clear in what they intend to do about the subnational outreach of the national Commissioning Board. This has been promised to us by the Government and by Sir David Nicholson. It is intended to deal in every respect with the specialised commissioning of highly specialised services with regard to long-term conditions and with the issue, raised in many debates in the course of the last week or two, of the rising problem of rare diseases and their management and the new means of treatment that are being introduced.

Having said that, we hear that the Government are going to have clinical senates at a subnational level. It is intended that at these clinical senates there will be subnational outreaches of the national Commissioning Board that will fulfil the functions set out in Amendment 236AA. If that is right, my concern about supporting Amendment 236AA is that it looks as though it carries the potential danger of introducing yet another tier of management within the NHS. I look back with horror as I remember Keith Joseph’s reorganisation of the NHS in 1974. I was heavily involved at the time as the dean of a medical school. It created regional health authorities, area health authorities and district health authorities. The tiers of management were impossible and the decision-making machinery congealed.

I am very anxious that we do not go down that route. If we could have clarity from the Government about the subnational senates and the outreach organisations of the national Commissioning Board, Amendment 236AA would not be needed and would have the potential danger to which I have referred.

I agree with every word my noble friend Lady Finlay said about the role of the postgraduate medical and dental deans. As I said at Second Reading, and later, it is the financial responsibility of the NHS to provide education and training for all healthcare professionals and to provide training for young doctors and dentists who are being trained for specialities in various branches of the profession. It is absolutely right that that authority and responsibility continue to be imposed upon the postgraduate deans, but surely the right place for them is not only in Health Education England but in these clinical senates—the outreach organisations of the national Commissioning Board to which I have referred. I hope that the Minister can give us assurances about this.

I would hate to say that this amendment, so ably proposed by my noble friend Lady Finlay, is in any sense weak. It is not—it is a strong amendment—but it might not be necessary in the light of the developments to which I have referred at the subnational senate level. I am concerned, too, that if it were accepted it might prejudice the Government’s acceptance and agreement, which the noble Earl gave us quite recently, to the effect that a major government amendment on education and training is to be tabled by him on Report, to which we very much look forward.

The principles underlying these amendments are excellent, but for the reasons that I have mentioned I would find it difficult to support them if they went to a vote.

[Lord Newton of Braintree]

My Lords, I will speak briefly. First, I remind the Committee that when I spoke on a related matter last week, as my noble friend Lord Mawhinney has reminded us, I indicated that I have an interest as my wife is a PCT non-executive. I wish to put that on the record again.

I rise in the same spirit of helpfulness as the noble Lord, Lord Warner, with whose every word I agreed—the Minister needs to know that. I am also conscious, as my noble friend Lord Mawhinney reminded me, of my hurt last week when I was accused of using extravagant language. I will try to do better—well, worse, perhaps—this time. I indicated at that time that when we got to these amendments I thought my noble friend Lord Mawhinney would leave no one in doubt about his views. He has not, and I have not got up in order to disagree with him.

I want to concentrate on two things: the constitutional issue and the conflict of interest issue. The constitutional issue is perhaps arguable, but if you take the view, as my noble friend did, that the Government have in effect—certainly this is how they present it—abolished PCTs before this Bill has even been passed, there is a real question mark. Perhaps it is no more than a question mark because they will say that they have not abolished PCTs and will not do so until an order in two or three years’ time, but that is how it feels, looks and is perceived on the ground, and your Lordships might like to bear that in mind.

18:00

The second point troubles me even more and it is very clear; it is what I call the conflict of interests point. It might arise with SHAs and the clustering of SHAs that has gone on. I think I am right in saying that the SHA for eastern England, which now covers the east of England and the Midlands, stretches all the way from Yarmouth, the easternmost point of the United Kingdom, in Norfolk, to the Welsh border. How seriously can one body deal with the relevant issues over such a hugely disparate area, covering as it does on the way the massive conurbations of the West Midlands? I do not understand that. The appointments look like an east of England takeover, which perhaps is fine for those of us in the east of England. The chairman is from the east of England, the chief executive is from the east of England and large numbers of the executives are from the east of England. All that has happened—well, not quite all because not everyone is from the east of England—is that they have moved from Cambridge to Nottingham. How far is Nottingham from Yarmouth or Norwich? All sorts of questions are raised by this.

However, I want to concentrate on PCTs. As everyone, including the Minister, acknowledges, cluster boards had no legal existence. PCT boards continue to have a legal existence and to have all the responsibilities and duties that they had until whenever this started to happen. Under legislation, they have a duty towards the people in their area. When the PCT boards that are now being clustered were appointed, you could not be a non-executive director unless you lived in the area, and they had duties towards the people of that area. How is that interest, that duty, to be reflected in a board that does not have a majority of the people from any given area?

Let us look at Cambridge and Peterborough where, if I am right, there are particular tensions. My noble friend indicated that there would be three people from one area and three from the other—I do not know what exactly happened—with a chairman drawn from one area, which would mean four people and three people from the areas concerned. If there is any debate or confusion, how will anyone believe that that body is taking decisions in the interests of the minority area? A fortiori, if more than two bodies were clustered, no one would have a majority and the question could be asked in every area how far this body could represent the interests that it was supposed to serve in its capacity as the board of that area. This body has the same duty to everybody in two, three or possibly more areas. I do not understand how it will work. In some cases, there will be clashes, or at least different perspectives, between the hospitals that they represent.

Let us take a simple situation in which three PCTs each have a big district general hospital that may well have rival interests. If a service has to be allocated or a decision taken by the commissioning body or this cluster board on the basis that I have described, how will anyone be satisfied that the situation is fair between those three DGHs? I do not see how that will be achieved. One PCT responsibility is dealing with the allocation that it will still get as an individual PCT. How will the people of one area be persuaded that the proper decisions are being taken by a board that is no longer the representative or the chosen representative of the people in that area? I just want some answers to these questions.

I do not know what my noble friends think and I am not a natural troublemaker, but there are questions that have to be answered before this House or the other place can be satisfied. I very much hope that we will get some tonight. This issue clearly has not been properly thought through. I should be grateful to know whether my noble friend—he may want to shy away from this—can honestly say that he is clear that this process would be invulnerable to judicial review, which I very much doubt. I want him also to make it clear that the door is not shut on thinking again about some of the important issues that have been raised in this debate.

Like my noble friend I hope that this will not be pressed to a vote because the Government need to do some thinking and should be able to do it between now and Report. Ultimately, that depends on the reaction to what he says and whether we can have some hope that these issues will now be thought through and modifications made if necessary before we come back to this.

[Baroness Murphy]

My Lords, apart from the postgraduate dean amendments, the rest of the amendments in this group in effect fall into the category that one might call “Stop the Bill, I want to get off”. They would all fundamentally change the Bill; they would ruin it. None of them is a serious proposition. You cannot go from one system to another without radical change, but the arguments that I have heard about these amendments seem to be the same arguments that I have heard about preventing any change in the National Health Service.

The noble Lord, Lord Hunt of Kings Heath, says, “No, we can’t do it now because it’s too expensive and we have to save £20 billion”. I suggest that it is not the £20 billion that we need to worry about; it is the increased costs that will continue to accrue through the changing demographics and changing technology over the next 20 to 30 years. If we continue to use the same direct management system, with its intermediate and many tiered system that we have used for the past 50 to 60 years, we will never address the challenges. All we will do is have a meagre, minor, reduced NHS of the same sort that we have now. We will have less and will not adapt and create something better. I am very much in favour of moving away from the direct management system with its so-called intermediate tiers, which I have served on as best I could over many years, to an independent regulator system where the providers at least are freed up and the commissioners, with the clinicians in charge, have the freedom to think about what they need to shape this service.

I agree with the noble Lord, Lord Newton, that the transition pathway in certain areas still needs to be clearly set out. We have had a clear indication of how that will work. Nevertheless, it is not all finalised. At this stage in the passage of a Bill, my experience is that things are put into place. That was certainly so in 1990 with the working on the patients’ transition and the other transitions that were put into place by the Labour Party. There were arguments in this Chamber and the other place about the fact that everything was being set up. Proleptic appointments and the transition of structures were being made—heavens, it would have been improper if they were not. The fact that some of these changes are happening is very helpful.

The centred primary care trusts and strategic health authorities have been mentioned before. Is it not strange that two to three years ago nobody could wait to get rid of them because they were not performing very well? I agree that they have improved. Nevertheless they have not proved to be that helpful structurally, as they have become extremely bureaucratic and have not performed as well as we had hoped. To the noble Lord, Lord Rea, I would say that the speech made by the noble Earl some time ago could be repeated word for word today because there will be no private commissioning. There will be public sector commissioning that is supported in some instances only by the expertise of the private sector, which the noble Lord, Lord Warner, said is often very useful in these circumstances. I hope that the noble Earl will be able to reassure him about that.

It seems to me that if we want to create a new system—which I think we must, because the NHS cannot continue as it is at the moment—we will need some very serious structural changes. We need to progress and move on as quickly as we are doing now to get the SHAs and PCTs out of the way in an orderly fashion and to get the new structures for a new sort of regulated system in place.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, Clauses 30 and 31 abolish strategic health authorities and primary care trusts and remove the relevant parts of the NHS Act 2006. Let me start by addressing the noble Lord, Lord Warner by setting out where I feel we have consensus, because I think there is some consensus.

There is agreement that decisions in the NHS need to take place at different levels and we need to ensure that decisions take place at the appropriate level. I agree with the noble Lord that these levels do include an intermediate tier and there are decisions which should happen. However, where we differ is on how best to facilitate these decisions. We do not feel that the best solution is to have separate statutory bodies to play this role. Instead, we propose flexible arrangements that will best meet the changing demands of what needs to happen at this level—hence the board’s field force, which noble Lords have spoken about, which will be adaptable in the future to grow and evolve in partnership with CCGs. That is the background to our approach.

As we have already discussed, many of the necessary functions and duties SHAs currently undertake will, in future, be undertaken by the NHS Commissioning Board or by clinical commissioning groups. Where existing functions or duties are unnecessary, we are removing them, making the system more streamlined and reducing administrative burdens. The amendments in this group would prevent the abolition of strategic health authorities until such time as the Secretary of State is satisfied that all of their functions and duties have been transferred to other bodies.

I understand the importance that noble Lords place on getting the timing of the transition right. As the NHS Future Forum pointed out following its consultation exercise, some people felt that the changes were proceeding too quickly, while others were concerned that the pace of change was not fast enough. The forum recommended further changes to phase the transition, and the Government responded by postponing the abolition of SHAs by a year. I believe this allows enough time for a safely managed transition.

The NHS Commissioning Board is due to take on its commissioning responsibilities in April 2013, and we believe that it is vital that SHAs and PCTs do not continue beyond that date. There are two main reasons for that. A key aim of the Bill is to ensure that the functions and duties of all bodies within the system are clearly defined. To have a confusion of responsibilities would be a retrograde step. The second reason is that allowing SHAs to run beyond the current proposed deadline for their abolition would also incur extra costs and hinder the Government from meeting the efficiency targets set by the quality, innovation, productivity and prevention programme. I will say more about that factor in a moment.

18:15

Turning to primary care trusts, we expect PCTs to retain commissioning responsibility while clinical commissioning groups develop and establish themselves. Once clinical commissioning groups are able to take on their commissioning responsibilities, we intend that PCTs should be abolished, and this will occur in April 2013. I understand that the noble Lord, Lord Rea, has concerns about this approach. I would like to make it clear that clinical commissioning groups will not be authorised to take on any part of the commissioning budget in their local area until they are ready to do so.

Where a clinical commissioning group is not able to take on some or all aspects of commissioning by April 2013, the NHS Commissioning Board will commission on its behalf, and in this role will be subject to the same duties of transparency and engagement. All clinical commissioning groups will have the right to take on full responsibility once they have demonstrated that they are ready.

I also hope that my statements regarding strategic health authorities and primary care trusts address the concerns of the noble Lord, Lord Beecham, and the noble Baroness, Lady Thornton, in relation to Amendment 245AA. There are a host of consequential amendments contained in Schedule 4 to the Bill which aim to ensure an effective transfer of responsibilities from PCTs and SHAs to the proposed new organisations. To remove these would result in legislative confusion and would also risk important functions not being picked up by the new organisations.

This leads on to Amendment 236AA, which would establish the sub-national functions of the board as separate, statutory, local NHS commissioning boards, each with its own full board of directors—in other words, a reinvention of the regional tiers in the NHS. I believe that this approach, recreating a statutory layer of management, would be not only unnecessary but also inefficient. It would almost certainly make it impossible to cut the overall costs of administration by a third, as our existing proposals will, creating savings to reinvest in frontline services. I cannot see how the new bodies that the noble Lord, Lord Hunt, proposes would add to accountability in the way that he suggested. The board will carry out a range of functions that will need to be carried out at both a national and a local level. We think it is best that these are carried out by a single body, with the autonomy and flexibility to design its own infrastructure, in a way that meets the needs of the local health service yet provides consistency nationally.

Turning to Amendment 256A tabled by my noble friend Lord Mawhinney, let me first say that I agree that it is vital to ensure a smooth transition of commissioning responsibilities to the newly established CCGs and to ensure that there continues to be proper governance of PCTs and PCT clusters in this initial period. I appreciate my noble friend’s anxieties on this score. However, we continue to believe that PCTs and PCT clusters are best placed to do this by retaining their current structure and ensuring they continue to have governance arrangements in place. I will elaborate on that in a second. Where CCGs commission services for patients during the initial period, they will be doing so on behalf of PCTs through arrangements made under paragraph 11 of Schedule 6, rather than through exercising the CCG’s own statutory functions. Until CCGs are able to carry out their commissioning responsibilities independently, the PCT will remain statutorily responsible for those functions.

My noble friends Lord Mawhinney and Lord Newton, to whom I apologise for my own extravagance of language last week, raised serious questions over PCT clusters. PCTs have been brought together into clusters precisely to ensure that accountability is maintained. Without clustering, the NHS would have seen PCTs being overseen by incomplete and patchwork teams of interim appointments as people in posts anticipated the abolition of PCTs and moved on to different organisations and roles. That would have led very definitely to unclear lines of accountability. Our view was that it represented a risk to ensuring that PCTs were able to continue effectively to carry out all their possibilities. Through clustering we have ensured that every PCT, through the cluster, will have a complete and able management team until, subject to Parliament, they are abolished. I would say to my noble friend Lord Newton that my clear legal advice is that clustering has a firm basis in terms of the use of legal powers and, furthermore, it is a reasonable use of those powers.

My noble friend spoke about conflicts of interest and the lack of proper representation on clusters. There is always the potential for any board member to come across a conflict of interest, and that is particularly true for non-executive positions, which are generally part-time and where people often have other roles outside of their non-executive responsibilities. It has therefore always been necessary for PCT boards to manage potential or actual conflicts of interest as they arise. We expect them to continue to do that in their new clustered states. We expect all board members effectively to work in the interests of the people served by all of the PCTs in the cluster and for non-executives and chairs to act in a manner that is in keeping with the Nolan principles.

We do not believe that, in effect, increasing the geographic scope of PCT board members by asking them to discharge their responsibilities on more than one board raises greater risks than may have existed with PCTs that were already very large. Some, as my noble friend knows, were already very large—all of Norfolk and all of Suffolk, for example. I hope that that explains at least the rationale for clusters and gives my noble friends some reassurance about the legal basis on which the clusters have been formed.

[Lord Mawhinney]

My noble friend knows that three months ago in the Peterborough PCT there was a non-executive chairman and six non-executive directors. To the best of my knowledge, they have all gone. What now constitutes the Peterborough PCT and how does it make decisions when a cluster refers something to it for legal validation?

[Earl Howe]

The clustering is a clustering of the boards. In other words, there is one board serving two or three PCTs, depending on the area of the country. The staff of the PCTs remain in place. There is capacity there to carry out the functions of PCTs. That is why PCTs remain statutorily accountable and they are in a position to perform the functions that the law places on them. We have streamlined the direction from board level. That is a practical and efficient thing to do and I do not think that it poses the kinds of risk that my noble friends were suggesting that it would.

I am very happy to meet both my noble friends again. I would say to my noble friend Lord Mawhinney that I was smiling when he spoke only because I know that Sir David Nicholson would be amused to be referred to as the chief technocrat. I would simply say that the NHS chief executive, while no substitute for me, I quite agree, may nevertheless prove helpful. That is certainly the object of his offer to meet my noble friend.

[Lord Newton of Braintree]

My Lords, I think that we are talking about conflicts of interest in two different senses. My problem about conflicts of interest goes back to the accountability point that the Minister touched on. These two or three PCT boards remain accountable at least in part to the people of the area they were appointed to represent. Then there is conflict of interest in the narrower sense. I am chair of the board of the Suffolk Mental Health Partnership. If I had an interest in a private sector mental health outfit, I would obviously declare that and that is normal business. I am talking about a fundamental conflict of interest between the people on these boards and the interests of the people to whom they are supposed to be accountable, wearing three different hats.

[Earl Howe]

My Lords, my point was that such conflicts have been managed in the past and can be easily managed in future. While there may be a specific example my noble friend wishes to draw to my attention, which of course I shall take seriously, I am not aware of any such examples. The clustering arrangement in practical terms is working efficiently around the country. Of course, I regret if hard-working non-executive directors who have served PCTs in the past have stepped down, because they have done sterling service, but it has been necessary to rationalise that structure.

[Lord Beecham]

Would the Minister care to reply to the rather disturbing question of the noble Lord, Lord Mawhinney, about the threat to members of the PCT who decline to resign and the consequent apparent disqualification from subsequent appointment?

[Earl Howe]

My noble friend refers to the current legal position—that a non-executive director can leave his or her office in only one of two ways: by resigning or by being forced to resign. There is no desire on anybody's part to force non-executives to resign. These are not non-executive directors who in some way have misbehaved—not at all. However, it is necessary in the interests of the NHS that we rationalise the system.

The proposal put before non-executive directors was that, in the interests of the health service, they should consider their positions. That is not because they have done anything wrong but because of the transition that we find ourselves in. I would ask any non-executive directors who are listening or who read Hansard not to take offence at this. It is no reflection of their service to the public or the health service; it is simply a reflection of the transition that we are going through.

With my noble friend's permission, I should cover some of the other questions that have been raised. Of the many functions transferring from SHAs, Amendment 236AAA specifically seeks to address the role of postgraduate medical and dental deans in the new system. I recognise the vital role that the deans currently play to ensure quality within education and training. The important work of the postgraduate deaneries will continue through transition and into the new arrangements from April 2013. The SHAs will continue to be accountable for postgraduate deaneries until 31 March 2013, allowing time for a phased transition of their functions. This will ensure stability and help develop the improved system.

As the noble Baroness indicated, I have undertaken to come forward with more detailed proposals on education and training between now and Report. I repeat that assurance. Further work is under way on the detail of those arrangements with the right accountabilities for the quality of education and training to Health Education England and the professional regulators. That detail will be published as soon as possible. I hope I can reassure her that we have listened to the concerns in this area and that we are taking steps to address them

I would also like to address the matter of Clause 45 standing part of the Bill, which is part of this group. This clause will ensure that the Secretary of State will be able to establish new special health authorities only temporarily, for a maximum of three years. If there is a compelling reason for a special health authority to continue to exercise its functions beyond the three-year deadline, it is possible to extend its existence. However, any decision to do so would be subject to full parliamentary scrutiny via the affirmative procedure. This is to reflect our intention that any body in the health system exercising functions on a longer-term basis should have those powers transparently conferred on it in legislation.

18:30

The noble Lord, Lord Hunt, spoke about accountability. I think that, in fact, the board will be more accountable in many ways than existing NHS organisations. It will account to the Secretary of State and Parliament through the mandate and accompanying outcomes framework and the requirement to publish its annual business plan and annual report, and it will account for its decisions through the requirement to involve and consult the public over changes to commissioning arrangements.

I would say to the noble Lord, Lord Walton, that the precise structure of the board will start to take shape now that the NHS Commissioning Board Authority has been established to take preparatory steps towards the establishment of the board. The discussion document Developing the NHS Commissioning Board, published by Sir David Nicholson in July, set out the likely approach to how the board will be organised. It is clear that clinical advice will be central to the way in which the board operates, and clinical senates should be seen in that context, not as representing an additional layer of bureaucracy.

I would say again to the noble Lord, Lord Hunt, that the local workings of the board will be accountable through their work sitting on the health and well-being board, as well as needing to have regard to the joint health and well-being strategy. However, I think that what he said begs a question. The noble Lord paints a somewhat halcyon picture of PCTs and SHAs being accountable to their populations. As I tried to indicate on Second Reading, I do not share that analysis. No one disputes the valuable role that PCTs have undertaken. They have some good people and some important skills. However, under the current system PCTs attempt to combine two roles: they must make clinical decisions about commissioning NHS services; and they must understand the needs of their population, involving and accounting to local people.

[Lord Warner]

I am sorry to interrupt, but I am really bemused by what the noble Earl has just said about the accountability of the local entity of the national Commissioning Board to health and well-being boards. Health and well-being boards have no budgetary responsibility whatever, as I understand what the Government are saying; whereas the national Commissioning Board has two lots of budgetary responsibility—for its own specialist commissioning and for its oversight of the money that it hands out to clinical commissioning groups. Perhaps the Minister can explain it to me. I can understand that it might want to consult the health and well-being boards but, in terms of accountability, I cannot understand how it can be accountable for its budgetary priorities and decisions to the health and well-being boards.

[Earl Howe]

It is accountable for its decisions at a regional or sub-national level in a real sense. If it was not interacting with the boards, the noble Lord, Lord Hunt, might have a point; but it will be. I think that that is accountability in a meaningful sense. The noble Lord, Lord Warner, talks about budgetary accountability, and I understand that that is a real issue. Of course there will be no budgetary accountability, but there will be accountability for the decisions and actions taken by the field forces.

I was saying that the structure means that all too often neither of the roles that PCTs perform is performed well. GPs, who actually make the clinical decisions, are not properly involved in PCT commissioning; and PCTs do not have the detailed understanding of their communities or the link to other local public services. The result is an unsatisfactory compromise, with commissioning that fails to deliver improvements in health outcomes and local services that are fragmented and not integrated.

It has been suggested by some noble Lords that one could have kept PCTs and parachuted in a whole lot of doctors, perhaps filtering out some of the administrators. Anyone who has visited any pathfinder CCG and put that question to the doctors and other clinicians involved will know the answers to why that would not have been a valid and sensible idea. The way in which services are commissioned has to depend on the judgment of clinicians and the wisdom of establishing geographic areas for commissioning groups that make sense in terms of patient flows and in terms of links with local authorities, social services and public health. It does not make sense to retain structures that, frankly, are administrative constructs that do not necessarily bear any relation to patient flows or relationships with local authorities. These clinical commissioning groups are being created from the bottom up by those who know what is in the best interests of patients, and it is to patients that we must always return in our thinking. We currently spend £3.6 billion a year on the commissioning costs of PCTs. PCT and SHA management costs have increased by £1 billion since 2002-03. That is a rise of over 120 per cent. We cannot make savings on the scale that we need to while retaining the administrative superstructure of the NHS.

The noble Lord, Lord Hunt, suggested that the pathfinder CCGs were being built on nothing at all. They are not being created from nowhere. They are building on, and are indeed a logical development of, practice-based commissioning groups, of which there were a very significant number. There are currently 266 pathfinder clinical commissioning groups covering 95 per cent of GP practices in England. As I have indicated before, I cannot say how many we will eventually end up with, but that will give noble Lords a rough indication of the order of magnitude.

The noble Lord, Lord Rea, quoted some words of mine from a debate of several years ago. I would simply say to him that I was speaking then of something completely different from the Government’s current proposals, and I am grateful to the noble Baroness, Lady Murphy, for pointing that out. These reforms place leadership of commissioning firmly with clinicians. I completely agree that giving leadership to a non-statutory, private-sector firm would be a bad idea. That is why there are very clear safeguards against this happening. With PCTs, I feel that there was a genuine question over where commissioning leadership really lay, and this is very firmly no longer the case.

On Amendment 236A, I must clarify one point. It is not the case that a clause stand part debate on Clause 30 would be consequential if a Division was to be called on Amendment 236A and won. It would simply amend this clause and not entail that it needs to be removed.

I hope that I have sufficiently covered the issues raised by noble Lords. I do not suppose that I have satisfied everyone, but I hope that I have at least indicated the direction of government policy in a coherent way.

[Lord Rea]

The staff of PCTs below management level are going to be rather disappointed that the Minister did not answer my question regarding their employment and the possibility of their being moved over to the CCGs, where many of their functions are going to be precisely similar. Are they going to be made redundant? Is it going to be possible to move staff over smoothly without a break in their employment status?

[Earl Howe]

My Lords, the rules apply on transfer of employment, and we anticipate that around 60 per cent of PCT staff will transfer to clinical commissioning groups, local authorities or the NHS Commissioning Board. It has been necessary to institute a programme of managed accelerated retirement for those for whom there will be no posts. However, this is being done in as friendly and generous a way as possible and the process is working well. But on the noble Lord’s main concern, yes, the terms and conditions of employment should not alter for those who stay.

[Lord Warner]

Could the Minister give us an assurance that before Report he will give us some idea of the extent to which the current arrangements are going to meet the targets set by the Government for delivering the Nicholson challenge for this coming year, so that we can see the extent to which the Government are at risk if they abolish the SHAs from April 2013?

[Earl Howe]

My Lords, the SHAs have already published their plans for delivering the Nicholson challenge and those are on the SHA website. There is no secret about that. I can tell the noble Lord that we are on target to deliver the Nicholson challenge over the four-year period as a result of savings already made.

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting and instructive debate. I should tell the noble Earl, Lord Howe, that I do not have a rose-tinted view of primary care trusts. They were improving, I believe. But the question that I put to the Government is why on earth, instead of going through this convoluted and complex restructuring, they did not say immediately to primary care trusts that they should divest themselves of the services that they ran and get a move on with giving more responsibility to GPs? They could have done it on their first day, instead of which, instead of SHAs and PCTs, we have a much more complex structure, with clinical commissioning groups, health and well-being boards, senates, the NHS Commissioning Board and—blow me down—their field offices as well. I can tell the noble Baroness, Lady Murphy, that as the NHS Confederation says, we now have a very complex structure—not a streamlined approach that will deal with all the problems of the NHS. My goodness me, this structure will cause as many problems as it is potentially there to deal with.

There are some very serious questions about how the Government have done this. I am glad to know from the noble Lords, Lord Mawhinney and Lord Newton, that I am now part of the same region as they are. I look forward to further discussions and perhaps meetings in Nottingham from time to time, if we are summoned together.

The fact is that, in effect, primary care trusts have been abolished in advance of legislation. I understand what the Minister says—that by creating a cluster with non-execs from the PCTs, in effect those non-execs become the non-execs of each primary care trust. That is how the Government are essentially doing it, but that is a very disingenuous way in which to deal with the issue. They are skating on very thin ice, and the potential for judicial review is, I suspect, quite considerable.

Let us take this issue of the interest of the non-execs in Peterborough and Cambridge. I do not know the area particularly well, but let us say that, because of the financial issues facing Peterborough, a decision was made by the cluster to reduce services in Peterborough and ensure that those patients then went into Addenbrooke’s. I suspect that might well be a proposal. The question arises as to the legitimacy of that decision if people in Peterborough think that they are being marginalised from that decision. That some bold decisions need to be taken I do not doubt, but I suspect that there will be some issues about legitimacy.

As for the issue of tiers, my noble friend Lord Warner is surely right. Since 1948, the health service has not done without a regional tier. The fact that the Commissioning Board is going to have to set up local field forces is a recognition of that, but they will have a heavy responsibility. The financial challenge, the reconfiguration challenge and the specialty challenge call for strong leadership at that level. My argument for the Minister is that they surely need to be accountable and seen to be accountable in their communities. I do not believe that in the end the mandate set by the Secretary of State or the outcomes framework really satisfies that kind of accountability, given that they are clearly going to have to intervene at local level and deal with issues to do with finance and reconfiguration.

I have listened to the noble Lord, Lord Mawhinney, when he advised me not to oppose that Clause 30 or 31 stand part of the Bill. I fully accept what he says. However, as the Minister has made clear, my Amendment 236A stands apart from that. It is a question of timing, and I do not believe that these changes should take place until we are sure that they are right. I beg leave to test the opinion of the House.

18:45

Division 1

Ayes: 170

---

Labour: 144
Crossbench: 16
Independent: 3
Bishops: 1
Liberal Democrat: 1

Noes: 202

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Conservative: 119
Liberal Democrat: 59
Crossbench: 16
Ulster Unionist Party: 2
Bishops: 1

18:58

Clause 30 agreed.

Clause 31 agreed.

Amendments 236AA and 236AAA not moved.

Clause 32: Fluoridation of water supplies.

Debate on whether Clause 32 should stand part of the Bill.

[Lord Hunt of Kings Heath]

My Lords, we come to a no less interesting subject than the issue of fluoridation of the water supply, which I know will be of interest to many noble Lords. I ought to start by declaring an interest as president of the British Fluoridation Society and, as someone convinced by the benefits of fluoridation, I want to ensure that those benefits continue in the future.

In 1964, Birmingham became the first UK city to introduce a water fluoridation scheme. By 1970, six years after its introduction, the number of teeth affected by decay in five year-olds had dropped by 46 per cent in a part of Birmingham, Northfield, as compared to those in Dudley, which fell by only 2 per cent. A report by the regional director of public health in 2006 found that children in fluoridated areas of the West Midlands with relatively high levels of social deprivation often had better dental health than children in relatively affluent areas where water supplies were not fluoridated. I am keen that progress continues to be made and that more areas are fluoridated in the future. The question before us is whether the arrangements in the Bill actually help or hinder that.

Under the new arrangements, it will be for a local authority, or local authorities, to make a proposal on fluoridation to the Secretary of State. If the Secretary of State agrees that such a proposal should be supported, the proposer must notify all other local authorities affected by the proposal and make arrangements as to how they should proceed. Regulations are apparently to be made on how local authorities might come to a consensus view.

An important question arises as to payment. The current 1999 Act provides a mechanism under which authorities can be made to bear the full cost of fluoridation. The Secretary of State can require the local authorities affected by arrangements made by the Secretary of State for the fluoridation of water with the water undertaker to meet the Secretary of State’s cost incurred under the terms of the arrangement. In the new situation that we have, I am concerned that the whole process of approval and funding of such schemes seems to be rather convoluted. I hope that the noble Baroness may be able to reassure me on this point.

The first key question is: will there be sufficient resources to meet the cost of existing or future fluoridation schemes? Local authorities do not, of course, provide dental services and they do not have dental service budgets to call upon; yet clearly the impact of fluoridation is to reduce tooth decay. If less money is spent on treating tooth decay, that money should be able to become available for other aspects of dental and oral health care. If local authorities do not have a direct interest in the cost of dental health care, will that be an impediment to the expenditure of money on fluoridation schemes? Again, it would be very helpful if the Minister could inform me as to her view on that as well.

At this stage, this is essentially a probing amendment to ensure that the Government are as committed to fluoridation schemes as I believe they ought to be. I see that the noble Earl, Lord Baldwin, is in his place. From my point of view, the evidence is convincing. It is important that if local authorities come to a view that they wish to fluoridate or to continue to fluoridate, the money will still flow as smoothly as the fluoride in the water in places that are lucky enough to benefit from water fluoridation schemes. I hope that the Minister can assure me.

[Earl Baldwin of Bewdley]

My Lords, I support what the Government are doing here, though with some reluctance, for reasons that will not surprise the noble Lord, Lord Hunt. I am reluctant for two reasons that lie at the heart of a fluoridation policy: the scientific evidence for it and the medical ethics. It will pay to revisit those briefly this evening.

It is now 15 years since I started putting down Questions to the Government, chiefly on the evidence surrounding fluoridation. In the late 1990s the previous Government conceded that the studies they relied on were old and not of very good quality. Sir Iain Chalmers, a leading healthcare scientist who was then director of the UK Cochrane Centre, joined me in pressing for a high-quality systematic review. The Government agreed. That review, which came to be known as the York review, was conducted by the NHS Centre for Reviews and Dissemination at the University of York. I served on its advisory board as it examined 50 years of the world literature. The results, published in 2000, surprised many people.

Not one good-quality study could be found. This meant that nothing could be stated with clear confidence: not efficacy in preventing caries—though that did appear likely—not safety, and significantly not the hoped-for evidence that fluoridation might even out the inequalities in dental health between social groups. So poor was the evidence for that question that the four senior research scientists who were involved in the review described it in a letter to Health Ministers at the time as “weak, contradictory and unreliable”.

I know from the previous amendment that it is dangerous to quote the noble Earl, but I was interested to reread the speech of the noble Earl, Lord Howe, on the regulations of the Water Act in 2005, and to read that he, too, was impressed by the lack of good evidence as shown by York. I emphasise that the York review was not just any old review—there have been plenty of those. This was a Rolls-Royce systematic review, conducted to the highest international standards, the only one of its kind in the field. A more recent Australian systematic review has been unable to find anything that would change York’s conclusions.

I wish I could say that this better understanding of the evidence had influenced policy. Having accepted York’s findings, through gritted teeth, governments have downplayed them and, at times, subverted them. For the past 10 years the York scientists, when they had the time to do so, and I have been trying to point people back to what the known evidence shows. In the face of deeply held beliefs, this has been quite an uphill task.

The question of ethics, which is my second objection, can be put in a nutshell. In our society, a person faced with a healthcare intervention is free to accept or reject it. This is the principle of individual informed consent. We find it in case law and in pronouncements from all kinds of medical bodies. Fluoridation is invasive and unavoidable. Therefore fluoride designed to protect teeth should not be delivered by this method. I could say much more, as indeed I have many times in your Lordships’ House, but now is not the time or the place. These twin objections, evidence and ethics, are what motivate most of the large number of people who oppose community water fluoridation.

Given, however, that such schemes exist, and that the Government are determined to provide for new schemes, how best should they be structured? I believe that what the Government are proposing here is a significant improvement on what went before. The old system where water companies had a veto over new schemes was clearly not ideal. Since the Water Act 2003, strategic health authorities have been in the driving seat. Curiously enough, the All-Party Group against Fluoridation that I subsequently chaired was given an assurance by Health Ministers in the previous Government that they would put elected local authorities in charge, as is now proposed. However, when it came to their Water Act, it did not happen.

The problem with the unelected SHAs was—is—that they almost inevitably reflected the dominant medical view. Fluoridation was a classic case of premature consensus, on weak evidence from the 1950s and 1960s, and it became a kind of sacred cow, resistant to new evidence, as I have indicated with the York review. The regional director of public health who advised the SHA that recently decided to fluoridate Southampton, against the expressed wishes of its population, described fluoridation correctly as the “professional orthodoxy”. Sir Iain Chalmers, who knows more about medical evidence than most people, has described it publicly as a “religion”.

A most unfortunate feature in all this is that so many prominent bodies should have signed up with the National Alliance for Equity in Dental Health as campaigners for fluoridation—not just supporters, campaigners. The website of the British Fluoridation Society shows the British Dental Association, the British Medical Association, the Faculty of Public Health Medicine, the NHS Confederation, the UK Public Health Association, among dozens of other such bodies, including some royal colleges and about 60 primary care trusts. If you have signed up to a campaign, not only are you compromised in terms of impartial advice but it is very hard to draw back. It is much easier to keep going forward with your professional peer group. And, if you are the people whose advice is being sought and heeded, there is likely to be only one outcome.

While fluoridation continues, these clauses may offer the least worst way forward. In parenthesis, referendums would show more clearly what local people want. There have been quite a number in America, but as they have tended to reject fluoridation the Government may be wary of them. Even here, to have your healthcare treatment decided by a majority vote of your neighbours is not a principle known to medical ethics. At least local authorities are accountable to the populations they serve and, while quite properly taking advice from all quarters, should be better able to gauge than the SHAs have been what is right for their communities. People should not have to accept what Big Brother, or rather Big Doctor, thinks is good for them. I broadly support these clauses, but the devil will be in the regulations.

I conclude by putting three questions to the Minister. First, will she consider providing for a neutral body to set out the current state of the evidence in any future public consultation? This was suggested by Iain Chalmers back in 2003. Some of the misstatements during the Southampton consultation were pretty terrible. Secondly, will she include in that a revision of the Chief Dental Officer’s guidance letter of February 2008 to decision-makers over fluoridation? I think that the noble Earl, Lord Howe, suggested to me that this would happen. Thirdly, will she give the undertaking, given by the previous Government during the passage of the 2003 Act and the regulations in 2005, that no new scheme will go ahead unless the local population is in favour? If so, will she ensure that any undertaking given—the noble Lord, Lord Warner, who is not in his place, was one who gave it at the time—will not be watered down in the regulations so as to lose its effect, as happened last time?

[Baroness Eaton]

My Lords, like the noble Earl, Lord Baldwin, I feel that there is an improvement in the fact that fluoridation of the water supply should be determined locally. Local authorities are democratically accountable bodies, and surely they are the best placed to make decisions on behalf of the local population.

My concern, not just about this section of the Bill but about the amendment of the noble Lord, Lord Hunt, is around consultation and the ethical issue, which we have already heard mentioned, about the fluoridation of water and what that creates. I would appreciate hearing whether the processes by which the public are consulted about the fluoridation of water could enable communities to reject proposals to do so.

Members of the public are very cynical about consultation. They believe that, whenever their opinions are requested by any public body, no one takes action based on those opinions. It is important that communities are consulted and that the results of those consultations are taken notice of. The effect of fluoride on teeth may be a matter for dentists, just as the effect of fluorides on the rest of the anatomy may be a matter for scientists or doctors, but the question of whether it is right to use public water supplies to convey to the entire population a medication that is intended to influence the bodily development of 0.4 per cent of the population—that is, children whose teeth are forming—is surely an ethical question. The views of water consumers should carry just as much weight on this matter as the views of dentists and scientists.

I would be grateful if the Minister could reassure the House that consultation as referred to will actually have meaning and that local authorities, consulting on the matter of water fluoride with the residents, should be bound by the results of such consultations. It appears that the Bill allows the Secretary of State to ignore the results of consultation. Would the Minister explain this and give examples of where she envisages the Secretary of State taking decisions that disregard the results of the consultation?

19:15

[Baroness Gardner of Parkes]

My Lords, when I saw that the noble Lord, Lord Hunt, was moving that this clause not stand part, I could not believe it—I thought that someone from Birmingham could not possibly be anti-fluoride. Having listened to him, I now understand what he is on about and that is a slightly different angle.

I am strongly in favour of water fluoridation. The noble Earl, Lord Baldwin, tells us that he has been tabling questions for 15 years, but the issue has been before this House for much longer than that. We had probably the bitterest debate I have ever seen in my life in the House in about 1983, following the Strathclyde judgment. Strathclyde is a place in Scotland—given the current Leader of the House, I suppose I hardly need say that—where the council introduced water fluoridation. Suddenly, decay in children’s teeth decreased by 40 per cent. Then local people got very upset and said, “We don’t want this; it’s poison and it’s terrible”. The fluoride was taken out of the water, and immediately dental decay went right back up again. A court case was brought—I have not read the decision because it is 400 pages long—and the court ruled that fluoride was not a poison in the water, and after that other authorities put it in. As I say, though, the debate here was very bitter, and I am pleased that those who have spoken against fluoridation today have not shown the same bitterness that we had at that time, when people almost got up off their death-beds to come in and oppose it.

There are a number of other points that I feel I must take up. The noble Earl, Lord Baldwin, was talking about the Australian comparison. I had an interesting visitor from Australia, the shadow Minister for federal health, or the federal Minister for shadow health—I think I have got that muddled up, but anyhow he is the opposition man on health. He was telling me that in Australia it has become very fashionable to drink bottled water, and they have found that people who are drinking that water are all getting dental decay back again, which again proves how effective fluoride is. I have a nephew who is a dentist in Sydney, and he tells me that he can tell if a boy has come from the country where all you would have to drink would be rainwater or water from a river—they come in with terrible teeth and you can spot them immediately.

The noble Baroness, Lady Eaton, asked whether this is medication, and what about pure water? At one stage I was very involved with the water supply for London. Thames Water explained to me that every drop of water that we consume has been used eight or 10 times before—it may be more now. So there is nothing pure about it. It is not straight out of the river or anything; it has already been treated again and again. None of us stops to think about the chlorine in the water. Where I live in Oxfordshire, you have to fill the kettle the night before because otherwise the smell of chlorine in the water coming out of the tap is too strong. Chlorine is also a great thing for swimming pools. The answer to the noble Earl, Lord Baldwin, the noble Baroness, Lady Eaton, and others who really do not want to consume fluoride is that it does not matter whether the water in your bath has fluoride in it; you can go back to bottled water and have the Australian experience, and see what happens to your teeth then.

I also have been asking questions for a very long time. One question that is highly relevant is: what is the difference between the decayed/missing/filled rate—that is the dental classification—between Birmingham, which has the best teeth, and Manchester, which has probably the worst? The difference is vast. When I have asked the further important question, “What’s the difference in their health? Is there a difference in the pattern of what people die from or what illnesses they contract in Birmingham?”, the answer is that there is no difference. There is exactly the same health pattern in both these areas, but the difference is that one has better teeth than the other.

I still have a few questions to ask the noble Baroness. For example, we keep using the words “operable” and “efficient” everywhere, and asking whether something is or is not operable and efficient. Who will decide whether it is operable and efficient and what sort of criteria will be used?

I also notice that, in Clause 32(9), new Section (3A) refers to the Secretary of State wanting to make the fluoride proportion lower than the general target concentration. The target concentration is one part per million, and when water is being reused it is often required to reduce it to one part per million. However, that is not what this clause says. The clause says that the Secretary of State might want to reduce it to below the optimal point, which puzzles me. I should like to know in what sort of circumstances the Minister envisages wanting fluoride in the water but also wanting to reduce it. I could understand it if the time came when it was proved that there was some problem. That could then be the case but, if it were, surely new and urgent legislation would be needed immediately. People complain that there is too long or too short a time in which to test something, but you could not really say that the period since 1964 is too short. It really has been tested for a very long time without ill effects on people’s health.

It is very important that these clauses are kept in. I hope that the money will be found, and I am not really worried about where it is found from. There are small children in Manchester, often from ethnic communities, whose first presentation to the dentist means that they have to go to hospital to have all their baby teeth taken out under general anaesthetic. That is just not good enough and could be prevented if fluoride was in the water there.

[Lord Colwyn]

My Lords, my noble friend Lady Gardner reminds me of how I used to practise. It is not a lot of fun to pull a load of teeth out for a child under general anaesthetic. We are in great danger of getting into a pro and anti-fluoride debate, which I do not want to do. However, I want to support the noble Lord, Lord Hunt, who is a patron, or vice-president, of the British Fluoridation Society, as am I.

As it stands, Clause 32 will mean that after 1 April 2013 the money currently spent on the existing NHS schemes will pass to local authorities, which do not have a dental budget. They would have to pass it on to the Secretary of State via Public Health England to pay the continuing bills. Would it not be more efficient and quicker if the current NHS spend on fluoridation went directly to the Secretary of State—that is, Public Health England? It would mean that the organisation that pays the bills has the money in its account and is not reliant on transfers from local authorities.

As the Bill stands, when any new schemes are agreed by local authorities after they take charge of consultations on fluoridation, the Secretary of State will look to them to pay for those schemes. However, local authorities are not responsible for dentistry and have no dental health budget. The amendment of the noble Lord, Lord Hunt, means that although local authorities will be the decision-making bodies in future, the money for any fluoridation schemes that they support will come from the dental health services budget of the NHS Commissioning Board—the body that stands to benefit from the reduced treatment costs that would inevitably follow. The NHS Commissioning Board would transfer funds to the Secretary of State, who would pay the bills submitted by the water companies. Does the amendment of the noble Lord, Lord Hunt, not simplify the process?

[Baroness Northover]

My Lords, let me first set out the Government’s position on fluoridation. The Government’s policy is that decisions on fluoridation should be taken locally. That is why we have transferred the responsibility for conducting consultations and determining their outcome to local authorities. More than 5 million people, mainly in the West Midlands and the north-east of England, receive a water supply in which the fluoride content has been topped up to a level of one part per million. Worldwide, some 200 million people now receive fluoridated water in the United States and 11 million more in Australia. There are also fluoridation schemes in Ireland, Canada and Hong Kong.

I hear what the noble Earl, Lord Baldwin, said about evidence. A report, A Systematic Review of Public Water Fluoridation, commissioned by the department of health at the University of York, was published in September 2000. It concluded that water fluoridation increased the proportion of children without tooth decay by 15 per cent and that children in fluoridated areas had, on average, 2.25 fewer teeth affected by decay than children in non-fluoridated areas. However, as the debate has shown, there is a great range of views on this matter. That is why we feel that decisions must be taken at a local level following extensive consultation.

Our view is that the responsibility for proposing fluoridation schemes and for conducting consultations on such schemes should transfer to local authorities, while the responsibility for contracting for fluoridation schemes should transfer to the Secretary of State. In practice, the Secretary of State’s functions would be carried out by Public Health England. Making local authorities responsible for consultations on fluoridation schemes fits well with their responsibilities for public health. We anticipate that proposals for fluoridation schemes will derive from the joint strategic needs assessments that local authorities and health bodies will make of their populations.

The noble Lord, Lord Hunt, raised the question of whether local authorities would neglect dental health. Dental ill-health would seem to have wider repercussions. The great difficulty, particularly among older people whose teeth have decayed, certainly bears out the necessity of preserving teeth in younger life. It is not simply a matter of looking at children’s teeth and the impact on them but of seeing dental health as lifelong. Health and well-being boards would therefore have a responsibility to consider dental health because of that significance.

More than one authority might be involved in any scheme that is put forward because water distribution systems are generally larger than the area of an individual local authority. The Bill sets out a number of initial steps that the lead or proposing local authority must take, including consulting relevant water undertakers and the Secretary of State to ensure that a proposed scheme is operable and efficient. Unless only a single authority is affected, or the other affected authorities do not wish to participate in the process, the Bill requires local authorities to arrange for a joint committee to carry out the consultation process and make subsequent decisions in relation to the proposal. From 2013-14, the department intends to allocate a ring-fenced public health grant to local authorities. The ongoing costs of fluoridation schemes will be reflected within the grant to those local authorities.

The noble Earl, Lord Baldwin, asked about neutral information. This is an area where we should proceed on the basis of evidence. Public Health England might well be the right body to assess such evidence. The noble Earl also asked about schemes going ahead only with the support of the local population. The provisions in the Bill transfer responsibility for consultations to local authorities and include powers for the Secretary of State to specify the steps that local authorities must take in relation to consultation. We expect that the evidence base will still determine a decision to consult. However, putting local authorities in charge of consultations would make decisions on fluoridation more democratically accountable. We intend to consult on the detail of the regulations, including the process that local authorities must follow when ascertaining public opinion.

My noble friend Lady Eaton asked whether people would be able to reject local fluoridation. Of course, consultation needs to be meaningful. The decision to consult and whether to fluoridate will be for local authorities, not the Secretary of State, to take. We expect them to take account of the scientific evidence as well as public opinion.

I acknowledge that these provisions and the whole area are complex. Much of the technical detail will be included in regulations. No doubt we will have further profound discussions of this. We intend to consult on the policy proposals for the regulations that we will make under the powers in this clause in a consultation document that we will publish in due course. In the light of this, I hope that noble Lords will be content not to move their amendments, and that the noble Lord, Lord Hunt, will be happy for the clause to stand part of the Bill.

19:30

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the noble Baroness, the noble Lord, Lord Colwyn, and the noble Baroness, Lady Gardner of Parkes, for their support for fluoridation. The noble Earl, Lord Baldwin of Bewdley, with whom I have very much enjoyed taking part in previous debates on fluoridation, put his points powerfully. I do not agree with him, but that is not the point at issue tonight. I certainly agree with the noble Baroness, Lady Eaton, that the transfer of responsibility from SHAs to local authorities is a key advance. Birmingham City Council took a decision in this regard in 1962, which had a very positive impact on oral health in Birmingham and led to a more general introduction of fluoridation through much of the West Midlands.

I note what has been said about the role of health and well-being boards in relation to oral health. That is important. I also note that the Government believe that this is a local matter. That is fair enough, but I hope that the Government will also take a somewhat more strategic role. It is for the Government to make the general point that improving oral health is a good thing to do and that fluoridation can play its part. I hope that in saying that this is a local decision, the Government will remain in support of the general principle of fluoridation.

On funding, I took the noble Baroness to mean that a part of the ring-fenced grant to be given to local authorities in relation to their new public health responsibilities will reflect the cost of fluoridation schemes in areas that currently have fluoridation. I hope that she will confirm that in writing. For instance, Birmingham City Council will get an additional grant because the water is being fluoridated. Taking that principle further, I assume that if Manchester finally decides to fluoridate its water schemes, the city council will then receive an additional grant. That is very important.

As regards the convoluted and complex basis of the legislation, it is hard to see how the money circulates. I will not press my opposition to this clause stand part debate but I hope that the Government will give a little more thought to whether they can come up with a rather more straightforward approach to how the money circulates. The present arrangement is rather complex. I am very grateful to noble Lords who have taken part in this debate.

Clause 32 agreed.

House resumed. Committee to begin again not before 8.34 pm.

Digital Technology

Monday 5th December 2011 Lords Chamber

Question for Short Debate

19:33

Asked By

[Baroness Greenfield]

To ask Her Majesty’s Government what assessment they have made of the impact of digital technologies on the mind.

[Baroness Greenfield]

My Lords, I am delighted to have the opportunity to introduce this timely debate.

We humans occupy more ecological niches than any other species on the planet. This is because our brains are superlatively evolved to adapt to our own particular environment: a process known as neuroplasticity. Thanks to their plasticity, the connections between our brain cells will be shaped, strengthened and constantly refined by our individual experiences. It is this personalisation of the physical brain, driven by unique interactions with the external world, that arguably constitutes the biological basis of each individual mind, so what will happen to that mind if the external world changes in unprecedented ways, for example with an all-pervasive digital technology?

A recent survey in the US showed that over half of teenagers aged 13 to 17 spend more than 30 hours a week, outside school, using computers and other web-connected devices. It follows that if the environment is being transformed for so much of the time into a fast paced and highly interactive two-dimensional space that is unprecedented, the brain will adapt accordingly, be it for good or ill, in unprecedented ways. Professor Michael Merzenich, from the University of California, San Francisco, gives a typical neuroscientific perspective. He states:

“There is a massive and unprecedented difference in how their (the digital natives') brains are plastically engaged in life compared with those of average individuals from earlier generations, and there is little question that the operational characteristics of the average modern brain substantially differ”.

The implications of such a sweeping change in mindset—let us call it mind change—must surely extend deep and wide into future education policy. Most obviously, time spent in front of a screen is time not spent doing other things. Indeed, several studies have already documented a link between the recreational use of computers and a decline in school performance. More basic still, though, is to understand in the first place why a screen environment using only sight and sound out-competes three-dimensional activities with all five senses stimulated.

Perhaps most important of all, we need to understand the full impact of the current cyberculture on the emotional and cognitive profile of the 21st century mind. Inevitably, there is no single catch-all soundbite but rather a variety of diverse issues. In the brief time permitted, let us look at just three. First, what is the impact of social networking sites on interpersonal skills and personal identity? Eye contact is a pivotal and sophisticated component of human interaction, as is subconscious monitoring of body language and, most powerful of all, physical contact, yet none of these experiences is available on social networking sites.

It follows that if a young brain with the evolutionary mandate to adapt to the environment is establishing relationships through the more sanitised medium of a screen, the skills that are so essential for empathy may not be acquired as naturally, as well or as quickly as in the past. In line with this prediction, a recent study from Michigan University of 14,000 college students has reported a decline in empathy over the past 30 years, which was particularly marked over the past decade.

Such data in themselves do not, of course, prove a causal link, but just as with smoking and cancer some 50 years ago, epidemiologists could investigate any possible connection. Similarly, the factors should be explored that account for the appeal of the cyberworld for those with already recognised impairments in empathy, typifying autistic spectrum disorders. What about exploring other coincidental trends for a causal link, such as the obsession with the solipsistic read-out of unremarkable moment-by-moment daily routines, for example through Twitter? The psychologist Sherry Turkle, from MIT, has argued persuasively in her recent book Alone Together that the more continuously connected people are in cyberspace, paradoxically the more isolated they actually feel. More worrying still is the tendency to define oneself by the amount of attention garnered online, particularly when excessive bullying, spitefulness and plain cruelty are used to enhance such attention, as with the pernicious trend of “trolling”. Might these phenomena, based as they are on the reassurance of incessant feedback, indicate a less robust sense of identity?

Secondly, on video games, I declare an interest as a patron of the charity Safermedia, and mention that I recently met representatives from the industry who are very keen to discuss the best way forward in the light of growing concerns. For example, neuropsychological studies suggest that frequent and continued playing might lead to enhanced recklessness. Perhaps this is not surprising as it is surely a dangerous lesson to learn that actions do not have consequences and that victims of a shooting can become “undead” the next time around. In addition, data indicate reduced attention spans and even possible addiction. In line with this, significant chemical and even structural changes are being reported in the brains of obsessional gamers that require at the very least wider discussion beyond the scientific community.

No single paper is ever likely to be accepted unanimously as conclusive, but a survey of 136 reports using 381 independent tests and conducted on more than 130,000 participants concluded that video games led to significant increases in desensitisation, physiological arousal, aggression and a decrease in prosocial behaviour. Needless to say this “meta-analysis” has itself been criticised, but then such is the iterative nature of evaluating research. This is neither the time nor place for an exhaustive review of the literature, but there should be a means for all these burgeoning scientific findings to be translated on a rolling basis into simple, jargon-free summaries which the non-specialist can readily access, evaluate, and, most importantly, question.

Thirdly, on search engines, can the internet actually improve cognitive skills and learning, as has been argued? The problem here is that efficient information processing is not synonymous with knowledge or understanding—a point well argued and supported by empirical evidence and summarised in, for example, Nicholas Carr’s book The Shallows. Even the chairman of Google, Eric Schmidt, has claimed:

“I worry that the level of interrupt, the sort of overwhelming rapidity of information—and especially of stressful information—is in fact affecting cognition. It is in fact affecting deeper thinking. I still believe that sitting down and reading a book is the best way to really learn something. And I worry that we’re losing that”.

We need to understand much more about the impact of search engines on comprehension skills. I suggest that the difference between processing and isolated fact, and understanding it, is the ability to place that fact into a wider conceptual framework that indeed gives it a meaning. Hence, the famous line from “Macbeth”—“Out, out, brief candle”—is powerful, not because of the literal image of a flickering flame but because the extinction of that flame can be linked to the extinction of life.

Conceptual frameworks can also have a time dimension: hence the meaning of an object or a person can be derived from how that object or person has connected to events and relationships in the past. This is why perhaps the characters in novels are compellingly meaningful in a way that an icon in a computer game is not. When you play a game to rescue the princess, you probably do not care much about her as a person.

Given the plasticity of the human brain, it is not surprising that adaption to a cyberenvironment will also lead to various positives—for example, enhanced performance in a variety of skills that are continuously rehearsed, such as a mental agility similar to that needed in IQ tests or in visuo-motor co-ordination. However, we need urgently to gain a much fuller picture.

I agree that the UK Council for Child Internet Safety—UKCCIS—already brings together more than 170 organisations and individuals from diverse sectors to keep children and young people safe online. However, much more is surely needed than minimising the threats. The time has come to start to maximise the opportunities. Whether it be through UKICCIS or some other co-ordinating organisation, or even a new mind-change initiative, I urge the commissioning of epidemiological studies exploring the significance of various societal and medical trends in relation to a screen-based lifestyle, as well as ring-fencing funds for basic brain research into, for example, the neural mechanisms of addiction and attention, the long-term effects of various screen-based activities on brain structure and function, and the neural processes perhaps underlying deep understanding and creative insight.

The design of truly innovative software that attempted to offset some of the perceived or agreed deficiencies arising from the current digital culture would also be enormously valuable. Most immediately we need more detailed profiles and breakdowns of computer use in the UK, along with surveys of the views and insights of various relevant sectors such as parents, teachers and employers, who until now have had no voice. Then finally, in the light of all this input, this hypothetical body would make recommendations for proactively planning the most effective environment. It might well include a root and branch, paradigm-shifting re-examination of education and subsequent training that best equips the citizen of the 21st century to be personally fulfilled and useful to society.

Currently, we are in an economic crisis, but this would be massively helped by innovative wealth creation, new types of jobs, new and more varied types of training for the growing numbers of unemployed school-leavers and possibilities other than a conventional university education whereby only one in 80 graduates can obtain an appropriate job.

Science and technology are transforming society. We have an extended life span and extended leisure time. Could not baby boomers who currently feel undervalued but have precious entrepreneurial and interpersonal skills be teamed up with the younger generations who are so adept at cutting-edge digital technologies, so that they could develop and commercialise unprecedented goods and services that neither group could conceive or produce unilaterally? Such a scheme could be brokered by the Government and funded by the companies currently dealing only with student loans—along with investment from the private sector. These ventures would be based on a comprehensive appreciation of not just how the future consumer will think and feel but on innovative ways for bringing real added value to them.

Like climate change, this transformational scenario of mind change is complex, unprecedented and controversial. However, unlike climate change, the end point is not one of just damage limitation but rather of ensuring that we deliver to the next generation an environment that can for the first time enable the realisation en masse of each individual’s full potential.

[Baroness Verma]

My Lords, I gently remind all noble Lords that this debate is time-limited and that Back-Bench contributions should be limited to five minutes.

19:45

[Lord Black of Brentwood]

My Lords, I am sure that we are all indebted to the noble Baroness, Lady Greenfield, for securing this debate, which is of huge long-term importance to our society. I had the pleasure of sitting next to the noble Baroness a year or so ago at a dinner for Autistica, which does such remarkable work in the field of autism, and I know from our conversation how passionately she feels on this subject. We are incredibly lucky that she has introduced this debate.

I should begin by declaring an interest as executive director of the Telegraph Media Group, as it is a company with digital technology at its heart. Perhaps more so than for any other sector of the economy, embracing digital is vital for the future of the media because the ways in which people consume and indeed participate in news in an online world have altered fundamentally in the past decade. News is now an active commodity to which people can contribute rather than just absorb. That is just one aspect of the way that the internet has changed people's lives—especially now that it is so easy to access.

Thanks to the decline in the cost of PCs and vibrant competition in the UK’s broadband market, digital technology is part of the life of at least three-quarters of the population. Of course, it is not just at home that people access digital technology. Smart phones, Androids, BlackBerrys and iPhones are increasingly finding their way into people's pockets, and 27 per cent of adults have one of these devices. Most importantly, 47 per cent of 12 to 15 year-olds have such a device. For them, digital technology is now intimately bound up with their daily lives. A survey in April this year found that this group spends an average of one hour 40 minutes a day online, which I calculate to be 10 per cent of all the time that they are awake. That is why this debate is so important.

The noble Baroness has talked rightly about some of the problems of this sea change in the way we live, but it is worth while reflecting on some of the positive contributions that can take place in a young person's development—and in particular on the impact of social networking sites, such as Facebook, MySpace and Bebo. These sites—and it is a characteristic of the internet in general—can be valuable in three ways. They are participatory, they force users to learn new interfaces, and they create new channels for social interaction.

A study published this year in Australia, The Benefits of Social Networking, found that these sites can in fact help deliver beneficial educational outcomes as well as facilitating supportive relationships and promoting a sense of belonging and self esteem. Of course it is vital that these sites are used responsibly, and there is a plethora of controls in place to underpin this. However, if that is done, social networking can help the flexibility of the mind and encourage the formation of political, ethical and cultural identities. Young people can also use such sites to access news in a way that they perhaps would not from a printed paper—and that is extremely useful in fostering an interest in current affairs and civics. All that is good for the mind.

The noble Baroness will be aware of a body of work undertaken by Steven Johnson in the United States that tracks the link between the increasing complexity of popular culture, including video games—mentioned by the noble Baroness—powered by new technologies, and the rise of IQ scores in the US over the past several decades, which he attributes to the development of critical thinking skills.

Perhaps even more important for us is the impact of digital technology on literacy. A report from the National Literacy Trust conducted among 3,000 pupils in 2009 found that 56 per cent of young people have a profile on a social networking site, and 25 per cent have their own blog. This compelling research shows that technology is important in offering a range of writing opportunities for young people. In turn, the trust reports a link between blogging and social media activity, writing ability and the enjoyment of writing. Young people who write on a blog are much more likely to enjoy writing in general than young people who do not—by a margin of 57 per cent and 40 per cent. About the same proportion also display greater confidence in their literary ability, believing themselves to be good writers. That was true across all socioeconomic classes.

The same goes for the enjoyment and understanding of music. The launch of the iPod in 2001 changed the way we listen to music and now delivers it digitally to 300 million users worldwide. That brings benefits beyond cultural learning. The Harvard University neurologist Gottfried Schlaug tells us listening to music has a neuroprotective effect which is again of benefit to the young mind. No doubt, there are many other examples.

This is a vital subject because it impacts directly not only on the health and well-being of young people but on the future direction of our society. I readily admit the problems and the unanswered questions, and I very much echo what the noble Baroness said about the importance of more research. However, it is important that this evening we take note of the positive advantages of digital technology and the role that it can perform in training young minds to think creatively and flexibly, in encouraging literacy skills and in fostering a sense of participation in society.

19:49

[Lord Alderdice]

My Lords, we are in debt to the noble Baroness, Lady Greenfield, for taking the opportunity to introduce this debate in your Lordships’ House. As the noble Lord, Lord Black, has indicated, there are very many positive things about cyberspace and the internet.

I, too, want to address some of the concerns to which the noble Baroness, Lady Greenfield, referred, coming from my background as a psychiatrist, and particularly perhaps as president of ARTIS (Europe) Ltd, a research and risk analysis company which takes an interest in terrorism and politically motivated violence. That is where I came from and how I got interested in this area. It became clear to me that a number of organisations, domestic and international, were using cyberspace as a new modality through which they could conduct their nefarious activities. Of course, we have had land, sea, air and, more recently, space as media or spaces in which to conduct conflict, whether it be terrorism or interstate conflict. However, it is quite extraordinary that for the very first time humanity has created a new space in which activities can take place. This is quite unprecedented.

Of course, we created space in our minds to do things but cyberspace is quite different. This is a space in which it is possible not just to conduct traditional kinds of crime and terrorism—for example, it is well known that a number of organisations use cyberspace to communicate with each other, to pass encrypted messages, to bring groups of people together, and to recruit and train young people in various kinds of terrorist activity—but where the possibility clearly now exists for state and non-state actors to engage in attacks on the very infrastructure of each other’s nations. This is happening at an extraordinary rate. Indeed, in a recent Written Answer, HL12997, the noble Lord, Lord Henley, informed us that the Office of Cyber Security and Information Assurance reckons that it is costing the United Kingdom alone in the region of £27 billion per annum.

Today, however, we are looking not at the economic but at the mental aspects of this issue. We all know that when we get behind the wheel of a car many of us behave in a different kind of way. Certainly, when we write e-mails we may react rather more emotionally than when we write a thoughtful letter. I see that the noble Lord is particularly careful, knowing that these things can appear in all sorts of places. However, if noble Lords cast their minds back to watching the so-called smart weapons in the shock and awe attacks on Baghdad, they will recall that it was an effort to remember that they were watching not a video game but the destruction of people’s lives. It is very easy to see how one can begin to think of guiltless crimes and victimless crimes. Indeed, if you speak with many of the young people—largely young men—who are involved in these kinds of activities, you will know that they feel that no one really suffers. Credit card crime? Do not worry; it is covered by the banks. However, we know very well that the banks are covered by the insurance companies and the insurance companies charge the banks, that the banks charge ordinary customers, and that, in the end, it is ordinary people who pay for the crimes of these young people. As the noble Baroness said, it is also clear that this affects how people function, and not just their mental functioning but their moral functioning.

It seems to me that in the short time we have at our disposal this evening all we can do is to flag up that this is a wonderful facility, as the noble Lord has done, but also a clear and present danger, as the noble Baroness has described. I trust that your Lordships, whether in the Chamber, in all-party groups or in other ways, will be able to explore this matter more fully. In the mean time, I ask the Minister whether he can indicate how much Her Majesty’s Government are spending on research into the psychology of this area, as distinct from the hardware and software. Psychology is, in the end, the most crucial aspect.

19:54

[Lord St John of Bletso]

My Lords, I join in thanking my noble friend Lady Greenfield for introducing this topical short debate. She is certainly best qualified to address the challenges for the mind, as well as the opportunities, from digital technologies. There is no doubt that the internet has totally revolutionised the way that we do business, conduct research, find entertainment and even socialise. However, in the face of the non-stop barrage of technology-induced stimulation, a key question on the minds of many parents, education authorities and scientists is how, and whether, this is affecting young brains.

My interest in this subject stems from having managed and run data centres, catering predominantly for the online gaming industry, and also, perhaps just as importantly, from being the father of four children aged between 12 and 16 who constantly, in their spare time, play games on their mobile telephones or on the PlayStation. What amazes me about their plugged-in life is that they end up multitasking, often doing their homework while instant messaging classmates, downloading music, texting their friends, surfing the internet and often conversing on Facebook. While there is a common perception that multitasking saves time, I was surprised to read that there is solid scientific research showing that dividing the brain’s attention between two or more tasks simultaneously has its toll on both performance and time.

The recent Nominet report The Impact of Digital Technologies on Human Well-being made it clear that it is important to understand the implications of our online life for our offline working. There is no doubt that with the dramatic changes in digital technologies there has been a scientific and neurological shift in the way that we process information, read, communicate and interact with each other. Our lives are so preoccupied with the effects of digital technologies, whether it be doing our e-mails or embroiling ourselves in the raft of social media applications, that our brains tend to lack much-needed downtime. I have very fond memories of four days that I recently spent on safari with my young children in South Africa, where we had no wireless connection, no internet connection and no television. Apart from the splendours of game viewing, we spent our time reading, exercising and having meals together without distractions. One major task that I have as a father is to get all my four children to sit down together when we have our dinner. What a pleasure it was to have spent that time together, and how necessary this is becoming in a world where digital technologies are causing us to be like hamsters on a treadmill. I do think that it is important for our brains to relax.

There is no doubt that the information explosion brought about by the internet and other modern technologies has had a hugely positive influence on society. The noble Lord, Lord Black, mentioned the impact on literacy. However, I believe that it is important for there to be more guidelines on the efficient and effective use of digital technologies. I have become increasingly focused as a parent on setting firm boundaries for my children, particularly on the time that they spend on the PlayStation. One of my concerns is that many parents are totally unaware of the nature of social media sites and are therefore ill equipped to monitor for potential problems, including cyberbullying, inappropriate content and addictive games. I am not an advocate of focusing on the negative impacts of digital technologies on the brain. Yes, video games tend to be addictive, and, yes, I believe—though there is no empirical scientific evidence—that technologies could physically change our brain and mindset.

I am rapidly running out of time. I believe that the noble Baroness, Lady Greenfield, has an important point about promoting youth employment. There is potential for job creation in this exciting era. I also believe that more resources should be directed towards promoting online education. In conclusion, it is important that we embrace the positive impacts; I hope the Minister will elaborate on what Government initiatives are planned to promote more research—possibly through Ofcom—in this important subject.

20:00

[Lord Lucas]

My Lords, I find myself on the optimistic side of this debate. Listening to the noble Lord, Lord Alderdice, reminded me of reading Socrates’s strictures on writing and the dangers of the spread of that new technology. Much of the activities that the noble Lord attributed to modern terrorists must have been in Socrates’s mind as he was thinking of what they could do now that they had this additional skill.

When I was young, the scare was television. It probably has not done us much good one way or the other: we are probably less healthy than we were; we are probably less good at concentrating and socialising. In that context, the internet, social networks and games are a great advance. To the extent that it has been demonstrated that they do good, they increase people’s performance in short-term memory. It has been shown that in some contexts, heavy users of Facebook are actually better at off-line relationships than people who use it less. There are also research papers that tend in the other direction. The overall picture, however, is one of a revolution which is, though frightening and fast, on average benign. I side with my noble friend Lord Black of Brentwood in saying that we are much better now at writing than we were 20 years ago. The world was full of reluctant letter writers when I was 30, and now it is full of keen e-mailers and bloggers. We do much more of it and we read much more of it. The effect on music—the appreciation and spread of music—seems to me to have been strongly positive.

The noble Baroness, Lady Greenfield, referred to the plasticity of our brains. That is indeed one of our great characteristics. We must therefore be conscious that any great change, such as what we are experiencing, may have effects of which we ought to be careful. As she said, we ought to be doing research into this, particularly meta-studies to give us a clear picture, because individual studies will always have a scatter of results. We ought to be doing proper meta-studies to really look at the questions raised by the noble Baroness. I hope she will be sufficiently piqued by Ben Goldacre to contribute to that process herself.

20:03

[Lord Addington]

My Lords, much of what I thought I would be saying that was original tonight has already been covered in the brief way we have charged around this debate. The noble Lord on the Front Bench seems to be indicating he has a similar problem. The one thing we can be sure about in the new digital world is that it has changed everything, and it has changed it faster than any of us has ever imagined possible, even 15 years ago. The whole level of interaction in a personal way has changed: people no longer natter obsessively on phones; they now exchange e-mails obsessively. As my noble friend Lord Lucas has said, the great demon that was television—indeed, independent television with adverts, which was the great bugbear of my youth—has now been accepted and gone beyond.

However, the noble Baroness and I did a little bit of digging online to discover a speech she made about a year ago which covered similar ground. In it, she pointed out that certain types of activity that offered immediate satisfaction from certain types of video game—particularly done for very long periods of time—affect the way our brains develop. That is not a big surprise to anybody who thinks about it for a second, because the way you use your head changes the way your body operates and learned responses go into muscle and brain. It is just there; it is not a big surprise. Anybody who has ever played a sport knows that you can change the way your reflex patterns go from the way you interact with people.

The problem here is that this may be something which cuts out other types of human interaction. I believe that was roughly what the noble Baroness was coming out with. Again, this is not a surprise. The question is—and my noble friend Lord Lucas pointed out the dangers—how worried should we be? How worried should we be about what it cuts down or what it takes away from us? The interaction is something we must be looking at. The issue of autism flies around anything that goes online now and there is a suggestion that we should worry, but we do not really know. That is one of the issues that come out here.

What are we going to do about it? I am afraid that the Government have either got to do the research themselves or encourage others to discover what is happening here. We are effectively putting out feet into a new pool. The change in activity and the volume of time spent is the great problem; it is not the fact that you actually play a game and destroy the aliens or the advancing hoards from some Narnia coming out from your screen. It is a problem if you spend hours and hours at a very young age doing that. That is the difference. Obsessive behaviour has consequences.

I do not knock the digital: I would not be able to write at all without digital help because I am severely dyslexic, so it has been a huge bonus to me in certain ways, and to many other people. Unless we can actually get at what is happening and take a realistic view of it, we are going to have some problems here. One thing we can be sure of is that new technology will encourage the fear-mongers and the panic buttons to be pressed and the wrong information will come out. We have to encourage people to look at this in a realistic and sensible way. Without that, interesting as the noble Baroness’s thesis is, as much attention will be focused on people who are saying, “I spend 43 hours a week online playing one game and it doesn’t do me any harm and, by the way, what month is it?” We have to have some interaction and study between those who use this and those who do not. Without this, we will merely carry on swapping opinions and not knowledge.

20:08

[Lord Stevenson of Balmacara]

My Lords, I thank the noble Baroness, Lady Greenfield, for securing this debate and other noble Lords for their contributions. I am not out of sympathy with the approach that was taken by the noble Baroness, Lady Greenfield. The internet has spawned a positive tsunami of innovation and that can be very unsettling as we try to make sense of it all. We now have access to devices, as other noble Lords have said, with immense speed, power and versatility. However, I shall make two observations. The first is rather banal and is that everything we do in one way or another, to some degree or another, reconfigures our synapses and the connections in and the shape of our brains. I am not sure what shape my brain will be in after I sit down following this short speech, but I know it will not be exactly the same as when I stood up.

The second point is a little more serious and follows other noble Lords who have mentioned that as well as the points on the one side, led off by the noble Baroness, Lady Greenfield, there is now increasingly some good research on the effect on children of playing some of these new and highly immersive video games. It finds many very positive effects in terms of teaching and in helping to develop improved problem-solving skills and other associated benefits.

As a parent of teenage children, I agree that there are some issues around potential addiction and overuse, but there is still far from a settled view on the causes or the effects, so we should proceed with care before leaping to any conclusions. In particular, as has been mentioned by a number of speakers, we have to be careful about fanning the flames of moral panic. I hope that the noble Baroness, Lady Greenfield, will forgive me if I mention some of the headlines that appeared after she raised some of these points on earlier occasions:

“Is mind change the new Climate Change?”—

that is relatively straightforward, and I think we could answer that one.

“Chilling warning to parents from top neuroscientist”,

and:

“Expert says browsing habits could lead to ‘temporary dementia’”.

Why is it temporary? Finally, and rather more alarmingly:

“Did video games make bankers more reckless?”.

I think the word “more” is the interesting one there. As has been said, we have had these moral panics before. They have been about writing—the noble Lord, Lord Lucas, reminded us about Socrates—and about Shakespeare. Why was the Globe built outside the City walls? It was because there was concern that audiences would be inflamed by the passions in his plays. There were moral panics about penny dreadfuls, early cinema films—which have been rather neatly recreated in Martin Scorsese’s latest film which shows some of the effects of early cinema on audiences—TV and video nasties, and now there is the internet.

To be serious, if the case being made by the noble Baroness is accepted and therefore we should be doing some research, who will do it and how are we going to evaluate it to make sure that we get the best out of it? I take from her introductory speech that at the very least we should be looking at the way in which it is alleged that empathy is declining, which would need some fairly large-scale epidemiological studies, and that video gaming has aspects that lead to aggression, attention deficit and addictive behaviours, so there would need to be some serious research on chemical and structural changes in the brain. If we also follow her line about the impact of search engines in changing the way we seek and store knowledge, we would obviously have to research how we acquire and store knowledge.

This is a very wide and quite intensive research programme so I have some questions for the Minister which I hope he will be able to answer when he responds. First, do departments currently have the capacity to carry out research on this scale? A quick look at the current research projects in DfE does not reveal anything in this area as far as I could see. Given that the budget is about £25 million and that it is likely to be the same next year, I think the Minister should share with us whether resources would be available if such a research programme was to be started. Secondly, by its very nature, this research would have to be collaborative and we would need to seek around Whitehall for partners and others to work on it. It would be interesting to learn from the Minister whether he feels that in the present scenario it would be possible to raise the funds for the sort of projects that might give us the answers we need.

Finally, as I am sure your Lordship's House is aware, the House of Lords Science and Technology Committee is currently carrying out a review of the role of departmental chief scientific advisers. There was an evidence session a couple of weeks ago. The committee has already established that there are 13 departments, including DfE, which have chief scientific advisers, which is a good thing, but in only two or three of them does the chief scientific adviser operate at board level. Mr Nick Gibb MP, a colleague of the Minister, said in his evidence on 23 November 2011 that Carole Willis, the chief scientific officer of DfE, is not on the board of that department and is not even a director-general. Given that Mr Gibb also said that his Secretary of State is particularly keen on ensuring that they have evidence for their policy, will the Minister explain how any research evidence that might be commissioned in this area would impact on policy given the low status accorded to the department’s CSA?

20:13

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, like other noble Lords, I start by thanking the noble Baroness, Lady Greenfield, for giving us this chance to reflect on the potential impact of digital technologies on the mind, and to take part in the wider debate for which she calls. As many noble Lords have said, the themes that we have discussed are in some ways not new. My noble friend Lord Lucas mentioned Socrates, who was worried about the invention of writing because he was afraid that people would,

“cease to exercise their memory and become forgetful”.

Well, we all worry about that. He was also concerned that people might,

“be thought very knowledgeable when they are for the most part quite ignorant”.

That seems to me an extremely strong argument in favour of writing.

At a later stage, people were worried about the development of the printing press, the translation of the Bible into English and the development of the television, as my noble friend Lord Lucas also mentioned. But because these concerns turned out largely to be misplaced, that does not mean that we should today be complacent about the important questions raised by the noble Baroness, Lady Greenfield—I think that there is agreement about that.

Before addressing some of the concerns that have been raised, it is worth reminding ourselves, as other noble Lords already have, of some of the benefits of technology. As we have heard, these benefits are educational, economic and social. So far as education is concerned, we know that technology can support good teaching and help raise standards. It can bring subjects to life, add whole new dimensions to learning and give pupils the chance to have access to the best content, lessons and lectures in the world. We know that the Khan Academy provides 2,700 high-quality micro-tutorials on the web. Anyone, anywhere can access those for free. Computer games developed by Marcus du Sautoy, a professor of maths at Oxford University, are enabling children to engage with complex mathematical problems that, before, people would have said were far too advanced for them. Those are benefits that we should not discount.

We know that, so far as more disadvantaged groups are concerned, having a computer to help with learning at home is associated with improvements of two grades in overall GCSE test scores. We heard earlier that the use of multimedia books in early reading can improve literacy in children. We know that technology can be particularly powerful for pupils with special educational needs, whether that is for those with a visual impairment or dyslexia, as my noble friend Lord Addington reminded us, or some other learning difficulty. The Echoes project is helping primary schoolchildren with autism experiment with difficult social scenarios. That is a positive. I know that concerns have been raised about autism in the context of digital technologies, but that is a good example of how digital technologies can come up with helpful ways forward for children with autism. Speech and language communication disorders would be another obvious area where technology can make a big difference.

We also know that technology is changing education through its potential to create better ways for seeing how children are doing. Teachers can now monitor how each student in a class is doing at the same time, then provide them with the amount of support that they need. Problems can be picked up earlier, and able pupils can be stretched. Technology can help with teacher-training so that teachers can more easily observe other teachers and learn more from them.

We have also heard some of the social benefits—for example, of social networking—from my noble friend Lord Black of Brentwood. I think of my 84 year-old mother, fairly recently widowed and living on her own in the countryside, being able to Skype her grandchildren wherever they are.

So far as the economic benefits are concerned, we have heard how technology has transformed the business world and led to the emergence of whole new sectors—the games industry, for example, and the developments in the media industry mentioned by my noble friend Lord Black of Brentwood, who reminded us of the extraordinary changes that we have witnessed in recent years. These are industries and new sectors where Britain is now a world leader.

What is also astonishing—and this is part of the case made by the noble Baroness, Lady Greenfield—is the speed with which technology has galloped ahead in such short order. When I left 10 Downing Street in 1994, I had a secretary who did shorthand. During the 1992 general election I had a mobile phone the size of a brick. By the end of 1994, with one exception—and he went on to become the Government’s e-Envoy—none of us working at No. 10 was connected to the internet. That was only the end of 1994, yet today, as we have heard, over a quarter of adults and almost half of teenagers now own a smart phone. Around three-quarters of homes are connected to broadband. Most of us—although not me—shop online. Two-thirds of five to seven year-olds use the internet at home, and 90 per cent of 12 to 15 year-olds. They are on it for quite a long time: five to seven year-olds use the internet for over five hours a week in a typical week; for eight to 11 year-olds, it is over eight hours; and for 12 to 15 year-olds it is over 15 hours.

Then, as we have heard, there are the viewing figures for the telly. Five to seven year-olds are watching an average of nearly 15 hours a week. That rises to over 17 hours a week for 12 to 14 year-olds. The amount of exposure which children and young people are having, whether to the internet or the telly, does raise questions.

If we accept—as I think has broadly been the case—some of the benefits of digital technologies, we also recognise that there are concerns. The noble Baroness, Lady Greenfield, raised a number of them: the risk of shorter attention spans; the loss of the ability to see an argument or take on information in a broader context; and substituting virtual relationships for real ones, increasing the risk of atomisation.

My noble friend Lord Alderdice also raised the important issue of cyberspace being used for terror activity and state sabotage and the effect that it could have on moral decisions distancing people from the consequences of their actions. We could also add: the lack of downtime and relaxation, as the noble Lord, Lord St John of Bletso, reminded us; the risk of sexual exploitation of children; and—a point which has not been raised today—the risks of obesity caused by a sedentary life.

If those are some of the potential downsides, what evidence do we have? A number of points have fairly been raised about the research base of the evidence that exists. As I fear is often the case, the evidence that I have had drawn to my attention seems largely mixed and does not enable me to draw clear and decisive conclusions of the sort that noble Lords would find helpful. We know that in 2007 the previous Government asked Professor Tanya Byron to look at the risks that children face from the internet and video games. Her review also touched on some of the issues raised by the noble Baroness, Lady Greenfield, today. Professor Byron found that the impact of technology on children depends on a number of biological, psychological and social factors, which meant that it was difficult to generalise about the impact of technology on particular individuals because each person’s background and context varies considerably. It seems that a sensible perspective on children and technology would need to take account of differences in age, experience and stage of development.

Earlier this year, Dr Paul Howard-Jones of Bristol University, who was involved in the Nominet research to which reference has been made, carried out a review of what the field of neuroscience has found regarding the implications of using interactive technologies for young people—for their brains, behaviours and attitudes. He highlighted the need to understand the specific uses of technologies in a specific context rather than to label particular technologies, or technology, as good or bad. He found, for example, that existing forms of online communication for supporting existing friendships are generally beneficial for their users. He also found that some technology-based training can improve working memory and that others can provide mental stimulation that slows cognitive decline. Some types of gaming can improve visual processing and motor response skills. However, the review by Dr Howard-Jones identified three potential risks for children—namely, violent video games; excessive use of technology having negative physical or mental impact or interfering with daily life; and the use of games and some other technology at night leading to sleep problems.

The Government agree it is important that children should access only content that is appropriate to their age and that they should not be exposed to violent video games, which is why we support the statutory use of pan-European games information age ratings that should help parents to supervise their children’s use of technology and video games. About four in five parents already put in place rules on internet use, and I have learnt that the noble Lord, Lord St John of Bletso, does so in relation to his children’s use of gaming.

It seems that excessive video game-playing can be an issue for some people and that it could have an adverse impact on attention levels and well-being or even interfere with people’s daily lives. We know that there is some evidence that playing violent video games is associated with aggression, although the link to actual violence is less clear, which reinforces the importance of age restriction. I think it is true that parents and teachers will also want to be careful that certain technologies are not providing a distraction to children focusing on the task in hand, but I have not been shown robust evidence that technology use does cause issues like ADHD.

We have not seen research that shows there is evidence that the prevalent use of digital communications by teenagers is directly damaging brains. Findings suggest that using the internet to maintain relationships can improve social connectedness and well-being, but we need to be aware of the risks from cyberbullying and inappropriate content. We are working with the UK Council for Child Internet Safety, the Child Exploitation and Online Protection Centre and the 170 other organisations mentioned by the noble Baroness, Lady Greenfield, to provide advice and guidance to parents, schools and young people about how to stay safe online and work with industry to improve their products and services.

We are grateful for the opportunity to debate this issue. I am grateful for all the contributions that have been made during this debate. It is clear that extensive use of technology is having an impact on us all, and I think there is broad recognition that while technology brings us many opportunities and benefits that we could not have imagined only a few years ago, we should be aware of potential risks and issues, especially around e-safety or excessive use unbalancing people’s lives.

On the important question of research raised by the noble Lord, Lord Stevenson of Balmacara, and my noble friend Lord Addington and others, we are not aware of an extensive evidence base on negative impact from the sensible and proportionate use of technology. This may be an area that the UK research councils will wish to explore, and I am told that they have these issues firmly on their agenda. We will look at any new research that is published and approach it with an open mind, and I will take on board the points raised by the noble Lord, Lord Stevenson of Balmacara, about research.

It is easy to see the benefits of new technology, but the noble Baroness is right to remind us that we must not be blind slaves to the power of novelty. As in so many things, there is a balance to be struck; and just as any technological revolution can lead to great progress, so it always also leads to unexpected problems, to which we must indeed always be alert.

20:26

Sitting suspended.

Health and Social Care Bill

Monday 5th December 2011 Lords Chamber

Committee (10th Day)

20:34

Clause 33 : Effect of code

Amendments 236AB and 236AC not moved.

Clause 33 agreed.

Clauses 34 to 36 agreed.

Clause 37 : After-care

Amendment 236B

Moved by

[Lord Patel of Bradford]

236B: Clause 37, leave out Clause 37 and insert the following new Clause—
“After-care
(1) Section 117 of the Mental Health Act 1983 (after-care) is amended as follows.
(2) In subsection (2)—
(a) after “duty of the” insert “clinical commissioning group or”,(b) omit “Primary Care Trust or” in each place it appears,(c) for “such time as the” substitute “such time as (in relation to England) the clinical commissioning group or”.(3) After subsection (2C) insert—
“(2D) Subsection (2) above, in its application to the clinical commissioning group, has effect as if for “to provide” there were substituted “to arrange for the provision of”.
(2E) The Secretary of State may by regulations provide that the duty imposed on the clinical commissioning group by subsection (2) above is, in the circumstances or to the extent prescribed by the regulations, to be imposed instead on another clinical commissioning group or the National Health Service Commissioning Board.
(2F) Where regulations under subsection (2E) above provide that the duty imposed by subsection (2) above is to be imposed on the National Health Service Commissioning Board, subsections (2D) and (2E) above have effect as if references to the clinical commissioning group were references to the National Health Service Commissioning Board.
(2G) Section 272(7) and (8) of the National Health Service Act 2006 applies to the power to make regulations under subsection (2E) above as it applies to a power to make regulations under that Act.”
(4) In subsection (3)—
(a) after “section “the” insert “clinical commissioning group or”, (b) omit “Primary Care Trust or” in each place it appears, and(c) after “means the”, in the first place it appears, insert “clinical commissioning group or”.(5) In consequence of the repeals made by subsections (2)(b) and (4)(b), omit paragraph 47 of the Schedule 2 to the National Health Service Reform and Health Care Professions Act 2002.”

[Lord Patel of Bradford]

My Lords, I believe that I speak with some authority in proposing this amendment as a former chair of the Mental Health Act Commission and one who has worked for many years as a practitioner, manager and researcher in the field of mental health. Many noble Lords are also familiar with the particular needs of those with mental health problems and we have already debated some of the key issues and omissions in the Bill with respect to mental health. Although the noble Earl has been understanding and generally supportive, we have not yet seen any movement by the Government on issues such as ensuring parity between physical and mental illness. I sincerely hope that we will see some movement with respect to this clause because I am in no doubt that it will have the effect of reducing the quality of service and safety to some of the most vulnerable people in our society, those who have been detained under the Mental Health Act.

On the surface, Clause 37 appears quite reasonable. It seeks to amend Section 117(2) of the Mental Health Act 1983 in order to transfer duties that currently sit with the PCT to the newly created clinical commissioning groups. Section 117 concerns the provision of aftercare services. Aftercare services for this extremely vulnerable group of patients are absolutely vital. They consist of a range of services in a single care package. Some examples are visits from a community psychiatric nurse, going to a day centre on a regular basis, befriending and support services and having medication, counselling and supportive accommodation.

Everyone with mental health needs is entitled to a community care assessment to establish what services they might need. However, Section 117 of the Mental Health Act at present goes much further and imposes a duty on both health and local authorities to assess and provide aftercare services to patients who have been detained under a variety of sections from the 1983 Act. That means that these agencies are under a joint duty to provide aftercare services free of charge until both NHS and local authority commissioners agree that the service user is no longer in need of such services.

However, the real problem here—and it is a serious one—is that Clause 37 does more than transfer these duties to the clinical commissioning groups. In effect, it significantly alters these duties so that the protections currently afforded by the Mental Health Act are greatly weakened. Separating the statutory responsibilities between CCGs and local authorities in the manner proposed by Clause 37 will allow one agency to decide to end the provision of services without notice or consultation with the other agency or even the patient. The duty established by Section 117 of the Mental Health Act was applicable to the ongoing care of roughly 18,000 people discharged from detention in hospital last year alone. I should point out that this included over 3,700 people discharged on to a community treatment order, thus making a total CTO population of approximately 6,000 people. People on a CTO can be required by law to accept forms of treatment and care that amount to aftercare, and they equally deserve and need the protections currently afforded to those patients leaving hospital.

There are three things about Clause 37 that concern me most. First, it removes the duty of co-operation on delivering aftercare services between the health service, the local authority and the voluntary sector. Secondly, it turns what is currently a free-standing duty into a gateway provision, which will restrict the scope and effect of aftercare services. Thirdly, as a consequence of this, it provides a back-door route by which aftercare services for detained patients will become chargeable.

I will start with the duty of co-operation. Clause 37 has the following effects. First, with respect to Clause 37(2)(c), (e) and (f), the joint duty to provide aftercare services is split between health and social services authorities. Each can separately decide when to withdraw its own services without requiring the agreement of the other. Secondly, at line 8, page 73 in Clause 37, CCGs will no longer be under a duty to arrange aftercare,

“in co-operation with relevant voluntary agencies”.

I am sure that my noble friend Lord Adebowale will say more on that subject. This is not about general health responsibilities or duties. It is about fundamental recognition of the impact of being detained under the Mental Health Act. For example, on leaving hospital after a prolonged period of detention, a person is likely to have lost their accommodation and will be in need of somewhere safe and appropriate to live. They are also most likely to be feeling very vulnerable and low. During their period of acute illness they may have offended or alienated family, friends and neighbours. They may be particularly vulnerable to abuse as a consequence of the stigma of having been detained and, while they may certainly be recovering, they will not be better. They remain in need of treatment whether through medication, counselling or both.

None of the after-care services that they will need will be effective on their own. These services work and thus prevent readmission to hospital or worse because they are joint and co-ordinated, which means that neither authority can unilaterally decide to remove an element of their after-care package without the agreement of the other. Most importantly, they are also required to work collaboratively with the voluntary sector on these arrangements. This means that a local authority cannot decide that it can no longer afford to provide the funding for supported accommodation in the voluntary sector and unilaterally decide to withdraw from the arrangements. In the current economic climate, it seems to me that that scenario would become likely if the clause is passed as part of the Bill in its current form. It is absolutely certain that there will be greater scope for dispute between the various authorities and the voluntary sector, which will be left ultimately responsible at the end of the day. We need think only of the burden of the expenditure cuts in health and social services to realise that that will be the case, as both CCGs and local authorities seek to restrict their services. The patient will be left to play piggy in the middle, and it is often the patients, their carers and their families who will suffer the most.

My amendment would retain the joint duty on CCGs and social services authorities. It would also ensure that CCGs continue to arrange for provision of services under Section 117 of the Mental Health Act, in co-operation with relevant voluntary agencies. But it is not just the potential loss of co-operation and shared responsibility for care that is at stake here. My other two concerns are with respect to the fact that the current protection afforded by the duty to provide after-care services is a freestanding duty. Clause 37 fundamentally changes this. First, it states that CCGs’ duty to commission health care services will be limited to services of a kind that must be provided under Section 3 of the NHS Act 2006 or may be provided under Section 3A of the NHS Act. This removes the clear and unambiguous responsibility on PCTs and local authorities to provide appropriate after-care services.

The current wording of the clause has the effect that the duty to provide after-care falls only on CCGs and, as such, will be only for health services, not social care services. By definition, after-care services must go beyond those provided by health alone, as they involve all the things I have already mentioned with respect to picking up your life after being detained—housing, counselling, befriending and advice, alongside the traditional health treatments and support. The wording is insufficient to ensure that these protections continue, and it clearly alters the nature of what was a freestanding duty to make it a gateway provision.

Secondly, Clause 37 states that Section 117 will be treated as a duty under Section 3 of the NHS Act 2006 and will be provided under the same duties as other healthcare. By removing the freestanding duty and making duties to provide after-care for detained patients the “same duties as other healthcare”, Clause 37 opens the way for charging for after-care services. For example, a potential effect of the clause is that it would allow for means-tested charging for such services as care home fees. They are currently exempted on the grounds that having detained a patient the state owes something of a reciprocal duty to provide after-care and that charging for such services would therefore not be acceptable. I spoke of this at Second Reading, when I reminded the House of the judgment made in this very issue in the Stennett case before the Appellate Committee of this House. Let me remind noble Lords of this landmark judgment more fully.

The exact case concerned Manchester City Council and two other councils, which appealed High Court rulings that they could not charge for the residential care of patients who had been discharged into such care from detention in hospital. Mr Stennett was one of those three patients. The judgment was made on 25 July 2002. In essence, the case established that Section 117 established a freestanding duty to provide after-care and that, as it contained no charging provisions, no charge should be made for after-care under that section, including for the provision of residential accommodation.

The argument that this was in fact a gateway provision, whereby other statutory protections would be triggered was completely rejected by the appellate court. I hope that the noble and learned Lord, Lord Steyn, will forgive me for paraphrasing his judgment in the case, but in essence what he said was that if it had been the intention of Parliament that Section 117(2) of the Mental Health Act would be a gateway provision, by which other statutory provisions were triggered, it would have specified what those provisions were. More importantly, if it were a gateway provision then it would require appropriate wording. The noble and learned Lord, Lord Steyn, said in summary that,

“Section 117 is free-standing. It imposes a duty on the authorities to provide the after-care services and to continue to do so ‘until such time as . . . the person concerned is no longer in need of such services’”.

If I am not mistaken, I believe that the noble and learned Lord, Lord Mackay of Clashfern, was part of the panel of judges that agreed with that judgment. The importance of this being a free-standing duty is that the relevant authorities are required to sort out the funding for the package of aftercare between them.

Furthermore, one of the greatest issues in ensuring that aftercare services are effective is securing the agreement and co-operation of the patient. This is known to work best when aftercare services are free and seamless. The current protections afforded by Section 117 represent best practice for vulnerable patients with mental health problems as it ensures that there is a joint support with a package of integrated services. The requirement that, once in place, this joint package of care cannot be broken without everyone's agreement means that patients are more likely to get access to the services that they need for as long as they need them. My amendment seeks to ensure that the arrangement of services by CCGs under Section 117 is not limited to services arranged under Section 3 or Section 3A of the NHS Act, by deleting the proposed new subsection (2E). In addition, the amendment will ensure that the duty on CCGs will not be regarded as a duty under Section 3 of the NHS Act. This means that it remains a freestanding duty under Section 117 of the Mental Health Act.

I am grateful to the Law Society and to Mind, which have helped in preparing briefings on this amendment and the key issues at stake. In addition, the Law Society has obtained independent legal advice on the specific implications of the current wording of Clause 37, which leaves me in no doubt that my concerns about this aspect of the Bill are justified. It is clear to me that the impact of Clause 37 would be to make a very vulnerable group of patients more likely to fall between the gaps created by the confusion and scope for dispute that it will create. Moreover, it strikes me that removing this protection goes against the ethos and promise of this Bill, which is for more, not fewer, integrated services. The joint duty on health authorities and local authorities to provide health and social care, coupled with the fact that Section 117 is a freestanding duty to provide aftercare, effectively prevents either health authorities or local authorities charging for such services. I believe this to be necessary and a vital protection for this vulnerable group of patients.

I sincerely hope that the Minister will see the necessity of this amendment and agree that it seeks to ensure that vital protections for some of these patients remain in place. Most importantly, I hope that he will accept that this House should not allow the possibility of charging as an unintended consequence of this change in statutory wording. Clause 37 reverses that ruling by the House’s Appellate Committee—or has the potential to do so—by taking such matters as domiciliary care, not directly linked to health provision, out of the scope of Section 117 of the 1983 Act. This potential reversal would appear to have been suggested without the matter being debated in Parliament at all. For that reason alone, surely the current clause cannot stand. I beg to move.

[Lord Adebowale]

My Lords, I support the amendment in the name of the noble Lord, Lord Patel of Bradford. I should first declare my interest as the CEO of the social enterprise, Turning Point, which provides mental health, substance misuse and LD services.

When I looked at this clause, I wondered whether there was malice aforethought but I was reassured by the civil servants that that is not the intention. I know full well that the Minister’s intention is always to be helpful. I understand that it was not the intention of this clause to wreck a partnership between health and social care that has been around since 1983 and has ensured that detained patients obtained an appropriate care plan, provided by a joint duty requiring PCTs and local authorities to work together to provide aftercare. I think that this clause was an attempt to tidy things up in some way and to provide clarity.

However, I should warn the House of the consequences of such a tidying-up exercise on the lives of detained patients. The current arrangements effectively hide the wiring about who pays and any debates on their provision of aftercare. There was a statutory curse on both the local authority and the NHS, should they fail to sort it out, which in effect has ensured that people who are detained get the care and support that they need on departure.

More to the point, experience tells me that the removal of this duty creates the very real possibility of one or other of the parties refusing to pay, thus leaving the client in an expensive limbo. The really worrying changes suggested in the clause refer to the fact that CCGs will no longer be under any duty to arrange aftercare in co-operation with relevant voluntary organisations. Furthermore, the clause goes on to state that CCGs, due to commission healthcare services, will be limited to services under Section 3A, effectively meaning—as set out by the noble Lord, Lord Patel—that health services only may be provided, thus opening up patients to funding disputes about whether they get care, and if so who pays.

There are other worrying suggestions in this clause that give cause for concern and that open up the possibility, as the noble Lord, Lord Patel, has pointed out, of charging for the services of aftercare. The question I would put to the House is: who is charging whom? Who pays under these circumstances?

In the excellent briefing provided by the Royal College of Psychiatrists, Mind, Rethink, the Centre for Mental Health and the Mental Health Foundation, a scenario was set out which I want to put to the House, because it illustrates the reality. We often debate these clauses in the absence of their real impact upon real people.

Mr B had a diagnosis of schizo-affective disorder and was unable to read or write due to also having a learning disability. He had a history of being detained under the Mental Health Act and of being discharged with Section 117 aftercare packages and then withdrawing from services in due course as his situation improved. However, as is often the case, he would then relapse and be returned to hospital. His aftercare package comprised a care worker from his community mental health team, who spent about two hours per week helping Mr B with paperwork—such as housing, rental and other benefits and community appointments—and the community psychiatric nurse, who administered medication. On health grounds, the health authority decided that the community mental health team support was to be withdrawn, but made no provision for further support with paperwork or appointments. Without that support, Mr B could not manage his tenancy, bills or get to his GP for his medication; he would certainly have relapsed quickly and stayed in a relapsed position, costing the state, the health authority and social care far more. There had been no recent reassessments of Mr B’s needs by social services and they had not agreed to the withdrawal of any services.

With the help of an advocate, Mr B was able to argue that Section 117 aftercare was his right and should not have been withdrawn without the agreement of social services. As a result, the support was left in place, he won his argument and social services agreed to review his needs before any further decision was made. That is the result of what we currently have in place. Remove that, and Mr B does not have those rights and is left in limbo.

This clause creates a gap through which not only Mr B will fall, but many others. It also places many services in the not-for-dividend and voluntary sector at risk of sudden withdrawal of funding, as has been pointed out by the noble Lord, Lord Patel. My own services, some of which we have raised finance to fund, will be at immediate risk. I would not be in a position to continue those services; they will not be available for people leaving detained services and therefore the care will not be available. I urge the House and the Minister to do everything necessary to retain the current certainty for Mr B and for many like him.

[Lord Alderdice]

My Lords, I support the amendment of the noble Lord, Lord Patel of Bradford. The Minister will know well that one of the many attractions of the Health and Social Care Bill for me is the lengths that it goes to in order to try to achieve some degree of integration between healthcare and social care, and indeed integration of various other kinds. For the most vulnerable of all patients, not only physically but mentally and socially, who are at serious risk, such integration of healthcare and social care is of enormous importance—something that I know well from my own experience.

It is surprising to me that in this clause it is as though we are going in the opposite direction. Instead of healthcare and social care being integrated, they are being separated out. I rather suspect that the noble Lord, Lord Adebowale, is right: while in previous clauses the criticism from the other Benches has been that too much complexity is being introduced into the system, on this occasion the attempt to simplify things may actually be the problem. It may have seemed that it would be good to get clarity and give the responsibility to one side or the other, but the care of those who are mentally disturbed to the degree that they are a risk to themselves or someone else and therefore have to be detained cannot be accomplished by either one side or the other, either healthcare or social care; they need to be working together.

I appeal to the Minister to look at this question again. I do not think anyone suspects there is any malice aforethought in this. The clause is rather complex, referring to lots of other pieces of legislation, and it may merit being looked at again in order to ensure that those who have been cared for up until now by a more integrated approach will not in any way lose out from the change that is proposed.

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak to Amendment 237, a probing amendment concerning independent mental health advocates, in my name and that of my noble friend Lady Williams. It concerns Clause 40 of the Bill. The scheme for independent mental health advocates was introduced into the Mental Health Act 1983 by the 2007 Act, and came into force in 2009. Under the legislation, the responsibility was that of the Secretary of State, and, under the regulations, commissioning was to be job of PCTs.

Mental health advocates fulfil an important function. They act as independent advocates experienced in mental health matters to provide qualifying patients with help and advice. Qualifying patients are those who are liable to be detained, who are subject to guardianship and who are community patients, and patients can qualify in some other circumstances. The help involved can include help and advice on: the provisions of the legislation; the conditions and restrictions to which such patients can be subject; importantly, the mental treatment that they are receiving or are likely to receive; why it is being given; and their rights in connection with it. The right also involves a right to help and advice on visits and, importantly, a right for the advocate to inspect the medical records of the patient.

The point to which the amendment is directed is that, under Section 130A of the 1983 Act, subsection (7) introduces an element of discretion because regulations may make different provisions for different circumstances and cases. That may be unexceptionable as it stands, but the difficulty is that there is a concern when the Secretary of State’s function is transferred to local social services authorities. The amendment raises particular concern about the position of minors, and seeks to ensure that independent mental health advocates must be made available to minors who are qualifying patients. Minors who are also mentally ill are in the worst possible position to speak for themselves and to seek help independently. Therefore, we invite the Government to respond with an indication of how, after the transfer of functions to local social service authorities under Clause 40, they intend to monitor the working of the independent mental health advocate provisions; and to ensure their provision, particularly to this very vulnerable class.

21:00

[Baroness Barker]

My Lords, I shall speak to Amendment 237A, which is in my name. The justification for this legislation is that it does three things. It enshrines the Government’s stated policy that health services should be built around patients and that all decisions about patients should be taken with them. No decision about me without me: that is the phrase that we have heard. The second justification is that the Bill empowers clinicians and local authorities to commission health services that meet the needs of all groups in the population and reduce health inequalities. The third justification is that the Bill will enable the National Health Service to deal with the pressure on it because of demography and increased longevity among the population by being more efficient and more effective. Those are the justifications for the Bill. It is with that in mind that I go back to a discussion that many noble Lords here this evening had at considerable length during the passage of the Mental Health Act 2007. We were all on different sides of the Chamber then, which is not a point to be missed, I suspect.

The amendment seeks to include in the decision whether someone should be placed under a community treatment order—a compulsory order, as alluded to by the noble Lord, Lord Patel of Bradford—an assessment of whether someone who is suffering from mental illness may yet have capacity to make a decision about their treatment. To put it in lay terms, someone may be ill but still retain sufficient insight into their illness to make decisions about their treatment and in particular about whether they should be subjected to compulsory treatment. It is a similar, although legally slightly different, test of capacity to that in the Mental Capacity Act, with which noble Lords will be familiar.

It is the same provision that occurs in the Mental Health (Care and Treatment) (Scotland) Act 2003. Without going back over the ground that we covered in much greater depth in 2007, when the Scottish authorities prepared their legislation, unlike the Government of the time in England they did not simply go around a lot of different jurisdictions throughout the world where there are variants of community treatment order, pick elements that they liked and put them together. They went through a long and considered process, looking at how to bring their concept of a compulsory community treatment order into being. They did so with a greater degree of protection for people who might end up in effect being subjected to treatment against their will indefinitely. They included this concept of impaired decision-making within the Act.

Why should we revisit this decision? I was about to say that it was made by this House but it was not. This House agreed that we should include the concept of impaired decision-making; it was another place that removed it. The simple answer is statistics. When we debated what was then just a theoretical proposition that there would be community treatment orders, we were repeatedly assured by the then Government that they would be applied to only a very small group of people. Noble Lords will remember that it was envisaged at that time that there would be a few hundred people who were routinely referred to as “revolving door patients”—those patients who were in and out of acute care.

What has happened? In the first year of operation, 4,000 people—not 300—were put on to community treatment orders. There are now 7,000 people on them. I admit that we are still only a few years into the programme, but the number suggests that, first, the law is being much more widely applied than it was ever envisaged that it would be and, secondly, that practitioners are taking a precautionary approach to putting people on to compulsory treatment. In short, I suspect that a number of practitioners decide that the consequences of taking somebody off a community treatment order are potentially so hazardous to those practitioners that they are keeping people on indefinitely. That means that the situation that some of us foresaw whereby people were put on to community treatment orders from which they are unable ever to escape is happening. That seems to me to fly in the face of all the underpinning principles of this Bill.

At a time when we know that the resources of the National Health Service are going to be stretched and put under pressure in a way that they never were before, putting people on to treatment orders that they may not need is wrong. We know that lots and lots of people out there are suffering various degrees of mental distress, particularly those for whom their mental distress is not sufficiently serious that they are subject to compulsion, who desperately wish to get themselves into treatment and to see counsellors and therapists but cannot. Why take our already stretched resources and apply them to people who may not need them? I think that is wrong.

Why is this measure included in the Bill? I think it is unlikely that we will have a major revision of mental health legislation for some considerable time. In fact, there is a very good reason why we probably should not do so in that significant changes in mental health legislation happen not quite once in a generation but over a very long period when treatments and therapies have developed. Therefore, as I say, I do not envisage that we will have a major revision of mental health legislation for some years. However, I do not know whether that will be the case as I am not party to the Government’s proposals in that regard.

In the mean time, it appears that we are going to subject thousands of people to treatment that may be wrong—the only people in the country who are subjected to medical treatment against their will. It seems to me that we cannot let that carry on without looking at it in considerable detail. I suspect that the Minister is unlikely to want to go into this area at this stage, but if he cannot accept this amendment can he give a commitment that the issue will be kept under review and that we will return to it at some stage even though another large piece of mental health legislation may not be forthcoming?

[Baroness Meacher]

I apologise to the Committee and to the Minister for not being present in these debates. However, I cannot resist supporting the noble Baroness, Lady Barker, on this issue, which, as the Minister knows, we debated at length when the Labour Party was in government. I, for one, strongly supported the idea that people leaving hospital should not be put under a community treatment order, most particularly if they are no threat to others, are competent, can give consent and can make rational judgments. Large numbers of people under community treatment orders suffer with depression and the only persons at any risk at any time are themselves. At a time when we so strongly support the principle of autonomy and the right to some control over medical treatment in general, it feels completely inconsistent to throw all those principles away in this one area and say, “No, doctor knows best. Whatever you say and however competent you may be, you have no right to make a decision about the treatment”.

Having said that, I understand Ministers feeling very concerned about having the same principles apply if someone might—if they become unwell again—be a real, serious and major risk to other people. Therefore, my plea to the Minister is that he gives serious consideration at least to those who are no risk to anyone else, because the noble Baroness, Lady Barker, is right to say that while these provisions are on the statute book it is almost impossible for doctors not to impose these community treatment orders or for them then to rescind them because, if something goes wrong, they will be in the most appalling trouble. I will say no more but I wanted to add a strong voice to the comments of the noble Baroness, Lady Barker.

[Baroness Murphy]

My Lords, it will be no surprise for you to hear me say that I support all the amendments in this group. I do not really understand the need for the change in Section 117 on aftercare provisions. I am not quite sure what the tidying up is about or what the matter is with the existing arrangements. They are complicated to deliver but nevertheless seem to be utterly essential in the way in which they are currently framed. I would need to be convinced that there was some serious reason for changing them, as they apparently will be in the Bill.

As I understand it, we did not struggle with the provisions on independent mental health advocates during the proceedings on the 2007 Bill. While it is thought that parents could take the place of advocates in negotiating treatment, the proposals for independent mental health advocates for children are important in adding to the quality of services, and I support that.

The major thrust of my support relates to the amendment in the names of the noble Baroness, Lady Barker, and other noble Lords. It is my fervent belief that one day we will look back in this House and be horrified at how we structure our mental health legislation. The fact that we do not have legislation on capacity-based decision-making seems to be a terrible tragedy and is extraordinary, given that we see in Scotland that it is perfectly capable of being implemented safely. We should be at the forefront of developing legislation that destigmatises mental health services and allows people to make their own decisions about treatment.

We will have to wait a long time for that, but this amendment focuses on something that many of us predicted would be overused, and I regret to say that it is all too obvious that it is being overused for the wrong people. Yes, there are some people for whom community treatment orders should be used, but if we had legislation for capacity-based community treatment orders we would still be able to implement them safely. I strongly support the noble Baroness’s amendment.

[Baroness Hollins]

My Lords, I support these amendments. I was president of the Royal College of Psychiatrists when the Mental Health Bill was passing through this House and I remember listening to and reading the debates with great interest. I know that noble Lords on the government Benches, including the noble Earl the Minister, at the time very much supported capacity-based legislation. It works well in Scotland, but what was anticipated here would happen has happened—far too many people are subject to community treatment orders who know what they are doing and are no risk to themselves or to others. It would be good if it were possible in this Bill to make a change on this issue that made sense.

21:15

[Baroness Finlay of Llandaff]

My Lords, I in no way want to detract from the debate that has already taken place, and I am grateful to the Committee for allowing me to speak now on my opposition to Clause 51. I appreciate it, although I realise that it is in many ways unrelated to the very important debate that we have just had. Clause 51 relates to medical examiners, to the changes in the coronial system introduced through the Coroners and Justice Act, and to the change of placement for these medical examiners, given that PCTs will no longer exist.

Medical coroners are being phased out, in part due to concerns about their difficulty in handling complex cases in court. However, legal coroners have difficulty in making crucial, and sometimes far more common and more far-reaching, decisions on whether to open an inquest and whether to question medical reports. The recent BBC Radio 4 “File on 4” programme on the variation in the adequacy of inquiries in NHS inquests criticised several coroners, none of whom was a medical coroner.

Every jurisdiction needs medical input to support a legal coroner, but the introduction of medical examiners per se is not without its problems and is not straightforward. Local authorities have made it clear that they do not want to take over this role. They are concerned that it will be more expensive at a time when they have no capacity to increase investment. They are also concerned about how this burden will be funded and that the need to raise the money directly will be viewed as a death tax by their local population, which will be politically unacceptable. The cremation certificate fee of £147, which is paid directly to the clinician signing the form but is currently taken from relatives as part of the undertaker’s fee, raises about £40 million per annum across the country. That is only for cremations, which make up 70 per cent of all funerals.

There is a need for transparency over the fees, and that is to be welcomed. However, there are real concerns about how local authorities will decide to raise this money and what they will do about debt recovery if people are unable to pay, and about the various models of medical examiner that will be put forward and how the fees to support them overall should be collected. There is also uncertainty about whether there will be a national medical examiner. There is a need for a national medical examiner to ensure the quality and competence of examiners, who are likely to be retired GPs who have to be trained in coronial law and in the importance of judging decisions according to the requirement to ascertain causation and not to breach a duty of care. There will also be a need to ensure that an examiner is available within 24 to 36 hours so that families can proceed with rapid burial arrangements and not delay them. The current coronial officer capacity is already very stretched, and there is concern that examiners would have a conflict of interest if they were recruited from local general practices or trusts.

There is also real concern over the pilots of the new death certificate processes, which are showing delays in the role of the new medical examiners of up to four or five days, with mortuaries being stretched, undertakers being concerned that funerals are not happening as quickly as they should be, and a general backlog.

I hope that in response to my questioning of Clause 51, the Government will recognise that there is a need for the Department of Health to get together with the Ministry of Justice as the new chief coroner is appointed to make sure that a group looks at this issue in detail before proceeding further with the rollout. The system should be examined in the light of the chief coroner, in the light of what the local authorities find acceptable, in the light of how the costings are worked out, and in the light of the pilots, which are raising, rather than allaying, concerns. As I said, I am grateful to the Committee for allowing me to speak, as a matter of convenience, on Clause 51 at this point.

[Baroness Jolly]

My Lords, I wish to add something on Clause 51 stand part. I am sorry that it is not where we expected it, but that is absolutely fine. We are in a place of unintended consequences, because without a PCT there is no home for this particular service. Also, post-Shipman, there is a need for sharpening up clinical governance on death certificates. Therefore, there is no disagreement with any of that, but the unintended consequence is that local authorities have a serious problem in that, as I understand it, funeral directors no longer wish to be a part of the mix, so local authorities are being tasked with implementing a system in which something will have to be collected—somewhere in the order of £150 per certificate to cover the costs. The call for the system to be set up came in 2009; the previous Labour Government asked us to look at regularising the system of certification of deaths not only for cremations but for burials. It was to be revenue-neutral, which poses another problem for the local authorities.

The timing of this for somebody who is bereaved is really difficult. If you lose somebody, you can neither bury them nor have them cremated without the death certificate. Being charged something in the region of £150 could be really awkward, difficult or maybe even impossible. If they paid into an insurance plan, it will not have paid out; after a few days, probate is just not in the right place at all. I would like the Minister to consider two things. First, the cost is anticipated to be somewhere between £40 million and £60 million. I cannot think of anything else on which the taxpayer actually pays for the collection of government data. I would like the Government to consider whether it is appropriate to pass on these fees when certificates for births, marriages and deaths are currently less than £20. Secondly, failing that, would my noble friend commit to working with the Department for Communities and Local Government and the Ministry of Justice to devise a sensitive system that does not call for a sizable payment up front on collection of the death certificate? They should pay attention to the pilot data alluded to by the noble Baroness, Lady Finlay; the pilots are not running absolutely smoothly.

[Baroness Thornton]

My Lords, what links the two parts of this debate are the unintended consequences and the need for second and third thoughts about things. My noble friend Lord Patel, the noble Lord, Lord Adebowale, and the noble Baroness, Lady Hollins, expressed concern about this clause. That is frankly good enough for me. It has been suggested elsewhere in the way of things that some enthusiastic civil servants, in the process of tidying up this Bill, have actually brought about what could be serious unintended consequences. The noble Baronesses, Lady Murphy and Lady Barker, also have some important points to make about the amendment in the name of the noble Baroness, Lady Barker. This House spent many hours constructing the architecture through the Mental Capacity Act and the Mental Health Acts, not all of it right. I do, however, remember the duty of co-operation being an important part of those Acts; those rights, protections and duties are very important and we need to check that we have not damaged them through the construct of this Bill.

On Clause 51 stand part, we on these Benches are pleased to support the important amendment put down by the noble Baroness, Lady Finlay, about the problems that might occur when the responsibilities of primary care trusts for the certification of deaths are transferred to local authorities. I do not intend to read out the whole of this note because the noble Baroness, Lady Jolly, has referred to most of it, but we are very concerned that these proposals will mean delay and an increase in cost when people are at their most vulnerable and least able to withstand that. I do not think that anybody in this House would want that to happen. I suspect that the Government would not want to place in jeopardy the trust and confidence in the system as it is, and I think there is a danger that Clause 51 does that. We on these Benches support the amendments in this group.

[Baroness Northover]

My Lords, noble Lords have spoken passionately about the need to support patients who are particularly vulnerable. These are complicated areas, and I am happy to write to noble Lords to clarify what is intended in the Bill and to address their specific questions if I do not answer them in what I say here.

The Bill makes a number of essentially consequential amendments to the Mental Health Act 1983. The Government are also taking the opportunity to remove a few redundant powers and to make a small number of changes to that Act. That is the intention. This is not a major shift; these are meant to be tidying-up changes. However, if they have unintended consequences, it is important that they are flagged up, and I hear what the noble Lord and other noble Lords said.

The principal changes are the change in the responsibility for commissioning independent mental health advocates from the NHS to local authorities and the change in the requirement that a second opinion must be given even where patients on supervised community treatment consent to their treatment. This condition does not apply to patients who are detained in hospital and is contributing to the major difficulties that the Care Quality Commission is experiencing in managing the second opinion appointed doctors service.

The Government are also taking the opportunity afforded by the Bill to make a number of changes to the Section 117 of the 1983 Act. The first amendment in this group, which was tabled by the noble Lord, Lord Patel of Bradford, addresses that. The main change is to transfer the duty on primary care trusts to commissioning consortia, but the clause also takes the opportunity to align the duty in Section 117 more closely with mainstream NHS legislation. That is the intention. For example, it gives the Secretary of State the power to make regulations that say which consortium is to be responsible in any given case. That will allow us to end the current anomaly that sees some PCTs responsible for Section 117 aftercare for patients whose other needs are the responsibility of a different PCT.

Regulations could also say that, in particular circumstances, the NHS Commissioning Board is responsible rather than the consortium. That would allow us to prevent consortia ending up having to commission services that are normally commissioned by the board just because the patient happens to qualify under Section 117. The noble Lord, Lord Patel, spoke very persuasively about the need to avoid this clause having unintended side effects, and I can confirm that that is certainly not the Government’s intention. I am very happy to meet the noble Lord to discuss these issues further.

On co-operation with the voluntary sector, we need to consider consistency with other services that CCGs will commission in order not to give in some way a distorted picture of when CCGs should work closely with the voluntary sector. Nevertheless, I am happy to have further discussions on this point.

On charging, which is clearly a significant concern of the noble Lord, the Bill does not change the current situation. Patients will not have to pay for any care under Section 117. I hope that I can reassure the noble Lord on that point.

The second amendment in this group was tabled by my noble friend Lord Marks and is about access for children who come under the 1983 Act to the services of an independent mental health advocate. Section 130C of the Mental Health Act 1983 already gives the same right of access to such an advocate to all qualifying patients, including children. Making special provision for minors might give the impression that other qualifying patients should have lower priority for access to such services. Our aim is that every vulnerable person who comes under the major provisions of the 1983 Act and wants the support of an advocate should have one. That should, of course, include every child and young person, but it should also include everyone else as well. The current law not only supports the aim of this amendment in respect to children but does so for all vulnerable people of all ages.

21:30

Thirdly, Amendment 237A, tabled by my noble friend Lady Barker and others, seeks to make a further and very significant change to the 1983 Act. It would introduce a new criterion of impaired decision-making into just one of the areas which that Act covers, that of supervised community treatment. Many of your Lordships will recall the much more extensive debates on this subject both in your Lordships’ House and in another place during the passage of the Mental Health Bill in 2006. Such a change would potentially have wide-ranging impacts on the working of the Mental Health Act and would need careful and detailed reconsideration. At that time, the proposal was to introduce the criterion for detention under Part II of the 1983 Act as well as for SCT. Introducing it for SCT alone would run the additional risk that those with less insight could benefit from SCT while those whose decision-making was not impaired could continue to be kept in hospital.

We feel that it is too soon after the debates of 2006 to be making more major changes to the 1983 Act. Although I was not directly involved in those debates, anybody who was in this House could not but be aware of them. I certainly was. It was a very controversial area. I hear what my noble friend and others have said and I assure my noble friend and others that we will continue to review this. In fact, all government Bills receive post-legislative scrutiny within five years of receiving Royal Assent. I can confirm that we will be doing this for the Mental Health Act 2007 next year, so we will be reviewing the Act shortly, although we do not expect any further legislation on this topic in the imminent future. Nevertheless, I commit to the review, and we will then have to see what happens as a result of that.

I hope that noble Lords will in due course be prepared not to press their amendments in these areas. I hope that we can continue to discuss the areas where there may be unintended consequences so that these can be addressed.

[Baroness Barker]

I understand entirely my noble friend’s response to my amendment. I am very pleased with that. No doubt I and other noble Lords will spend at least part of 2012 making sure that we hold the Government’s hand to the flame on that review. I wanted to respond to what she said about the amendment in the name of the noble Lord, Lord Patel of Bradford, which I very much support. The first scenario that the Law Society and others were trying to probe in that amendment was one where it was unclear whether or not a patient came under the auspices of a CCG. The second was what would happen if a CCG decided not to commission a particular type of service—for example, some kind of psychological therapy—and it did so independently and not in discussion with the social services authority. I was not clear from the noble Baroness’s answer whether in her discussions with the noble Lord, Lord Patel, she would be covering both those eventualities.

[Baroness Northover]

My Lords, I am happy to cover both those eventualities in the discussions. Moving on to Clause 51 concerning death certification reforms, this amendment to the Coroners and Justice Act 2009 places responsibility for the appointment of medical examiners and related activities on local authorities in England instead of the PCTs. The Government are committed to implementing the reforms of the process of death certification set out in the Coroners and Justice Act 2009. These are important and long overdue reforms, which will involve a medical examiner providing an independent and proportionate scrutiny of cause of death in all cases not investigated by a coroner. The reforms will improve the quality of information on cause of death, increase transparency for bereaved families, and strengthen local clinical governance and public health surveillance arrangements. As your Lordships will be aware, these reforms form part of the response to the recommendations of the Shipman inquiry and, of course, the noble Baroness played a key role in taking these changes through.

The clause moves responsibility for the appointment of medical examiners from PCTs to local authorities and makes similar changes to the arrangements for performance managing and funding the medical examiner service. This change is needed because of other provisions in the Bill which will abolish PCTs from April 2013, despite the quote that was made earlier. Establishing the medical examiner service in local authorities should enhance the availability and accessibility of important public health information and intelligence. It will also align the service with other existing local authority responsibilities, including coroner and registration services.

I now turn to the fee payable for death certification, which, clearly, is a very difficult and immensely sensitive issue. Many people, including my noble friend Lady Jolly, have questioned whether there should be a fee at all and whether the state should pay for certification of death. It is the Government’s policy in line with the proposals set out by the previous Government in 2009 that the medical examiner’s independent scrutiny and confirmation of cause of death stated on the certification should not result in an increase in costs. It is also important to remember that the payment of the fee is already the case as regards the 70 per cent of people who are cremated, with this fee forming part of undertakers’ fees.

The current economic situation means hard choices are inevitable and the need to ensure that certification of death is cost neutral is one of those challenges. With regard to how the fee is paid by individuals, I am aware of the problems. Let me make it clear: it is neither the Government’s desire, nor intention, that this fee should be paid upfront. We would like to come to a solution that fully recognises how difficult a time this is for families and we do not want to add to the heavy burden which is felt at such a time.

As such, we have already started discussing with stakeholders and others how to arrive at an appropriate method for payment of fees. We will be consulting fully on this topic and want to hear the full range of views before making a decision. Given the sensitivities, if any Member of the Committee would like to discuss these issues further with me or officials, we would be very happy to take that forward. In due course, I will move that this provision stands part of the Bill.

[Lord Patel of Bradford]

I am very grateful to the noble Baroness for her response. I am particularly grateful to noble Lords who have contributed on the amendment standing in my name. We have had the benefit of the huge expertise and experience not only of the voluntary sector but of eminent psychiatrists who understand what happens to patients detained under the Mental Health Act. We should not simply ignore those views or brush them under the carpet. My problem is that we have heard a number of times in this Committee that, “Such-and-such is not an intention of the Bill, and the new arrangements will ensure that quality and outcomes are the prime drivers in decision-making rather than cost or expediency”. No doubt that is what is intended, but as we all know, the road to hell is paved with good intentions.

This is not a technical issue, or an issue that can be left alone in the hope that matters will resolve themselves and things will work out. This is about a fundamental principle of law that seeks to protect the vulnerable. The noble Lord, Lord Adebowale, gave a perfect example of what happens to real patients. If we cannot act now in the best interests of those who cannot speak for themselves by virtue of being detained under the Mental Health Act, who are by definition vulnerable and dependent on the state to make the right choices for them, then I do not know what we are doing here today.

The amendment tabled by the noble Baroness, Lady Barker, exemplifies why we have to be very careful about decisions that we make for this group of patients—the unintended consequences could be enormous. It is wonderful that the Minister said that the Government will review this next year. That is welcome. However, how many more lives will be ruined in the next 12 months? We have made mistakes in the past and we continue to make them. In terms of this amendment and Section 117, the danger with simply moving forward and saying, “This will be okay—that is not what we intend”, does not sit comfortably at all.

My amendment is very simple: it will ensure that CCGs and social services authorities continue to have a joint duty. I cannot see why we should not insist that CCGs and local authorities should have a joint duty in relation to this very vulnerable group of people. It will ensure that the joint duty includes maintaining co-operation with relevant voluntary agencies. We are asking the voluntary sector, “Please take over services and help us deliver”, and all the rest of it. Why can we not maintain the co-operation that exists?

The amendment will also ensure that the duty remains free-standing, as was the clear intention of the Appellate Committee of this House, so that aftercare services are not limited to other provisions but can actually meet the patient’s needs. By doing so it ensures that patients who have been detained under the Mental Health Act and require aftercare services do not find themselves having to pay for those services.

The noble Baroness said that there is no intention regarding payment. However, I think that I gave enough examples in my speech to show why I think that will be challenged. I am not a lawyer or an expert on these things but I did look at the judgment. What is interesting about the judgment that was given way back in 1999—when we did not have austerity measures and there were plenty of resources—was that, on three occasions, three local councils tried to force four people detained under the Act to pay for aftercare services. They had three different appeals. By the time they got to the fourth appeal in this place, one of the patients had died. That emphasises my point about how long people have to wait. If they were trying to charge then, what is going to happen now when we are desperate for resources in health and social care? People are really going to be pushing this.

I am afraid that that does not hold water for me at all. I tabled this amendment in good faith but I am concerned that clauses in this Bill will clearly have unintended and detrimental consequences. We chose not to reject this Bill out of hand under the rightly justified position that it is the proper place of this House to amend and improve legislation through a robust process of scrutiny. I believe that my amendment is the right and proper way to correct the Bill and to prevent significant harm arising.

[Baroness Northover]

I did not directly address the Stennett case and I must do so. The Stennett case indeed makes clear that such services have to be provided free of charge and the Bill in no way overturns that. It does not challenge that. What comes under Section 117 remains as it was—what is provided by it is still free of charge. This does not in any way challenge the Stennett conclusion.

[Lord Patel of Bradford]

The clause actually says—again, I am not a lawyer; I am looking at this in layman’s terms—that you do not need to have this consultation. As the noble Lord, Lord Adebowale, said, Mr Bloggs could then leave hospital and receive some accommodation, daycare and counselling through the health service, but the local authority could then decide unilaterally to say—as it can—“Right, the daycare and the accommodation have gone. We are not going to pay for them”. It does not even consult the patient or the CCG. It can do that. The legislation states that. The clause says that local authorities can do that now. It is okay.

We are being foolish if we think that local authorities or CCGs are not going to opt out of this where they can. They will opt out of providing bits of services. The voluntary sector will be lumbered with them. It will be told to pick up the tab, but organisations such as Turning Point do not have the resources to pick up the tab.

[Baroness Northover]

I repeat my invitation. The noble Lord makes a cogent case. I invite him to come into the department and make that case. I am saying that his worries are ill founded, but if he is right and there are things that need to be done to ensure that the case that I am making is indeed watertight, please will he help us to do that?

[Lord Patel of Bradford]

The noble Baroness is almost as persuasive as the noble Earl. I gratefully accept the invitation, and I am sure that the noble Lord, Lord Adebowale, will also be very happy to sit with officials. Like I say, I do not think for one second that the department is being malicious. There are some unintended consequences that are worth exploring further to see if we can make this legislation better. I beg leave to withdraw the amendment.

Amendment 236B withdrawn.

Clause 37 agreed.

Clauses 38 and 39 agreed.

Clause 40 : Independent mental health advocates

Amendment 237 not moved.

Clause 40 agreed.

Clauses 41 and 42 agreed.

Amendments 237A not moved.

Clause 43 : Role of the Board and clinical commissioning groups in respect of emergencies

Amendments 237B to 238 not moved.

Clause 43 agreed.

Clauses 44 and 45 agreed.

Clause 46 : Primary care services: directions as to exercise of functions

Amendment 239

Moved by

[Baroness Thornton]

239: Clause 46, page 80, line 2, at end insert—
“( ) In exercising functions under subsections (1) and (2), the Secretary of State must set out how the performance of the Board in relation to these functions will be managed, and how the Board must agree any arrangements for provision with the appropriate Health and Wellbeing Boards.”

[Baroness Thornton]

My Lords, this small group of probing amendments concerns itself with primary care services and the directions that would provide for those primary care services. I will briefly outline each of the amendments and ask the Minister's reactions to them.

On Amendment 239, if directing the board to exercise the Secretary of State’s functions relating to the provision of primary medical services, the Secretary of State must set out how the performance of the board in relation to these functions will be managed and how the interaction with the appropriate health and well-being board will occur. How will that be supported and how will it occur?

On Amendment 239ZZA, the Secretary of State may not direct the board to exercise the Secretary of State’s functions in Section 114 of the 2006 Act, which relates to dental services and the provision of accommodation. Amendment 239ZZB is very similar. It relates to ophthalmic services. Amendment 239ZZC relates to pharmaceutical services. The Clause 205 stand part debate relates to the list of performers of pharmaceutical services and particularly addresses the question of how the Government would intend to support the provision of community pharmaceutical services in the future through the Bill. That is another probing amendment.

I want to hear what the Minister has to say about how local services being commissioned nationally will work in terms of relationships with the health and well-being boards and in terms of the provision and support of community pharmaceutical services. I beg to move.

[Earl Howe]

My Lords, Amendment 239 raises the issue of performance management of the board. Noble Lords will recall the debate on Clause 20, in which I sought to reassure the Committee that new Section 13A of the National Health Service Act 2006, introduced by Clause 20, already enables the Secretary of State to specify the manner in which he proposes to assess the performance of the NHS Commissioning Board. It is not appropriate to set out performance management processes in respect of each and every direction issued to the board by the Secretary of State. I agree about the importance of the NHS Commissioning Board developing its commissioning responsibilities in a way that complements and supports other local health and social care commissioning, as the amendment proposed by the noble Baroness seeks to ensure. As I have indicated previously, the NHS Commissioning Board will be under a duty to have regard to joint health and well-being strategies. It would confuse lines of accountability and would actually be unworkable if we forced a duty on the board to agree with the health and well-being boards on how it will deliver its functions. I hope very much that your Lordships will agree that it is right that health and well-being boards do not have a right to veto plans for the provision of those primary medical services, which the Secretary of State has determined are necessary for patients. The NHS Commissioning Board will also have responsibility for commissioning primary dental services, primary ophthalmic services and pharmaceutical services.

Directions from the Secretary of State—usually of a technical or administrative nature—are currently made to primary care trusts and others in respect of primary care services under existing powers in the 2006 Act. So the provisions in this part of the Bill are not new powers; they are replacement powers adjusted to reflect the new organisations created by the Bill. These amendments would remove essential administrative and operational flexibility to enable those primary care services to continue to be provided efficiently and effectively for the ultimate benefit of patients. I realise that they are probing amendments and that the noble Baroness has no intention of pressing them, but clearly they are not appropriate.

Clause 205 enables regulations to be made that require the board to prepare, maintain and publish performers lists of pharmacists and pharmacy technicians on the abolition of primary care trusts. It replaces those provisions of the 2006 Act that currently relate to fitness to practise for pharmaceutical services performers. It also amends the Act so that, where a performer of local pharmaceutical services is included in a local pharmaceutical services performers list, they can be automatically included in an assistants list of performers and vice versa. We have yet to take a view on implementing performers lists for local pharmaceutical services performers and for those who assist pharmaceutical contractors in the provision of pharmaceutical services. We expect to do so during the coming months. In the mean time, this clause is needed to ensure that, if we do decide to introduce them, the primary legislation will adequately enable this.

The noble Baroness asked how, logistically, the board will manage approximately 8,300 GP contracts. We recognise that the NHS Commissioning Board could have difficulty in appropriately managing primary medical services contracts throughout England without help. The proposals to establish a significant field force as part of the board’s establishment will assist, but it will remain the case that the board’s ability to undertake this task will be enhanced if it can utilise the important local expertise and knowledge that will be available to the clinical commissioning groups. We have put in the Bill an explicit duty for all clinical commissioning groups to support and assist the board in securing continuous improvement in the quality of primary medical services. That is in new Section 14R in Clause 23. Alongside this, direction-making powers in Clause 46—

[Baroness Thornton]

The Minister mentioned field forces that will help to make this work, and I can see that that will almost certainly be the way to do it. But would there be an intention to have expertise in each of the different areas or across the piece? The Minister does not need to answer the question now; he can write to me. But the community pharmaceutical industry would be interested in an answer on how that would be delivered.

[Earl Howe]

I would be happy to write to the noble Baroness in the interests of time, but I was about to explain that as regards primary medical services the direction-making powers that I mentioned will also enable the board to arrange for clinical commissioning groups to carry out some contract monitoring functions and limited commissioning functions on its behalf should it so wish. So the board can enlist the help of the clinical commissioning groups themselves to do some of the monitoring function. That will not alter the board’s overarching responsibility for commissioning general practitioner services and holding their contracts. But I will write to the noble Baroness, as she asks.

[Lord Warner]

Can the Minister explain something to us, if necessary in writing in order not to detain the House? I am very confused about what happens in areas where historically there have been great problems with health inequalities in securing a volume of primary medical services to meet the needs of those communities. I am very unclear who we are expecting to ensure that there is a sufficient volume of primary medical services and what the relative roles of the Commissioning Board, the CCGs and the health and well-being boards are in that context. It is a longstanding problem for the NHS. I do not expect the Minister to answer now, but it would be helpful to have some thoughts in a letter on that issue.

[Earl Howe]

I undertake to write to noble Lords about that, and I agree that it is an important matter.

[Baroness Thornton]

I thank the Minister for that answer. We will return to discuss issues about the community pharmacies, possibly not in Committee or on Report but outside the Chamber, because there are some areas of concern where clarification is required. I thank the Minister for his answer and beg leave to withdraw.

Amendment 239 withdrawn.

Amendments 239ZZA to 239ZZC not moved.

Amendment 239ZA had been withdrawn from the Marshalled List.

Clause 46 agreed.

Clause 47 agreed.

Clause 48 : Pharmaceutical services expenditure

Amendment 239A not moved.

Clause 48 agreed.

Schedule 3 agreed.

House resumed.

House adjourned at 9.59 pm.