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

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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.