Grand Committee

Wednesday 7th December 2011 Grand Committee

Wednesday, 7 December 2011.

15:45

Arrangement of Business

Wednesday 7th December 2011 Grand Committee

Announcement

[The Deputy Chairman of Committees (Viscount Simon)]

My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes.

[Baroness Garden of Frognal]

My Lords, there are 15 speakers signed up for the first debate and nine speakers for the second debate this afternoon. If all contributions other than those of the openers and winders are kept to seven minutes, the Grand Committee should adjourn at 7.45 pm.

Constitutional Change: Constitution Committee Report

Wednesday 7th December 2011 Grand Committee

Considered in Grand Committee

15:46

Moved By

[Baroness Jay of Paddington]

That the Grand Committee do consider the Report of the Constitution Committee on The Process of Constitutional Change (15th Report, HL Paper 177).

[Baroness Jay of Paddington]

My Lords, I am very pleased to open this debate on the Constitution Committee’s report, The Process of Constitutional Change, which we published last July. The purpose of the inquiry was to explore the way in which changes to the UK constitution are brought about, and whether we could recommend improvements. The timing of the inquiry was prompted by the coalition Government’s action in introducing several substantial constitutional Bills in their first year in office. As noble Lords will be aware, the Government have also announced further plans for constitutional change, notably reform of your Lordships’ House.

Our report was based on written submissions that we received and on oral evidence from a number of eminent experts. These experts were mostly academics but we also heard from the Deputy Prime Minister, Nick Clegg, the author of many of the coalition proposals, and from two former MPs, Tony Wright and David Howarth, who have wide knowledge and experience in this field. I should like to place on record my thanks to all who gave evidence and, in particular, to the committee’s two legal advisers, Professor Adam Tompkins and Professor Rick Rawlings, who acted as specialist advisers for this inquiry, and to our Clerk, Emily Baldock.

The committee’s overall recommendation is that, in contrast with existing practice, the United Kingdom needs to adopt a clear and consistent process to make Governments accountable for the constitutional changes that they introduce. As your Lordships will appreciate, the process of constitutional change matters because the constitution, even when it is unwritten, is the foundation on which our laws and government are built. Currently there is little to prevent Governments with a majority in the other place changing the UK’s constitutional arrangements as they please. The constitution is therefore vulnerable to the political agendas of successive Governments but any Government should be subject to the constitution, not the other way around.

In the Select Committee’s opinion, all proposed changes should be tested against an agreed and rigorous process, which would prevent Ministers picking and choosing which processes to apply in different political circumstances. We argue that constitutional legislation is qualitatively different from other legislation and should therefore be treated differently.

It should be noted that, although our inquiry was, as I said, prompted by our response to several contemporary Bills, our criticisms of existing process are certainly not exclusively directed at the current Government. The record of the past will show that the Constitution Committee has been concerned about constitutional legislation since it was first established a decade ago. As the Grand Committee will remember, the Constitution Committee was often robustly critical of changes made by the previous Administration. I believe that the noble Lord, Lord Norton of Louth, who is a very long-serving member of the committee, will speak about its persistent and consistent efforts in this direction since 2001.

This year, as a first step, we set about trying to define those pieces of legislation that could legitimately be called constitutional and should therefore be subject to a special process. However, we were not tempted to consider that this could be done in a watertight way only if the UK moved towards a written constitution. Equally, we did not accept the suggestions, which came from several academic witnesses, that Parliament should outsource constitutional matters to an independent commission, which could then decide whether any constitutional proposals were acceptable.

However, the committee found it useful to try to identify positively those areas where any change was properly described as both constitutional and substantial. Professor Sir John Baker of the University of Cambridge offered us a list, which the committee found useful. The list included: any alteration to structure and composition of Parliament; any alteration to powers of Parliament or any transfer of power, as by devolution or international treaty, which would in practice be difficult to reverse; any alternation to the succession to the Crown, or the functions of the monarch; any substantial alteration to the balance of power between Parliament and government; any substantial alteration to the balance of power between central government and local authorities; and any substantial alteration to the liberties of the subject, including the right to habeas corpus and trial by jury.

Clearly, this is not an exhaustive list, but the Committee thought that it certainly included those significant constitutional matters, where a clear and consistent process should be adopted by all Governments. In essence, our main recommendation was quite limited. We asked that the Government, before introducing such a new Bill into Parliament, should set out in a Written Ministerial Statement whether that Bill provides for significant constitutional change and, if so, whether it has been subject to certain prelegislative processes, both of consultation and prelegislative scrutiny.

In our view, any constitutional Bill should be preceded first by some form of public engagement. There should be rigorous scrutiny in Cabinet committees, particularly considering the impact of proposals on the existing constitutional arrangements, which in our opinion are sometimes not taken into consideration. The Government should publish both Green and White Papers to be followed by a formal public consultation and prelegislative scrutiny. At the end of such a process, there is no doubt that there may well still be disagreement with the policy of a particular Bill, and we did not recommend, as has sometimes been suggested, that a consensus must be reached before a Bill could be introduced. But at least, if the process that we described had been followed, everyone would have been afforded an opportunity to have their say and genuinely influence the outcome. The only mandatory element of these proposals would be the production of the Written Ministerial Statement.

The Government’s response to our report was published in September and, in parliamentary language, I have to describe it as disappointing. The Government do not appear to accept that constitutional Bills can be readily identified and should have particular treatment. The Committee thought that even on the basis that “you know one when you see one”, it is perfectly possible to single out a constitutional Bill for a special process. The Government’s response to the main recommendation was that they,

“will consider whether to accept the principle of it”.

This afternoon, I urge the Minister to go further than consideration and accept that principle and thus agree to introduce Written Ministerial Statements, one hopes from the beginning of the next Session. This in itself would go a long way to remove the practice of ad hoc decision-making in this fundamental area.

The recommendations that we made for a specific prelegislative process were queried in the Government’s response and are obviously the subject for debate and refinement. The question of what the committee’s report calls public engagement is always difficult in a representative democracy. In this instance, we use the phrase to cover forms of engagement that take place at an early stage in policy-making. We distinguished it from referendums on specific policy questions and from public consultation on individual detailed proposals. We heard, for example, about a fascinating model for engagement used in British Columbia, in Canada, where citizens from all over the province were randomly selected and then met over the course of a year to determine which type of electoral system should be put to the people in a referendum. The committee found this model attractive and were clear that it was important to try to actively engage citizens and involve them in significant constitutional change. But we did not find that any one form of such engagement could, or should, be mandatory. For example, a model that worked for consideration of the electoral system might not be appropriate to determine how best to protect habeas corpus. But this did not mean that the committee wanted the Government to ignore the possibility of public engagement in consultation, and if our proposal for a mandatory ministerial statement on constitutional Bills were to be adopted, the Government would have to justify explicitly the reasons why they did not undertake such procedures.

Some noble Lords have already told me that they felt that the committee’s report was somewhat unimaginative and downplayed the value of consultation. This was certainly not our intention, but we were concerned to learn from several witnesses that too often, today, public consultations are seen merely as box ticking. We wanted to find a way in which we could agree that some form of sensible consultation could be undertaken. It would be obviously of enormous value if noble Lords who are concerned could today offer solutions which might have wide application.

Finally, I want to say a brief word about the Cabinet committee system, which we considered imperative in this process. We felt it imperative that proposals for significant constitutional change be subjected to rigorous scrutiny in Cabinet committees, partly because of their potential impact across all government departments and partly because the committee system is an essential part of ministerial responsibility. Again, somewhat disappointingly, the Government responded that collective responsibility meant that internal Cabinet discussions could not be publicly revealed. Yet the committee was not asking for publication, simply that the ministerial statement formally record that proper Cabinet committees had taken place. Surely, that could not be considered a breach of official security.

In conclusion, I once again draw your Lordships’ attention to our inquiry’s most important finding: that there is no accepted current process for constitutional change. It simply does not exist. We therefore recommend the future adoption of a clear and consistent process, intended to form a comprehensive package from which the Government could depart only in exceptional circumstances and where there are clearly justifiable reasons for doing so. We did not think that this needed cumbersome or inhibiting legislation, as only the proposal for a Written Ministerial Statement on constitutional Bills would be a statutory requirement. We thought our recommendations were practical and achievable, and I hope that the Minister is able to provide your Lordships today with a more positive response than the Government’s formal response in the autumn. I look forward to the debate and I beg to move.

15:57

[Lord Renton of Mount Harry]

My Lords, it is my privilege to follow our chairman in this debate. First, we had a very efficient chairman who made us all work hard—no sleeping at all. In the end, she produced a very interesting report. I also thank the legal advisers and the clerk for all the work that they did. I am rather sorry that I am speaking number two, because I am going to be a bit difficult on this issue. I have obviously read the reply from the Government. I think that our ideas were certainly well thought out and sensible, but there were moments when they were perhaps a little over the top. Paragraph 104 says:

“We consider that comprehensive post-legislative scrutiny should be a requirement for all significant constitutional legislation. Each minister should set out the government’s plans for such scrutiny in their written statement”.

The actual chances of getting any such word from a Minister are very small, because they are generally far too busy and will stay that way. However, it was well thought out, even if a bit over the top.

I am impressed by the Government’s response, which is sensible and has made me think again. I would particularly like to quote the beginning of paragraph 4, on page 5 of that response:

“The Committee suggests that although Governments should continue to have the right to initiate constitutional change, this needs to be tempered by a realisation that constitutional legislation is qualitatively different from other legislation”.

The Government then say, absolutely plainly:

“The Government does not accept this. Constitutional legislation, like all legislation, varies in its importance, complexity and impact”.

The response then goes on to expand on that. That point by the Government needs a certain amount of serious consideration. Paragraph 101 of our report is about referendums. It states:

“This Committee recently examined the use of referendums in the United Kingdom and concluded that whilst there were ‘significant drawbacks’ to their use ‘they are most appropriately used in relation to fundamental constitutional issues’”.

That is an important point, because obviously one sees at the moment the likelihood of the Government going more and more to referendums in order to get a decision about a different matter.

Let us think for a moment about what is happening in the eurozone. We have Merkel and Sarkozy, as the newspapers say, out to save the euro. They are saying quite definitely that that will require a new treaty that will “recast Europe”. Those are some of the big words used. As we all know, there are pivotal talks tomorrow. Let us assume that there is a new treaty. If we then decide that we can accept this treaty, is that constitutional legislation? It would certainly have the effect of constitutional legislation. The Government would obviously put the matter before Parliament.

If Parliament were to reject what the Government were putting before it, there is no chance then that the treaty would be changed. It would go ahead. The Government would probably have a referendum and, as with the referendums on voting, it would be on the question, “Do we accept the treaty or not?”. Again, if that is decided against where would we go? We would then withdraw from the treaty and many people would think that that was a great mistake. We now have to consider the possibility of joining in what is obviously an important subject like a new treaty and how we would deal with that in this country.

I will take this one step further before I stop talking. No doubt the internet will become more and more popular and government will sooner or later use the internet to get answers to referendums. They could ask for an answer on the internet, to be sent by post or whatever. Again, one sees a change in the constitutional legislation in that Members of Parliament voting in Westminster will become less and less important. Does that mean that there is no longer a legislative process in Westminster to which we would all feel bound?

This issue is complicated, but it is looking ahead and it is well worth thinking about that in the committee this afternoon and in what we do in the future. We need to think about whether constitutional legislation requires a legislative process in Westminster or whether we would have at times to see a move towards constitutional decisions that had not gone through the Westminster Parliament. That is serious question for the future.

16:04

[Baroness Taylor of Bolton]

My Lords, I congratulate my noble friend Lady Jay and the committee on yet another very interesting report that the whole House would do well to read. I was not surprised that the noble Lord described my noble friend as an efficient chairman. Having worked with her in government, I am sure that she was. I hope she takes that as a compliment.

The fact that so many people want to speak in this very short debate today shows just how important constitutional change is at this time. There is a great deal happening that we have not always fully taken on board. Certainly, we have not always taken on board the potential interrelationships between some of the changes that are being proposed. We have had mention of the Bills that have become Acts of Parliament; there is promise of more reform in the future; and we have the potential for what might happen so far as devolution and a referendum on independence are concerned. If we are going to have such significant changes, perhaps both Houses in this Parliament need to spend a little more time thinking carefully about their consequences. That is assuming that the Government intend to go ahead with further constitutional change at a time when there does not seem to be great public appetite for it given all the other problems of economic challenge that we are facing.

There are many interesting features in the report—the noble Lord, Lord Renton, mentioned some. He drew attention to paragraph 104, which advocates post-legislative scrutiny for constitutional matters. I am very much in favour of post-legislative scrutiny. When I established the Modernisation Committee in another place in 1997, we wanted to get more momentum on prelegislative scrutiny, but I was always disappointed that we were not able to do more on post-legislative scrutiny. When it comes to constitutional change, post-legislative scrutiny might be necessary, but it is a bit late by then. My great concern is that enough thought does not go into the early stages, which is what this report focuses on.

There is, as my noble friend Lady Jay, said, one fundamental difference around the nature and significance of constitutional change. Is legislation on the constitution fundamentally different from other types of legislation? The Government indicate that that is not the case; I for my part believe that it very much is. I can recall from my time as a constituency MP—others will have had this experience—many occasions when legislation being passed through both Houses proved difficult or not up to the mark. The Child Support Agency is a very obvious example. Members of Parliament knew from constituency casework that it was going wrong from day 1. After lots of attempts and changes, we were able to put it right. It was not perfect, but we made it workable. But if constitutional change goes wrong, and if it has unintended consequences, which can very often be the case, how do we fix our democracy and how do we get it back when the damage is done? That emphasises the need for proper preparation.

I think that we could all agree that we are at a time when trust in politicians and political parties, which are essential to choice in a political democracy, is low, and that is for a variety of reasons. My fear is that the nature of the constitutional change that has gone through this Parliament already, and some that is proposed, will militate against improving the situation. For example, fixed-term Parliaments could lead to a crisis if the public felt that a Government should be voted down but, for technical reasons and the way in which that Bill was passed, that could not happen. I believe that problems will arise from the constant turmoil of boundary reviews if these are going to take place every five years—it is difficult enough for many people to know who their Member of Parliament is and identify with them at the moment. I think that many Members at the other end have realised rather late in the day some of the internal consequences of constant boundary reviews. If electoral wards are going to be changed every five years, that will not help the level of trust but, more important and perhaps more obvious than that, it will impact on the work of MPs. If the day after you are elected you have to concentrate on getting reselected for a potential new boundary constituency, you may be spending too much time looking over your shoulder at party or local matters rather than spending your time at Westminster, and it will turn Members of Parliament into constant rivals. It is bad enough when it happens once every 15 years, but if it is going to happen every Parliament, it will be extremely difficult. I speak as someone who has gone through boundary reviews and some of those difficulties. If we are going to have senators with a 15-year mandate, I am not sure where public trust comes in there, especially as we see that at the moment there is very little identification of individual constituents with Members of the European Parliament. You are going to have PR and party establishments are going to decide who is a senator without an Appointments Commission, and I do not think that is going to improve trust.

I think the Government need to learn from this committee’s report, otherwise we will be in danger of constitutional turmoil. I think there are real difficulties and real dangers that people will turn off from politics even further. We have seen an alarming situation develop in some European countries recently where being an elected politician disqualifies you from being part of the Government. That is because of a lack of trust between politicians and the electorate. I think that the Government need to look at this report more carefully. I noted how polite my noble friend was in her description. I was going to say that the ministerial response was complacency with a touch of arrogance, but I hope there is still time, and I urge Ministers not to put this report on the shelf but to be aware of the problems of unintended consequences and the potential turmoil of all the changes being talked about at the present time.

16:12

[Lord Maclennan of Rogart]

I begin by expressing my admiration for the report of the Constitution Committee. I believe that, in quite a short compass, it defines many of the current problems of our legislative process for dealing with constitutional issues and suggests a system that I think has a great deal of merit. I really hope that the Government will reconsider because, to put it as kindly as I can, I regard their response to this committee’s report as deeply disappointing.

In the past, I, with Robin Cook, engaged in a process of consultation with parties, government and the public about how to implement constitutional reform, and what I drew from that experience was the importance of proper deliberation and of seeking agreement across as broad a spectrum of politics as possible. The committee was right to say that constitutional reform could not possibly be based on consensus, but the widest agreement is very desirable. I thought that the Government’s suggestion in their response that legislation for constitutional reform is no different from other legislation was misconceived. In the first place, it is not a measure of relative importance in the eyes of the public that distinguishes, say, the health Bill currently before Parliament from a Bill to determine how frequently parliamentary boundaries will be changed. Different people will have very different views about that. It is important to recognise that public trust in our democracy depends upon our constitutional arrangements, and we should not take them as a lesser matter. When countries are suffering economic difficulties—and there are very acute difficulties at the moment—the tendency is not to feel confidence in the political system that has brought them to that place. It is very important that people have confidence in the decision-making process, the checks and balances, how leaders emerge, how they represent the public and how they can be got at by the public. Consequently, I very much agreed with the general evidence given by Professor Sir Jeffrey Jowell to the committee that,

“the constitution provides the rules of the game, the framework for all official decisions. If these decisions are to be accepted as legitimate, even though you may not agree with them, then the framework of decision-making must command respect and general acquiescence”.

The process that has been described by the committee is one that would make it more likely that acquiescence and respect are obtained for these measures of constitutional change.

I would contrast the measures that were introduced at the beginning of the Labour Government in 1997—including freedom of information; an initial step towards reform of this House; devolution—with the measures that were brought before Parliament at the very end of the last Labour Government, which had not been subject, with the exception of the Civil Service proposals, to any kind of extensive reform and were causing quite a considerable degree of difference between different groups which are interested in the subject.

It does appear to me that the committee has given us serious suggestions as to how the prelegislative process should be conducted. All the steps—seven steps are recommended in this process, including a post-legislative review—are indispensable if we are to evoke the trust of the public. I am concerned that this short and dismissive response will confine this report to the archives. I do not believe that that would be a satisfactory outcome. I hope that the Constitution Committee will consider whether some of these matters might be put, with the agreement of the House, to the various committees that consider procedure, including the Liaison Committee. The incoherence of our constitutional reform is beginning to become not just a sign of flexibility, but something that baffles the public; it does not operate to bring about more sensible changes in the way we reach our governmental decisions.

I hope that this will not be end of the debate and that there will be a systematic series of suggestions put forward for the House to deliberate upon.

16:18

[Lord Crickhowell]

My Lords, I begin by paying tribute to our excellent chairman and to our very able legal advisers. Almost every week the Constitution Committee, of which I am a member, examines a Bill which is about to have its Second Reading in the House of Lords. All too often, it is not a happy experience. Our job is to draw to the attention of the House matters of constitutional importance. Again and again, we find the important and frequently repeated recommendations of the committee made in past reports, and similar recommendations made by committees of the House of Commons about such matters as the use of Henry VIII clauses, have been ignored.

All too often, it is also apparent that, quite apart from the constitutional issues, the legislation has been badly drafted or brought forward in a form likely to ensure that its progress will be disruptive and time-consuming. I used to serve on the legislation committee of the Cabinet chaired by Lord Whitelaw. He would never have allowed much of this badly prepared legislation to go forward and I am surprised that the Government's business managers are not equally firm. It would save them much trouble. Unfortunately, the shortcomings have been particularly apparent in some of the most important constitutional Bills, of which the Public Bodies Bill was a particularly bad example.

Against that background, I found the Government's response to our report so disappointing, unlike my noble friend Lord Renton of Mount Harry, who I felt for a moment was being over-influenced by his previous experience as government Chief Whip. Ministers in a new Administration, many without previous ministerial experience and anxious to proceed with measures that they considered important, may perhaps be forgiven for initial mistakes, even if mistakes caused the Government serious legislative difficulties, but I would have hoped that they would have learnt lessons and been anxious to avoid repeating their misjudgments.

In their response to the committee’s report, the Government start by attempting to undermine our main conclusions by a serious misrepresentation of its contents. The introduction section of the response states,

“The Government notes that the Committee does not offer a definition of ‘constitutional’”.

Yet describing current practice on the very next page we are told that:

“It is recognised practice for government bills of ‘first-class’ constitutional importance to be committed to a Committee of the Whole House in the House of Commons”.

Definition then clearly is possible in such a manner as to be the basis for recognised practice.

In our report, after addressing in paragraph 10 the difficulties of definition and quoting from the definition offered in the committee’s first report of 10 years ago, which has provided the solid foundation for our work ever since, we offered pretty clear guidance including a list provided by Sir John Baker which,

“provides, in our view, a useful guide to the principal measures which would fall under the rubric of significant constitutional change”.

We suggested that the desire to act quickly as a new Government is not an adequate justification for bypassing a proper constitutional process. The Government's response is that the proper constitutional process is the legislative process and that there was a genuine need for early action. But a great deal of evidence that we received as a committee—and we base our reports on evidence received—showed just why the normal legislative process is not adequate for important constitutional measures. The whole purpose of our proposals was to place some constraints on any Government introducing significant changes, particularly if they are doing so in a hurry.

As the noble Baroness, Lady Jay, observed, there is at present very little to restrain a Government with a substantial majority in the House of Commons. In the case of the measures introduced so urgently by the present Government, they were not underwritten by manifesto commitments endorsed by the verdict of the electorate; they were the outcome of the deal cobbled together over the few days needed to create the coalition. In such a situation, a Government are fully entitled to come forward with measures, but the requirement for proper process to be followed is particularly important. As part of that process, the recommendation in paragraph 9 of our report about ministerial statements to accompany a Bill on its introduction into each House is of fundamental importance. I welcome the fact that the Government will consider whether to accept the principle of that recommendation, together with a similar recommendation made by the Leader of the House on working practice. However, I must say that the Explanatory Notes that accompany a Bill are not an adequate substitute and will not have the effect that we are seeking.

The Deputy Prime Minister in evidence to the committee quoted in paragraph 54 gave cogent reasons for the Government placing an emphasis on,

“greater accountability in the manner in which we conduct ourselves and the way in which politics is conducted, greater legitimacy in the political institutions that seek to represent people; and breaking up excessive concentrations of power and secrecy”.

It is curious in light of that statement that considering the way in which the Cabinet committee system works when dealing with important constitutional change, we are told that the process by which such agreements are reached,

“is a matter for the Government, not for Parliament”.

After a period during which the Cabinet committee system that I knew in government largely lapsed, and during which, to take one example, the Prime Minister set out to abolish the historic office of Lord Chancellor without Cabinet discussion; and when we now have the proper conduct of business set out in the Cabinet manual, it is not just a matter for the Government. Parliament has a very legitimate interest, particularly in the case of constitutional legislation.

The Government say that the fact that a Bill could be considered constitutional in nature does not of itself mean that it should be a priority for pre-legislative scrutiny. I say that it should indeed be a priority, but that if there are justifiable reasons for not undertaking such scrutiny, that needs to be explained and justified.

Under the heading “The role of the Constitution Committee”, in paragraph 108, for very good reasons, we recommended that when introducing a Bill for significant constitutional change into the House of Lords, there should be a minimum of three weekends between First and Second Reading. The Government reject our recommendation, completely ignoring the important role of the Constitution Committee and its ability to perform effectively the duties that it has been given by the House. If the committee’s advisers are expected to give Bills proper scrutiny and the committee is to carry out its work within an interval of two weeks, not three, surely the Government should be capable of responding between the Second Reading and the beginning of the Committee stage. The two months they demand and often take at present is far too long.

The final conclusion of the response seems to me negative, superficial and inadequate, like so much of the work done by the present Administration in the preparation of their legislative programme. Constitutional change is far too important in its consequences to everyone for Parliament to allow it to be hurried through on the whim of Ministers and without proper consideration and procedural rules. I would add as a supporter of this Government that it would be enormously to their advantage if Ministers were to try to learn from experience and past mistakes, and to consider with much greater care than they have done so far the recommendations of important parliamentary committees and the advice of their friends about the better handling of parliamentary business generally.

16:29

[Lord Wills]

My Lords, I agree with almost everything that the noble Lord, Lord Crickhowell, has said. I follow other noble Lords in welcoming this report. Once again, this committee has performed an invaluable service by producing a report that is thorough, wise and timely, too, in view of the energetic way in which this Government have been pursuing constitutional reform, though not always fruitfully. I share the hope expressed by other noble Lords today that the Government will rethink their response. I speak as someone who was a Minister in the last Government responsible for constitutional reform. The Government are in grave danger of repeating the mistakes that we made in government.

In light of the general welcome given to this report and to all the committee’s reports, I hope that it will not be considered sacrilegious if I spend a few minutes taking issue with it. I want to take issue with only a limited section of the report, but it is precisely because it is so limited that I take issue. Only six paragraphs out of 105 in the report are devoted to public engagement. The committee rightly stresses the importance of process in constitutional change, but one of the main reasons, if not the main reason, that it is so important, is that proper process is most likely to secure the public consent to change that in turn is most likely to ensure that it endures. That is crucial with constitutional change. Surely in the light of this, the issue of public engagement deserves a little more scrutiny than the 6 per cent of this report that is devoted to it. The committee spends rather longer on the question of consultation, although its focus seems to be primarily on the established institutions of power, primarily in Westminster rather than the general public. It offers sensible and balanced views, in my view, on Green Papers and White Papers and prelegislative scrutiny, but is more or less silent on how consultation with the public should be carried out more widely, with whom exactly and for how long, and how that should influence public policy, and where such consultation fits in our system of representative democracy. Yet these are all crucial questions, in my view. It is not as if there are no other models available for the committee to scrutinise, but it mentions only one—from Canada—and that is almost in passing.

There is an uncharacteristic lack of rigour in the perfunctory conclusion that the committee reaches that,

“no one model … should be adopted for all proposed changes. Nor is public engagement at this stage of the process always a necessary requirement. However, if not undertaken, the government should be able to justify their decision not to conduct a public engagement exercise”.

It would have been helpful to future Governments embarking on constitutional change if the committee could have given a few more reasons for this conclusion. It would have been even more helpful if they had attempted to explore different models and when it might be appropriate to use them.

Of course, it is difficult to reach definitive conclusions about the best mechanisms, and I agree with what my noble friend Lady Jay rightly said on this. As she also pointed out, there is a risk of public engagement degenerating into little more than a box-ticking exercise. But those difficulties and risks should not be used as an excuse for not exploring further this important issue. For more than a decade, every Minister bringing forward constitutional legislation—and I was one among many—has remarked on the state of our democracy. My noble friend Lady Taylor made some very important points about this today. There has been a well documented decline of trust in politicians, increasing disengagement from the formal democratic process, with disadvantaged groups and younger people increasingly unlikely to vote at elections. We have seen the weakening of old, collectivist structures and historic social identities and the rise of a professional political class. It has all served to undermine engagement with the party politics on which our system of representative democracy depends. How to re-engage the public in democratic politics is a huge challenge facing everyone, both Houses of Parliament. Nowhere is that more important than in the process of constitutional change that addresses the wiring of our democracy, which is why, as other noble Lords have pointed out, it is not like other legislation.

As my noble friend Lady Jay pointed out, it is not easy to see how best to do this without compromising our system of representative democracy, which we should continue to cherish. The difficulties can be seen, for example, in the entanglements that the other place is getting itself into in dealing with petitions. Representative democracy is precious, and we should never cease reminding ourselves if that, in the current climate, because it allows for the fairest distribution of power among all citizens, offers space for scrutiny and deliberation on complex issues and does so continually as such issues arise, which makes for better policy. It fosters the articulation of the needs and aspirations of the inarticulate and protects the interests of minorities, all of which are hallmarks of a decent and civilised society. Representative democracy should not be replaced or threatened, but that does not mean that it cannot be adapted to new circumstances.

Referendums can have their place in this. The arguments for and against their use have been well set out in an excellent previous report by this committee, but referendums are not the only way of increasing democratic engagement. As I have said, I would have hoped that the committee would have spent a bit more time exploring this issue in its report. It had a starting point in a policy paper called A National Framework for Greater Citizen Engagement, which was published over two years ago by the then Government and which explored the use of mechanisms such as citizens summits as well as referendums. That paper set out proposals for when national policy formulation could benefit from greater public participation and, in the view of that paper, those circumstances included significant constitutional change.

I have set out previously my view that any new mechanisms to re-engage people with democratic processes and improve policy formulation will succeed only if they fulfil five conditions. Briefly, they are: first, they must register with the public, which means that they must be regular and pervasive; secondly, they must be credible and people must believe that they matter— I will cease there.

16:36

Sitting suspended for a Division in the House.

[The Deputy Chairman of Committees]

My Lords, as the noble Lord, Lord Tunnicliffe, is acting as Teller, we will resume when he comes back.

16:50

[Lord Wills]

My Lords, before more important things interrupted, I was just reaching my conclusion. I hope that the Committee will look at ways to engage the public on this very important issue. I set out, as a starting point, five crucial criteria which, in my view, any new mechanism for engaging with the public must fulfil.

First, the mechanisms must register with the public. In other words, they must be regular and pervasive. Secondly, the mechanisms must be credible. People have got to believe that they matter and are not a box-ticking exercise. They should be open and transparent; participants must be aware in advance of the status of the consultation and what it can achieve; there must be a shared understanding of when and how these mechanisms will be used—the committee is absolutely right to have drawn attention to that in this report; and government must not engage consultation just for the sake of it, with no discernible outcome.

Thirdly, engagement mechanisms must be systemic; otherwise people could all too easily regard them as a version of a tactical device. Deliberative assemblies such as citizens’ senates should represent, in my view, a permanent change to the process of policy development. Fourthly, they should be as representative and accessible as possible, involving a broad spread of the population, not just the usual suspects. Finally, such new mechanisms must also, and always, be consistent with the primacy of representative democracy. They should never replace parliamentary consideration of issues. They should always feed into them.

These propositions are just one starting point for what I hope will be a new and characteristically magisterial report by this committee on how best to engage the public in the process of constitutional change. The issue deserves nothing less than such a report to follow the one in front of us today—a report which, despite my criticisms, has made an important contribution to the debate over the future of our constitution, for which we all owe the committee our thanks.

16:53

[Lord Rennard]

My Lords, as a relatively new member of this Select Committee, I found it to be an interesting inquiry. We produced a useful report and I greatly admire the skill with which the noble Baroness, Lady Jay, steered us through our deliberations. For some people, the report would make entertaining reading about some of the key features of our uncodified constitution—of which some, perhaps, are unaware. The report highlights what some would consider to be significant flaws in our constitution. The committee itself did not favour that which I have always favoured: a written constitution. When I asked the Deputy Prime Minister giving evidence to the committee about this long-standing Liberal Democrat policy, he made it plain that the coalition Government have no intention of introducing one. One of the many benefits of a written constitution would be that it would contain within it a prescribed mechanism for constitutional change. I therefore listened to members of the committee and found it somewhat ironic that so many were genuinely keen to see significant procedures followed if there was to be any constitutional change, but not keen to see what the constitution actually is, or how to change it, written down in a codified manner.

The report elucidates what I think is a key problem with our constitutional arrangements at paragraph 23, stating:

“Aside from the limited power of the House of Lords under the Parliament Acts to delay or reject legislation, there is no formal system of checks and balances by which the integrity of the UK constitution can be safeguarded and protected. Thus there is little to constrain the ability of a government which commands a majority in the House of Commons to get its way”.

That is the fundamental problem with which we were concerned in this inquiry. Attention was drawn to this problem by the astute political commentator Andrew Rawnsley, in Servants of the People, his study of Labour’s first term after 1997. In that book he said:

“Within his own universe, no democratic leader is potentially more powerful than a British Prime Minister with a reliable parliamentary majority and an obedient Cabinet”.

On re-reading our committee’s report, I felt even more strongly than I did at the time that its central recommendation—that a clear process be followed when constitutional change is proposed—would have a much more limited effect on executive power than proper, codified constitutional arrangements would. However, short of such a constitution, it is welcome that a written ministerial statement of this kind should be proposed.

In the mean time, I will of course continue to argue for more far-reaching changes than such a statement to address the problems of excessive power that the committee outlined in paragraph 23. First, I would still argue that the most effective curb on excessive executive power is for the Executive not to have a majority, as is the case in the House of Lords and as would normally be the case if we had a more representative system for elections to the House of Commons. Secondly, I would point out that the introduction of a stronger check and balance on the dominance of the Executive would come from a democratic second Chamber, which would be emboldened more regularly to say no to the Executive.

At the outset of our deliberations on all these issues, the committee benefited greatly from the membership of some of the former Ministers responsible for a very good period of constitutional change—or constitutional reform as you may wish to define it—between 1997 and 1999. As my noble friend Lord Maclennan of Rogart said earlier, this period’s success could be demonstrated by the way in which we were able, relatively rapidly, to reach agreement through both Houses of Parliament on devolution to Scotland and Wales, the introduction of proportional representation for the European elections, freedom of information legislation and the incorporation of the European Convention on Human Rights into British law. However, the basis of achieving such rapid progress in the first two years of a Government was that two parties were able to co-operate in opposition over a significant period, and with independent academic expertise advising us.

I pay tribute to my noble friend Lord Maclennan of Rogart and say how much we miss the late Robin Cook. Between the two of them, they successfully chaired that committee in the autumn of 1996 and early 1997. I was privileged to be its joint secretary and it did a great deal of good in advancing the process of constitutional change.

The committee also had a concern, set out in paragraphs 27 to 29, about the lack of an overarching programme of reform with coherent values running through it. The committee was generally more critical of the first year or two of this Government than it was of that period in 1997 and 1998. I share the committee’s concern about some of the process of constitutional change since the general election and was happy to endorse the report’s criticism. However, I also fear that in some senses there could have been more of a public backlash against a very overarching programme. The problem is that if you had a more clearly explained overarching programme, which belonged simply to one party, some people might consider it to be an overreaching programme. If a Government then tried to act more rapidly than has perhaps been the case—in a big-bang, too-big-too-fast way—there would be public opposition to such a programme of change. I do not agree with the noble Lord, Lord Wills, about public engagement but, following his remarks, a safeguard against any one party in a future Government making changes too rapidly and in an ill thought-out way would be to have more consistent public engagement.

Reformers of the constitution have long talked about different forms of constitutional convention that could be established, involving different parts of civic society—perhaps a cross-section of Parliament and randomly selected members of the public. Indeed, the Scottish Constitutional Convention gave us a very good model of how different parties, people not involved with parties at all, the church and religious organisations et cetera could get involved in suggesting a way forward so that, when a Government are minded to act, there is a blueprint for how to proceed. If we are to have an overarching programme, it may well be that such a convention would have to be its genesis to prevent the same sort of controversy attaching to it as has perhaps been attached to the opening years of this Government’s constitutional reform programme.

17:00

[Lord Norton of Louth]

My Lords, I declare an interest as a member of the committee but, in addition, as its first chair. In that capacity, I was responsible for the committee’s fourth report of 2001-02, entitled Changing the Constitution: the Process of Constitutional Change.

The noble Baroness, Lady Jay, has detailed the committee's report and I do not propose to repeat what she has said. Like others, I shall focus on the Government's response. If the response had been submitted by a student, I would have failed it. It is built on a false premise and appears to have been written by someone who has not read the report, nor for that matter read the committee’s earlier report.

The constitution creates the framework within which we are governed. As such, it stands above, rather than alongside, public policy that is enacted within the process created by it. It should be recognised as creating the framework within which government governs rather than as a tool of government. The point was well made in evidence to the committee by Sir John Baker, professor of law at Cambridge University, who wrote:

“One of my main concerns is that it seems to have become assumed over the last few years that constitutional change is a never-ending continuous process, and even more alarmingly that it is a process which (for want of any other system) belongs to the government of the day to manage. This has never been the case in the past, and it is not the case in any other civilised country which comes to mind … A constitution should be thought about as a whole, it should command general support, and it should be more or less fixed, with the possibility of alteration only rarely and by special procedures”.

The Government’s response fails completely to grasp the position of the constitution as being above government, but rather views measures designed to change our constitution as being on a par with other legislation. The legislative process may be the same for every Act—that is the starting point of the response—but to state that is to miss completely the significance and indeed status of the constitution.

Indeed, the Government’s response marks something of a reversal of the position taken by the previous Government. That Government had no intellectually coherent approach to constitutional change—a point I argued frequently—and, as we contended in our report in 2002, they needed to develop not only a culture of constitutional appreciation but also a more integrated approach to change. However, having said that, the noble and learned Lord, Lord Irvine of Lairg, as Lord Chancellor, recognised the significance of legislation affecting our constitutional arrangements. This he demonstrated in a clear flowchart that he submitted to the Constitution Committee as part of its initial inquiry. The Government’s response to this report appears to mark a step back even from that.

Paragraph 2 of the Government's response states that,

“constitutional change is no different from any other public policy”.

This takes us beyond process to substance and reflects the failure to understand the unique position of the constitution. Measures designed to change the basic framework of our constitution are of a qualitatively different kind from ordinary legislation. It is imperative that the Government grasp this essential point.

The response goes on—my noble friend Lord Crickhowell has already quoted this—to assert:

“The Government notes that the Committee does not offer a definition of ‘constitutional’”.

Yes, it does. We provide, as we did in our very first report in 2001, a working definition of a constitution—it is in paragraph 10 of the present report—and we go on, at paragraph 11, to identify what constitutes significant “constitutional” legislation.

At paragraph 20, the Government’s response takes the committee's observation that there is no watertight definition of significant constitutional legislation as a reason for their reluctance to see special processes for handling such legislation. That does not follow at all. There may not be a precise dividing line, but it is usually fairly clear from the evidence presented to the committee what is and what is not significant constitutional legislation. The very fact that one can discern the difference underpins the very existence of the Constitution Committee. The committee adopts the two Ps test in assessing legislation—does it affect a principal part of the constitution and does it raise an issue of principle which has not given rise to difficulties?

Indeed, the Government must have their own test for deciding what is constitutionally significant in order to fulfil their statutory responsibilities. Section 3 of the Legislative and Regulatory Reform Act 2006 prohibits Ministers from making a provision removing or reducing regulatory burdens unless the provision,

“is not of constitutional significance”.

Perhaps my noble friend in reply can tell us what definition the Government employ in determining what is constitutionally significant and how that relates to the Government's response.

For reasons of time, I will not go into detail on the remaining paragraphs of the Government's response. In any event, I do not need to, because what follows derives from the unforgivable failure to grasp the overarching position of the constitution and the consequences for the process of lawmaking that is derived from that status. I suggest that my noble friend considers withdrawing the response and producing a considered reply that is actually grounded in an understanding of our constitutional arrangements.

17:06

[Lord Desai]

My Lords, it is a great pleasure to follow the noble Lord, Lord Norton of Louth. I welcome the report so ably introduced by my noble friend Lady Jay of Paddington.

I start with what the noble Lord, Lord Norton, said about the Legislative and Regulatory Reform Bill 2006. I recall that when the Bill was before your Lordships' House, it introduced a schedule of constitutionally significant Acts by way of saying that these are the Acts that shall not be amended lightly. I have always thought that that was a good device. The committee has difficulty in saying what the content of our constitution is. I offer Members of this Committee the following mental experiment. Suppose a country wanted to join the United Kingdom. What is the acquis britannique that it would have to abide by? That is in the constitution.

Suppose that Ireland, for obvious reasons, wanted to come back into the United Kingdom. What would we say that Ireland had to abide by? What would be the corpus of legislation? That is in the constitution. It is not unwritten at all. It is written down and available. The only sense that it is unwritten is that it is easy to amend.

We are now engaged in an exercise that says an unwritten constitution may be easy to amend. We may have a Crown in Parliament as sovereign and by that we now mean the House of Commons is sovereign and the Executive are even more sovereign than before. So it would be very easy for the Executive to do whatever they like. How can we introduce speed breakers in certain pieces of legislation to stop the Executive from getting away with whatever they get away with?

The noble Lord, Lord Crickhowell, has already referred to this great experiment in which my Government, because it could not sack the Lord Chancellor, tried to abolish the office itself in the course of an afternoon. Not only did they not consult anybody but nobody told the Government that it could not be done without proper legislation. I remember being in the Chamber and the noble Earl, Lord Onslow, was beside himself with rage at what had happened. He had the House adjourned and insisted that the Leader of the House come to explain what had happened. Of course, the Government had to find a new pair of tights to fit my noble and learned friend Lord Falconer because they did not realise that if he had not presided over the next day’s proceedings the House of Lords would not have been able to function.

This is the degree to which the Executive have got so above themselves—the executives of all parties. They do not even bother to find out what the constitution is and whether it can be amended. We have to welcome this report because it says you can and should make a distinction between legislation that is of constitutional significance and that which is not. Although none of this is watertight—that is the nature of the case—it is still a distinction worth making for two reasons. First, let us be quite sure that there is a corpus of legislation that should not lightly be amended, and secondly, if you are going to introduce something new, you want to know whether it is going to be of constitutional significance. Right now, we have not got a watertight criterion for judging a priori before a Bill arrives so that we can say to the Government that we consider it to be of constitutional significance. The Parliamentary Voting System and Constituencies Bill was an interesting example. It is probably one of the most profound changes we have made to the way the House of Commons is elected, but it was not thought to be a constitutional Bill. Obviously, the Government care only about timetabling legislation in the House of Commons and very little else, so they are reluctant to call a Bill a constitutional Bill because the Committee stage would have to be taken on the Floor of the House of Commons, and that is expensive in terms of time. However, that should not be the only reason why Governments decide that things are not of constitutional significance. The PVSC Bill was a very important Bill, and in the House of Lords we tried, much to the annoyance of the Government, to prolong the discussion through various amendments, and I think we were right to do so. It was a pity that it was not given the importance it should have been given. That is definitely worth saying.

The Government might think of having a Joint Committee of both Houses of Parliament, perhaps a Joint Select Committee on the constitution, for Bills that they think are of constitutional significance or of having a standing committee that receives all Bills. If the committee declares beforehand that it thinks a Bill is of constitutional significance, it is up to the Executive to give cogent reasons why they disagree with the committee and then face the music. I think that sooner or later we will need a much more organised system for making constitutional change than we have at present.

Finally, I am looking forward to a reformed House of Lords. If the House of Lords is elected, that will be another speed break on the Executive, whatever majority they have in the House of Commons. I hope that the House of Lords increases its legitimacy and puts a stop to the way Executives carry on. It is about time we had properly behaved Executives in this country.

17:15

[Baroness Falkner of Margravine]

My Lords, this is a most interesting report and the debate has lived up to its billing as one to watch, but let me start with a note of regret that the committee considered naming its inquiry “The Process of Constitutional Reform” and then, overcautiously in my view, abandoned the noun “reform” for the noun “change”. It says that “reform” was somehow inappropriate as it implied a subjective position—to change things for the better—and therefore it stuck to more neutral language, “change” being merely to make or become different. This is far too timid an aspiration for a committee of such distinction and influence, and my vote would certainly have been for reform.

On the substance of the report, there is a desire to place some constraints on the flexibility of the constitutional arrangements currently available. The danger of partisanship, whereby the Government of the day may wish to change constitutional aspects to their own advantage, is recognised, and the report recommends, rightly in my view, that constitutional legislation needs to be treated differently from other public policy. I agree wholeheartedly that there should be no surprises in the introduction of constitutional legislation, but this does not automatically take me down the committee’s preferred route of pre-legislative scrutiny as norm. I shall take an example from recent practice to illustrate my point.

On the Parliamentary Voting System and Constituencies Bill, it was very well known that both parties in the coalition considered the size of the Commons to be too large and had said so in their election manifestos—in the case of the Liberal Democrats, in several election manifestos. The public were aware of these positions, so it was not entirely unexpected as a proposal. Moreover, if it were to be implemented for the next election, its timescale was tight due to the re-drawing of boundaries, hence not allowing for pre-legislative scrutiny.

The Fixed-term Parliaments Bill was unexpected in so far as it had not been a longstanding Conservative ambition to fix parliamentary terms, as had been the case for my party. However, the exigencies of coalition government led to a situation whereby, to provide certainty in a more fluid situation than previously experienced, the Government decided to bring in this legislation.

Now, ideally, a Government moving to this kind of change—less unusual in reality than we might think, as several Governments in recent history have gone to a full five years—should have gone through consultation with a Green Paper, a White Paper, a draft Bill and then the actual Bill. The process would undoubtedly have taken at least an additional year and, in my view, as this was a political decision, was better settled sooner to lend predictability to public policy.

[Lord Norton of Louth]

Yes, it was political.

[Baroness Falkner of Margravine]

I note that what I am saying is controversial. If noble Lords want to intervene, I wonder whether they might do so and I would be prepared to deal with that.

[Lord Norton of Louth]

It was indeed political and there was no constitutional reason for it to be introduced. It would be quite sufficient for the Prime Minister to say that he would not advise the Sovereign to dissolve until May 2015. You only need the Bill if you do not trust the Prime Minister.

[Baroness Falkner of Margravine]

That is a well rehearsed point, I know, from the noble Lord, Lord Norton of Louth. My rebuttal to him at the time that we had this discussion in Committee was that all public policy can be construed as political; we nevertheless go through a process of giving it substance through law and deliberation prior to it becoming law. That was why it was quite right for it to go through Parliament. There is a philosophical imperative in respect of this public policy measure not just to have it for a single Parliament but to have it as good practice enshrined as a constitutional convention. That was the basis on which we introduced it.

[Lord Wills]

I could not resist the noble Baroness’s invitation to intervene on her. I want to make two points. First, on the point of the parliamentary Bill and the boundaries, it is of course quite right that both partners in the coalition had expressed their intention to reduce the size of the House of Commons. However, they had very different numbers, which have crucial implications for the outcome. Therefore, it is completely proper, as the committee said, that this should have been open to all sorts of prelegislative scrutiny. Secondly, the point the noble Baroness made about the Fixed-term Parliaments Bill proves the point that the committee was arguing: that Bill was precisely in the interests of the Executive, and it is the need to fetter the Executive that a lot of the measures put forward by this report are aimed at.

[Baroness Falkner of Margravine]

If the noble Lord were to read what the report says on the Fixed-term Parliaments Bill, he will see that there were contested opinions as to whether it amounted to better governance or merely the Executive overriding to their advantage.

The important examples of the need for proper constitutional process do not necessarily lie in this Parliament but in previous Parliaments; for example, the change to the role of the Lord Chancellor in 2008—noble Lords have referred to it already—or, as the committee mentions, the handling of the Constitutional Reform and Governance Bill in the closing stages of the previous Parliament, which ran a full five-year term, and where the previous Government, with eight years of power till 2005, should have introduced their Bills in the early part of the previous Parliament rather than leaving it to the wash-up. The Prevention of Terrorism Act 2005, which had significant implications for habeas corpus, was not subject to prelegislative scrutiny and, in my view, it should have been. There are some Bills that require flexibility and, as long as justifications are provided for deviation from good practice, we should take each Bill as it comes.

Let me turn to public engagement, which is emphasised in the report. It is, of course, right that in constitutional matters, more than in any other area, there should be at least a minimum awareness in the country of what is proposed and, preferably, meaningful consultation on the merits of the proposals. The nub of the problem lies in what threshold we apply. Noble Lords will be aware of the new e-petition system whereby 100,000 votes on a Downing Street petition can trigger a discussion in Parliament on public policy. As we have seen from the anti-European Union debate recently, a mere debate publicises an issue but does not lead to changes and therefore can disappoint. Consultation that leads people to think that they have a say without it being reflected in substance just makes the electorate more cynical. Another factor is the appropriateness of public engagement. The e-petition system calls forth rather esoteric and special interest issues, and I will give the Committee a flavour of them. Recent petitions include: Convicted London rioters should loose all benefits; Fight for BAE Systems Jobs; and Protect Police Pensions. Some of these may be areas where a debate might be sufficient to deal with them, but the people who have signed the petitions would wish the Government to take action. So, yes, there should be public consultation, but it should be meaningful.

Let me go to the most controversial recommendation. I beg the indulgence of the Committee in going on for a minute or two extra since I have lost some time. The report proposes that legislation should be accompanied by a ministerial statement and provides a comprehensive list of what should be covered in that statement. It further asks the Minister to justify why the Government might agree or disagree with the responses given. The Minister would also be required to set out the extent to which rigour was applied in Cabinet committee. It stops short of asking for a justification of Cabinet decisions, but that is not far off. This perhaps goes too far, and the Government’s response—that they will consider these matters further—is the right one. In today's age of spin, we cannot expect that the internal deliberations of policy within government would not be subject to speculation about who said what, when and for what motive. That would not increase confidence in the Government but would, in fact, decrease it. Having read the multitude of diaries that appeared within months of the previous Government's departure, I come from the perspective that those of us outside are better off not knowing how carelessly or, indeed, controversially serious decisions are made. I suspect that there is at least one member of the committee who would rather that his advice to Cabinet had not been the matter of such intense speculation in the aftermath of the Iraq war.

There are several good things in the report, which have been mentioned by noble Lords, on First Reading and Second Reading timescales and so on. I wholeheartedly agree with them. On the whole, the report is excellent, and while I share some disappointment about the Government’s response, I look forward to the summing up by the Minister. In the words of the noble Lord, Lord Desai, I look forward to hearing him face the music.

17:23

[Lord Hennessy of Nympsfield]

My Lords, just over 51 years ago in the other place, the constitutional historian turned politician, Sir Kenneth Pickthorn, declared that,

“procedure is all the Constitution the poor Briton has”.—[Official Report, Commons, 8/2/60; col. 70.]

Sir Kenneth would have been wiser to have said “almost all the Constitution the poor Briton has”, but there was none the less a profound truth in his words. Over the ensuing half-century, Pickthorn’s constitutional dictum has been substantially and cumulatively modified by a steady flow of statutes and codes, especially over the past 25 years, yet the value and specialness of this report from your Lordships’ Select Committee on the Constitution is the way it bridges Pickthorn’s time and our own, for it reminds us in a powerful and timely fashion of just how vital good and consistently applied procedure is to the health of our everyday constitutional practices and the methods and timetables we use or should use when fashioning new constitutional instruments for the country.

Such questions, I regret to say, rarely excite the electorate. For most people, the workings of the constitution are far from compelling as a spectator sport when lawyer speaks unto academic and footnotes duel between historians and political scientists, but procedure matters, whatever the political weathermakers that drive such considerations away from the electorate’s immediate preoccupations.

In the 1870s, the best ever observer of our national governing ways, Walter Bagehot, declared that,

“our system, though curious and peculiar, may be worked safely; but if we wish so to work it, we must study it”.

Walter Bagehot was writing there of the money markets in his classic work, Lombard Street. How true it remains for the money markets—but it also happens to apply to the workings of the British constitution.

I particularly welcome the committee’s recommendation that Ministers henceforth should prepare what one might call “constitutional impact statements” whenever Parliament is presented with a measure containing a stiff dose of constitutional change lurking in its clauses. The norm ought to be that such Bills should nestle between prelegislative and post-legislative scrutiny, although I noted what the noble Baroness, Lady Taylor, said about the implicit futility of post-legislative scrutiny when a huge Bill has gone through.

Parliament must be the central player, in all its variable geometries on the Floors and in the committees. It should be its own permanent Royal Commission on the constitution. If Parliament is not to be the thinker about as well as the prime arbiter of constitutional measures, it will suffer from what the great Ernest Bevin called a “poverty of aspiration”.

I am not a written constitution man. Part of the constitutional flexibility that we prize comes from our possessing a Gilbert and Sullivan, wandering minstrel-style constitution, a thing of shreds and patches—a mix of custom and practice, precedent, code and statute. I declare an interest as a historian by profession. I naturally prefer what is known in the trade as a historic constitution. But the force of the report before us today is that it cuts with a historical grain. It also has the lesser, if noteworthy, benefit of not having any public expenditure implications that I can see. Virtue is rarely cost free, and we should seize it, cherish it and implement it when we find it.

There may be a problem—indeed, there is—in determining which measures deserve the appellation of a substantial constitutional Bill. Could they be certified as such, like money Bills, and who would so certify them? Governments cannot be the agents for this, because of the extra parliamentary time involved. There is always a certain meanness of spirit within a Cabinet’s future legislation committee and among the business managers on that front. Might the Select Committees have a role here, as the noble Lord, Lord Desai, suggested? But those difficulties are dwarfed by the duty of care that Parliament has when it comes to altering our constitutional practices or designing new ones. The duty of care is especially demanding in the United Kingdom, because of the degree to which our constitution is still unwritten. It has never been better put than by Mr Gladstone when he said that the British constitution,

“presumes more boldly than any other the good sense and good faith of those who work it”.

Notice that verb “work”, again. Far be it from me to sub-edit the grand old man, but he might with benefit have added, “and good procedure, too”.

This report is both Bagehotian and Gladstonian in its philosophy, and I congratulate its framers. I really wish that I could congratulate the Government on their response. I am glad that in their reply to the report they undertook to consider the desirability of a special ministerial statement on the impact of constitutional Bills, but as a whole the coalition’s reply was jaded and underwhelming. It was as if the bumping and grinding of all those huge constitutional Bills that they have sent us has depressed their appetite for still more constitutional change, even of the sensible and procedural kind proposed by the Select Committee. The Government’s response to the report that we have before us was as dreary as it was weary; its mood music was a long, withdrawing sigh. I hope that the Minister will bring a touch of pep and a dash of optimism when he replies to our debate today.

17:29

[Lord Parekh]

My Lords, it is a pleasure to follow the noble Lord, Lord Hennessy of Nympsfield. I begin by thanking and congratulating the noble Baroness, Lady Jay, on the quality of the excellent report and on the wonderful and very articulate way in which she introduced it. I do not want to talk about the details of the report, most of which I welcome. But those of us who are sympathetic to the report find the Government's response deeply disappointing—something which, if submitted by an undergraduate, my good and noble friend Lord Norton would fail. If one looks at the Government’s response very closely, one gets the same feeling: that if this report were submitted by an undergraduate, the Government would fail it. The question to ask is, therefore: why is it that two sets of highly intelligent people disagree so profoundly on a matter of such great importance? Whenever that happens, it is always good to step back and ask oneself the following question: what is the deep disagreement about?

In this case, the deep disagreement is about the nature of the constitution and the constitutional change. The committee takes a particular view of the centrality of the constitution to the life of a political community, and believes that the constitution occupies an autonomous space and is “qualitatively different” from issues relating to policy and ordinary legislation. The Government make the opposite presumption that the constitution, certainly in a country such as ours, is not terribly different from ordinary forms of legislation and policy, and that the division between Bills should be made on the basis not of whether they are constitutional, but rather on how controversial they are and what kind of impact they will have upon society.

As somebody who has spent his life teaching the philosophy of constitutions, I thought I would step back a little and look at the nature of the role that the constitution plays in the life of a society and why, in our country, for the past 200 years there has always been a deep tension between two different views about the nature of the constitution. Those two views are articulated and reflected in the debate in which we are engaged.

The constitution does three things. First, it is obviously concerned with procedures, as the noble Lord, Lord Hennessy, said, but not just with them. It is also concerned with fundamental rights and liberties which are not just matters of procedures. The constitution constitutes a community. In other words, it is concerned with the procedures, principles and institutions which make it the kind of community it is and define its political identity. Secondly, these principles and procedures enjoy broad-based consensus and command the allegiance of ordinary citizens. Citizens may disagree deeply about a lot of things, but they are agreed on one thing: “These are the fundamentals to which we are committed, and therefore however much we disagree on partisan lines on other things, this country belongs to us because it is based on principles to which we subscribe”.

Thirdly, these principles and procedures enjoy a privileged status and may not be altered in the same way that other arrangements might be. Their alteration is reflected in some constitutions by requiring a supermajority—in other words, numerical majority is not enough—but that is not necessary. The privileged status of constitutional principles and conventions is recognised in the fact that they should be changed self-consciously, in full recognition of their importance, and after most careful parliamentary scrutiny and public debate. This is very easy to see when a constitution is written, because the constitution is clearly marked off from the rest of society. It occupies an autonomous space of its own; people know when the constitution is being debated and when something else is being debated.

When a constitution is unwritten, such as is the case with ours, there are several dangers. Constitutional changes are not clearly marked off from other changes and there is therefore always a temptation to make changes stealthily and not to bring them out into the open in debate, or to make them unself-consciously. In the same way that we seem to have acquired the empire absent-mindedly, we seem to be doing lots of things absent-mindedly in this country. In other words, in the case of an unwritten constitution, there is always a danger of blurring the most central qualitative distinction between constitutional matters and ordinary matters. Because this distinction is not recognised in an unwritten constitution, it fails to perform the function of a constitution and, therefore, virtually ceases to be a constitution.

At the heart of the unwritten constitution is a paradox. Precisely because it is unwritten, it is in danger of blurring the distinction between constitutional and non-constitutional changes, and therefore of undermining the constitution itself. I suggest that this is what has tended to happen in Britain over the past few years, particularly under the coalition Government: it is not right in principle and it creates practical problems. The Select Committee is absolutely right to highlight this central fact. Once we recognise that, all the changes that it proposes automatically follow, bar the practical consequences of a referendum and other things, with which one might disagree. However, by and large, all the Select Committee’s recommendations are underpinned by this central assumption.

It is precisely this that the Government’s response fails to recognise. They do not see the specificity and the distinctive nature of the constitution. While the Select Committee stresses the vital distinction between constitutionally significant changes and ordinary changes, the Government want to divide legislation according to—I could quote half a dozen phrases here—the scale of social impact, the effect on the daily lives of citizens or whether the changes are controversial and arouse considerable political concern. When the committee says that for constitutional Bills there should be a minimum of three weekends between First and Second Reading, the Government say, “Yes, you can have three weekends but not for constitutional Bills. It all depends on the Bill’s impact, complexity and how controversial it is”. In other words, they both recognise the importance of the recommendations but concentrate on different things.

The same difference is evident at almost every level. When the committee says that post-legislative scrutiny is necessary for constitutional Bills, the Government say, “Yes, but not for constitutional Bills—only for those that have a high social impact or are controversial”. That is the crux. In other words, the Select Committee wants to push our unwritten constitution in the direction of having the status of a properly written constitution. You can have an unwritten constitution but it must have the status of a written constitution. On the other hand, the Government want to move in the opposite direction. They do not want the constitution to have the status and sanctity of a constitution, and they therefore reduce important constitutional considerations to ordinary matters.

I suggest that the difference between the two views is profound. It is not just limited to the Select Committee on the one hand and the Government on the other. It lies right at the heart of contemporary British political discourse and the history of British political tradition over the past 200 years. Therefore, if the Select Committee wants to carry the country with it—I hope it will, since it has certainly carried me with it—it needs to do one very important thing. It needs to explain why the qualitative distinction between constitutional and non-constitutional changes is so crucial; and why, if you blur it, you risk, as the noble Lords, Lord Hennessy and Lord Desai, and others have pointed out, politicising fundamentals of our lives and creating a situation where we may have no solid ground on which different political parties can be united.

I very much hope that the Committee will consider something along these lines. Once we do, the next question becomes easily manageable—namely, what is a constitutional change? Many of us who have thought about this can give half a dozen different answers. In the case of our system, it is not very easy but here the committee is not entirely sure of its ground. It uses all kinds of phrases, such as “constitutional change”, “significant constitutional change”, “less significant” and “more significant”. This is not the appropriate vocabulary when talking about a constitution. Either something is constitutional or it is not. If it is constitutional, it is by definition significant. We need to take the next step and show that a constitutional practice can be defined in a straightforward way.

17:39

[Lord Tunnicliffe]

My Lords, I thank my noble friend Lady Jay of Paddington for chairing this committee and producing this report and the members of the committee who took part in the study. Normally, that is a formality, but this report is unusual because it is so profound and important. I have listened to the debate and I will not waste the Committee's time by detailed comment on individual contributions, but by my count, nine or 10 of the 12 noble Lords who have spoken have been broadly sympathetic to the report and not sympathetic to the Government’s point of view.

I place myself clearly in the majority. We are sympathetic to the report and note that there are some caveats—the noble Lords, Lord Wills and Lord Rennard, had ways that they would like to develop the report into a procedure—but the clear concern about constitutional change and how it is managed is something that we share. In saying that, we accept the implicit criticism of some of the things that we did during our Administration in the constitutional field.

This House has an important role in our constitution. In terms of the legislative process and scrutiny of the Government of the day, this House is one of the key operational checks and balances on the constitution, but the House of Lords has a further role,

“a proper role in safeguarding the constitution”.

That last point is a quotation from Professor David Feldman, Rouse Ball Professor of English Law at the University of Cambridge, from the evidence that he gave to the House of Lords Constitution Committee in preparing this excellent report.

Not only do I agree with that view, I suggest that in the content of the report and in putting it forward as a comprehensive package of proposals for an agreed process of constitutional change, this House’s Constitution Committee is precisely carrying out the role of constitutional long-stop in safeguarding the constitution of our country.

Professor Feldman argues for constitutional change not being introduced for partisan reasons. That is a noble aim, but I fear that in the context of modern politics and modern political discourse it is an impractical one. Constitutional change is not high on the list of people's priorities, perhaps especially at times of great economic difficulties. Unlike inflation, jobs, health, crime and education, it is not usually a matter of high public or party-political interest.

However, political parties from time to time seek to change the UK constitution. After a long period of very little constitutional change, when we came in as a Labour Government in 1997—and I thank all noble Lords who referred to this period favourably—we did so with a clear mandate for constitutional change, which we enacted with a programme of constitutional change that Vernon Bogdanor, former professor of government at the University of Oxford, described as a formidable series of measures. That programme included a directly elected Scottish Parliament, a directly elected National Assembly in Wales, a directly elected Assembly in Northern Ireland, directly elected mayors in London and elsewhere, legislation on human rights, freedom of information, the regulation of political parties, reform of the House of Lords and the formation of the Supreme Court—a formidable list indeed. After such a constitutional desert, the country wanted and needed constitutional change, and that is what we as a Labour Government delivered. It was a change led by us as a political party, but it was constitutional change for the whole country.

The current Government are in a very different position. As a coalition formed after a general election and with no specific coalition mandate at all from the electorate, the coalition has tried to proceed with constitutional change very much on a partisan basis. The Parliamentary Voting System and Constituencies Bill earlier this year was a wholly partisan piece of legislation. Labour vigorously opposed it in this House, and we were right to do so.

One part of the Bill on boundary changes was designed to damage the Labour Party, although it is interesting and significant how many Conservative MPs whose seats are threatened by the now published proposed boundary changes are worried and are complaining to their party that, in seeking to hurt Labour, the Act may be a major piece of Tory self-harm. The other part, providing for this year’s referendum on an alternative voting system for the Commons, was again an entirely partisan measure designed to help the other half of the coalition, the Liberal Democrats, for whom a changed voting system had long been a holy grail. A shift to AV would also have greatly benefit benefited them electorally.

Constitutional change brought forward for such partisan reasons may indeed, as that piece of legislation is showing, have unforeseen consequences. However, while the principal purpose of this report is not particularly to limit the partisan nature of some attempts at constitutional reform, it might well have exactly that effect. The principal purpose of the report is to provide an agreed method by which constitutional change is brought about based on the notion that constitutional legislation is indeed, as the report puts it, qualitatively different from other forms of legislation and that the process leading to its introduction should recognise that difference. We on this side of the Committee agree with that view. We are sorry to see that the Government do not, as is indicated by the response to the committee’s report from the Deputy Prime Minister.

That response is a poor piece of work. Essentially, it does no more than say that because no precise definition of constitutional change is offered in the committee’s report, a separate process to deal with constitutional change is inappropriate. The Deputy Prime Minister may not be able to distinguish constitutional measures from other pieces of legislation, but the law certainly can and does. Constitutional law and the study of constitutional law is a long-established and distinguished branch of the law and the legal profession.

AV Dicey, the great constitutional theorist and founding father of constitutional law, in his seminal work on the constitution, An Introduction to the Study of the Law of the Constitution, defined the term “constitutional law”, which he saw as including,

“all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state”.

In defining constitutional law, Dicey managed as long ago as 1885 to do something that, apparently, is beyond the Deputy Prime Minister now. A series of distinguished constitutional lawyers have also done so and the merest glance at the groaning shelves of the constitutional law section of a good legal bookshop show that a good few others have managed it too.

We on these Benches urge the Government to think again on this report and rethink their response. They must come up with something better, even just a little better than this wholly inadequate little shard from the Deputy Prime Minister. That the response from the Government is inadequate is particularly unfortunate because the report it is responding to is particularly good.

These Benches agree that a situation whereby the Government are effectively able to change the constitution at will should be avoided. We agree that the desire of a new Government to act quickly is no justification for bypassing proper constitutional process. We agree that the Government should not seek to pass significant constitutional legislation during the wash-up. We tried it with the Constitutional Reform and Governance Bill, and this House made it clear that we were wrong, and we accept that.

We agree that a number of weaknesses in our current constitution arise from the fact that the UK has no agreed process for significant constitutional change. We need a clear and consistent process for significant constitutional change. When a government Bill proposing significant constitutional change is introduced into either House of Parliament, the Minister responsible for the Bill should make a Written Ministerial Statement meeting the terms proposed by the Constitution Committee in its report before us today. Governments should depart from this comprehensive approach only in exceptional circumstances and where there are clearly justifiable reasons for doing so.

This is a good report from a highly regarded and well respected committee of your Lordships’ House. Rather than denigrating it, as the Government’s response seeks to do, the Government should instead accept it, adopt it and implement it. Constitutional change is important in Britain, and it is important that we get it right. So far this coalition Government have not got it right. We as a Government did not get all our constitutional change right, we acknowledge that, but as I believe is also acknowledged, we put in place a series of constitutional changes which are important, which will last and which were, in a large part, right.

Putting in place a new process for constitutional change, as this report proposes, is a valuable and helpful notion. I urge the Minister in replying to put aside the Government’s sad little formal response and take the opportunity of responding in kind to the excellent proposals made by the House of Lords Constitution Committee.

17:50

[Lord Wallace of Saltaire]

My Lords, the Government value enormously the work of this Committee in focusing greater attention on the intricacies of our constitutional protections and of the process of constitutional change. We look forward to a continuing dialogue, spilling over, we would hope, into a more informed public debate.

On this occasion, as we have heard, the Committee has found our response disappointing. I am sorry for that. The Government are not persuaded that the recommendations represent an appropriate way of proceeding.

At the heart of our disagreement, as the noble Lord, Lord Parekh, in effect suggested in his speech, is a fundamental difference of view about our current constitutional arrangements in their current unwritten form. As it stands, constitutional legislation has no special status. To provide a special process for deliberating on constitutional legislation, therefore, runs up against the problem of definition, which the committee itself acknowledges, as well as the question of what is significant and not significant.

The Government’s argument, therefore, is that constitutional legislation has to go through an effective, proper, constitutional process. We have parliamentary sovereignty. The legislative process is, therefore, the way to proceed.

I have been sitting here trying to remember what it was that I taught, as a very young university teacher, when I tried to teach the British Constitution. Things have changed a great deal since then, but the question as to what is constitutional has in many ways become a great deal more complicated. I moved on to teach international relations and the European and International dimension is in many ways the most difficult; confusions over British sovereignty and constitutional sovereignty hit us very regularly.

We have had the debate on the EU Bill, which I helped to take through this House—the question of what happens when British sovereignty is infringed. On the other hand, the IMF programme of 1976 fairly clearly infringed British sovereignty. I recall one of the Cross-Benchers some months ago arguing that the placing of British troops under foreign command would be a fundamental invasion of British sovereignty, which would have clear and significant constitutional importance. The Secretary of State for Defence remarked to me the following day that British troops had just been serving under Turkish command in ISAF in Afghanistan and that indeed British troops had first served under foreign command in the First World War. So the question of what we think is of constitutional significance—indeed what we think constitutional sovereignty is as such—is itself deeply contentious.

I got myself into deep trouble two years ago in Jersey for suggesting that the relationship with the Crown Dependencies was a matter of constitutional significance which was open to constitutional change. I was denounced for a week as a French spy and various other things in the Channel Islands press.

The domestic issue of what is constitutional—the relationship between the Executive and the legislature, and between the Government and Parliament—is clearly fundamental, but the question of whether the courts are part of this is something that we rather skirt around. When we said goodbye to the Law Lords, I was fascinated to discover that the move to a Supreme Court had indeed been taken by legislation on a partisan basis by a Gladstonian Government that was in office for only a short time more than a hundred years ago; and that the collapse of that Government and the return of the Conservative Government led to this reform being pushed back for a mere 130 years.

The relationship between central government and local government is not, it seems, a matter of constitutional significance, although we make it so on a regular basis. The relationship between central government and the devolved Administrations has clearly become part of our constitution now. The relationship between the political elite in government and Parliament and the wider public—the disillusioned, even alienated, citizens—is one that, as the noble Lord, Lord Wills, rightly pointed out, we all need to take much more into account. The question of the interrelationship between different changes is, again, one that we stumble over. I have heard several people over the past few weeks suggest that a future referendum on the relationship between the United Kingdom and the EU might provide a result in which those in England had a clear majority in one direction and those in Scotland had a clear majority in the other. That would absolutely have constitutional significance.

The process of constitutional change cannot be apolitical or consensual. It is essentially political; it defines the rules of politics. The idea of non-partisan constitutional reform, which one or two contributions suggested, seems to me to be a chimera. Alfred Venn Dicey, much cited as a neutral constitutional authority, was also rabidly anti-Irish and wrote pamphlets against home rule. Professor Philip Norton, whom I have long regarded as one of the greatest living authorities on the British constitution after only Professor Peter Hennessy—and therefore as authoritative and neutral—is also the noble Lord, Lord Norton, who has very strong and partisan views on House of Lords reform and a number of other constitutional issues. We cannot criticise government proposals as political; of course constitutional reform is political. The question is: how do we handle them and do we need different procedures?

One of the defining principles of the British constitution is its flexibility and that it is based on parliamentary sovereignty. Therefore, constitutional change is made through legislation. The core of the committee’s recommendations was for a special statement to accompany any constitutional Bill to set out the expected overall impact of the legislation. What consideration had been given to the measure before publication? What public engagement had there been? Had there been formal pre-legislative scrutiny? What post-legislative scrutiny was envisaged? The Government’s response indicated that most of the information suggested for publication is already available in the Explanatory Notes that accompany each Bill on publication. It may be that we need to consider further whether the Explanatory Notes might be accompanied by a written ministerial statement, which would be different in form but perhaps not in substance.

There are a number of other comments that one needs to make. I do not think we would wish to go into the details of internal government deliberations. I can assure noble Lords that the Cabinet committee system works extremely well at the moment, partly because this is a coalition Government and we have to negotiate through Cabinet committees. Some of our discussions are extremely sharp. The Cabinet committee system now works much more fully than it did under the previous Government for obvious reasons.

The additional hurdles—parliamentary or wider—that are suggested, will be the subjects of continuing discussion. As the noble Lord, Lord Parekh, suggested, these would be part of a major process of constitutional change. The House of Lords itself is perhaps now the largest backstop to ill-considered or overpartisan constitutional reform being pushed through the Commons. But for the Government to spell out exactly what it means by constitutional change would itself be a change in the fundamental constitutional arrangements. When the Public Bodies Bill is quoted as a constitutional Bill, we are exploring what is the outer fringes of what we regard as constitutional.

The process of post-legislative scrutiny is a matter for Parliament and the Government to determine, and I hope that noble Lords would accept that is a useful piece on which the Government should leave post-legislative scrutiny for Parliament to decide.

A number of noble Lords have quoted the Cook-Maclennan model. I remind noble Lords that I was myself a little involved in that, and so was the noble Lord, Lord Hennessy, as a neutral adviser on all this. Part of the basis for the Cook-Maclennan discussions was the expectation that Labour might not get an overall majority in 1997, so it was in effect part of a necessary preparation for what might have to be a coalition Government. Perhaps that is something that political parties should think about for the future, but it was on that occasion a preparation for something that did not happen. On this occasion, perhaps none of us prepared for something as fully as we should have done, which we had not expected to happen.

There were particular reasons of urgency underlying the decision to introduce the Parliamentary Voting System and Constituencies Bill and the Fixed-term Parliaments Bill without publishing them first in draft. I hope that I have done my best to explain that. In contrast, the process of House of Lords reform has been one on which we have gone through all the stages of consultation—Green Papers, White Papers, committees—that noble Lords could ask for, and I am not sure that it has necessarily built consensus yet or will ensure easy passage for the Bill when it is published. That is, again, of the nature of constitutional change. Building a consensus for a non-partisan constitutional change is something that academics may hope for but politicians may think is perhaps beyond what is acceptable.

The UK is facing a period of continuing constitutional change, because it is going through a period of significant social and economic change and coming to terms with highly significant changes in its international environment and in the relationship between domestic arrangements and its international obligations and constraints. We will therefore continue to need and value the work of this committee and we look forward to a continuing dialogue with the committee.

[Lord Norton of Louth]

The Minister referred to facing constitutional change, which rather implies that the Government know what “constitutional” means. As far as I interpret his speech, he seems to be confirming that the Government do not know what a constitution is and that the “two Ps” test, which worked quite well for the Constitution Committee, appears to be beyond the Government.

[Lord Wallace of Saltaire]

My Lords, the question of constitutional change is one that we will continue to argue over, and the definition of what is constitutional and is not constitutional is something that evolves through debate and argument in Parliament as well as in academic seminars. Most of us think that we know what is constitutional when we see it, but sometimes we disagree with each other.

[Lord Desai]

The Minister describes how exemplary the Government have been about the House of Lords Reform Bill, although they were was in a great hurry to do the other Bills. Would it be right to conclude that the Government will abide by the rules when that does not bother people in the recent past, but that if it was the past they will not call it constitutional?

[Lord Wallace of Saltaire]

My Lords, the Government, as I hear the Leader of this House say frequently, are strongly committed to the process of House of Lords reform. We will bring a Bill before the House and we look forward to the welcome that it will receive from the House’s resident constitutional experts.

18:05

[Baroness Jay of Paddington]

My Lords, this has been an excellent debate and I am very grateful to all noble Lords who have spoken for their high-class critique of the Select Committee’s report and their general welcome for our conclusions. I must also thank the Minister who, in his reply, was neither dreary nor weary, to quote the noble Lord, Lord Hennessy—that was the noble Lord’s description of the Government’s written response—but equally not particularly encouraging. If I look at the two fundamental points that the Select Committee wanted to make in our report, that constitutional legislation was clearly qualitatively different from other legislation and that it should be accompanied by a Written Ministerial Statement, which was in no way to be equated with Explanatory Notes—I think we made that explicit— I would have to say that the Minister was disappointing, in very much the same way as most noble Lords described the written response.

I would not agree with the opening remarks of the noble Lord, Lord Renton, about some of our proposals being over the top. I would describe them more as being practical, very measured and—I think this was the comment made by the noble Lord, Lord Wills—magisterial. I also thank the noble Lord, Lord Wills, for his development of our comments about public consultation. I think he has suggested a further inquiry for the committee, which was very helpful. I was also particularly pleased that the noble Lord, Lord Maclennan of Rogart, with his very distinguished background and record in this area of constitutional change, was so enthusiastic about our proposals. He suggested that there must be ways found for the House to take these proposals forward, perhaps through other methods of the Procedure Committee, et cetera. I look forward to some further work being done and this report not sitting on a dusty shelf. In the mean time, I beg leave to withdraw the Motion.

[The Deputy Chairman of Committees (Lord Colwyn)]

In fact, we should move that the Motion be agreed.

[Baroness Jay of Paddington]

I apologise. It shows how rusty my procedure is.

Motion Agreed.

EU and Sudan: EUC Report

Wednesday 7th December 2011 Grand Committee

Considered in Grand Committee

18:08

Moved By

[Lord Teverson]

To move that the Grand Committee do consider the report of the European Union Committee on The EU and Sudan: on the Brink of Change (18th Report, HL Paper 160).

[Lord Shutt of Greetland]

My Lords, before the noble Lord, Lord Teverson, speaks, I am told that an earlier person who sat in this chair said that there were 15 speakers signed up for the first debate and nine signed up for the second debate this afternoon. If all contributions, other than those of the openers and the winders, are kept to seven minutes, it should allow the Grand Committee to adjourn at 7.45 pm.

[Lord Teverson]

I thank the noble Lord for his contribution. I would say to him that of all the committees I have ever chaired, this is one that does not do what it is told the most, but it may be that on this occasion it might actually listen.

The story of South Sudan could, in many ways, be described as the best of fairy tales. We had the independence of Sudan back in 1956 and civil war started almost immediately and lasted up until 1972. Then we had a few years of peace and resolution, followed from 1983 right the way through to 2005 by a second civil war in this very sad, war-torn nation—the largest of the African nations. Yet, with 2 million people having perished and some 5 million having been displaced, and despite all that grief and pain which afflicted that nation during those 40 or so years, we had through the hard work, mostly of the United States, a comprehensive peace agreement. A very plain agenda was set out in 2005 and peace broke out. Most importantly, at the beginning of this year, there was a referendum of the people of South Sudan. Perhaps unexpectedly for those who feel pessimistic about Africa as a continent that in the past has not always been able to deliver democracy, the referendum went ahead very effectively. It was praised for the way in which it was handled and declared, with 98 per cent saying yes to independence. That result was respected by the Sudanese Government in Khartoum. Earlier this year, on 9 July, independence was declared with the blessing of Khartoum and the Sudanese Government—in fact, President al-Bashir was there and was respectfully received. We had in that moment the only instance in Africa of a constitutionally arranged division of a state and of a new state being born. That is quite something when we think about the history of that nation and those peoples.

Already at that time, there were great challenges. One of the things that I remember most about this inquiry, as I am sure will my fellow members of the sub-committee, is taking evidence from what were effectively two ambassadors, the head of mission of South Sudan, yet to be an independent state at that time, and the ambassador of Sudan. I meet them in Peers’ Entrance. They were chums. They were slapping each other’s backs, and it was excellent to see them together. They came up to the committee and there was great bonhomie as they started, but as we asked them questions, there was greater division and disagreement on key issues. I remember, as an example of an issue still to be resolved, the ambassador of Sudan saying to the head of mission of South Sudan, “Well, you’ve had $9.5 billion of oil revenues since the CPA in 2005. What has happened to that money?”. I am afraid that there was little answer. That was one of the problems and hazards mentioned in the report. It was a matter not so much of corruption, although that clearly exists, as of the use and disbursement of public and state funds in South Sudan. As is so often the case where there has been a liberation army, there is an army that still has to be paid and takes up a huge amount of the public exchequer. Security sector reform, therefore, is still a major area of concern.

Demarcation is another. There is no proper demarcation of boundaries between north and South Sudan. There are issues of citizenship. Neither South Sudan nor Sudan will allow dual citizenship of both states, so people have to decide. Once they have decided, there is great pressure for them to migrate back to the state where they have citizenship. That leads to a severe mismatch of skills and job opportunities throughout those two nations. There is a challenge of development. South Sudan has one of the highest maternal mortality rates in the world. It has no tarmaced roads outside Juba, its capital, and it has decided even now to move that capital from Juba to a more central location. It has hardly any schools and an illiteracy rate of some 75 per cent.

There is, of course, the continuing problem of oil. The only way that South Sudanese oil—80 per cent of the old country’s oil—can be exported, used and turned into revenue for the Government is through Port Sudan. There has to be an arrangement between the two countries. There was no agreement about the cost of transporting that oil or any such fiscal arrangements. Both countries depend absolutely on that revenue. For South Sudan, it accounts for some 98 per cent of government income.

The other challenge is the province of Abyei. I should explain that under the comprehensive peace agreement, Abyei was not allocated between the two states. How that should happen was to be agreed by the time of independence through consultation with its citizens or by referendum. That did not happen. At around the time of independence, more Sudanese forces occupied Abyei, and there was a very difficult military situation. All those challenges have reached the great situation of a new member state of the world community.

What has happened since then? We have an agreement that Ethiopian troops should come in and be peacekeepers and that the north Sudanese and South Sudanese militias should withdraw. The Ethiopian troops are there; that is the good side. However, neither of the Sudanese nations have withdrawn their own troops. In Sudan itself there are continuing problems in North Kordofan and the Blue Nile province. Unfortunately, there has been no Arab spring in Sudan, and there is little sign of it as yet.

South Sudan, too, suffers from internal violence to do with the unity of the state. There is also a situation with provincial governors, particularly Mr George Athor, one of the generals not appointed to be the governor of a state, who has taken on resistance within South Sudan. Violence in South Sudan is of great importance as well. Oil production in the south has gone down by 25 per cent, and there have been continuing disputes, many difficulties and no prices agreed. Most recently, there have been interruptions of supply. Trade between the two countries has declined in other ways and has sometimes been severed.

One of the other big problems, particularly at the Sudanese level, is a lack of trust in the world community to help deliver the solution that maybe Khartoum was looking for. One thing has not happened for good reasons, as those of us who see the violence, difficulties and human rights record of north Sudan will know. Part of the deal was that Sudan would be let back into the international community and would no longer be listed as a terrorist state by the United States. That has not happened.

However, there has been some good news. There is no war at the moment. The United Nations high-level implementation panel continues to do its good work. The transitional Government of Salva Kiir in South Sudan has some diversity in terms of gender balance and of bringing in members of other tribes. It is not completely dominated by the Dinka. Ironically, because oil reserves in South Sudan are not infinite and plans for pipelines through Uganda or Kenya to the coast are not feasible, the two nations are locked together and, in a way, have to resolve the dispute on oil for them both to survive fiscally. So there is good news out there and there is still, at the moment, world attention.

Those are the challenges within Sudan and South Sudan. I very much welcomed the government response, mainly because it almost completely agreed with our report. It is very difficult to see how we should move forward. We found the response from the European Union high representative more difficult. One of the key areas dealt with the European Union, particularly the External Action Service, having been very slow in setting up a delegation in Juba and in delivering what we would expect the European Union to be able to do. We did not receive a proper response from the high representative on that. We still look forward to it, and I am sure it will come in due course.

I was asked before this debate what I wanted to get out of it. I always saw that what we want to avoid is South Sudan, the world’s newest state, becoming one of its failed states. I want this debate to be a part of that. However, we need a stable north Sudan as well. It also has its challenges; it has lost 50 per cent of its oil revenue. We need stability in north Sudan for this part of the world to succeed. The other thing that I want to come from this debate is for South Sudan not to decline into obscurity and be forgotten as we deal with other issues in the world. If this part of Africa does not succeed and does not manage to turn around and deliver the promises of the comprehensive agreement, the world will come to regret it. What should the EU do? It is quite clear to me. The EU will not be a lead player but it is important in delivering justice, security reform, education and health structures—everything that makes a society work and gives optimism that a society can be successful.

Lastly, it is very important that other players play their full part as well. I should love to see a way for the United States to re-engage in this. We understand that it is very difficult for the US because of the situation with Sudan and the al-Bashir Government. However, the US has real leverage in this area. The other country that has leverage is the customer for that oil: China. China intervened in the disputes over oil when it stopped being delivered. I hope it will use its leverage further with the troika of the UK, the United States and Norway. Both Europe and the United Kingdom should work closely with China to make sure that South Sudan becomes the success that we always hoped it would be. I beg to move.

18:23

[Lord Selkirk of Douglas]

My Lords, I support what the noble Lord, Lord Teverson, has said. I should mention that we are naturally very anxious to publish this report as quickly as possible, before there is any possibility of it being overtaken by events. None the less, we must recognise that a great deal has happened since June, most notably the emergence of South Sudan not only as the newest state in Africa but as the 193rd country recognised by the United Nations.

I submit that the principles in the report remain entirely valid and have been adopted by the High Representative of the European Commission—the noble Baroness, Lady Ashton—and by the Government. The most important principle that we set out, and on which the EU should base its actions, is:

“A priority must be to join with the United Nations, African Union and United States to press the parties to resolve the outstanding disputes”.

There are at least five subjects that can give rise to significant disputes. The noble Lord, Lord Teverson, has touched on these and I shall deal with each in turn. First, perhaps the most worrying of the potential causes of dispute is the absence as yet of a detailed agreement between north and South Sudan on the future distribution of revenues from oil. That is still the position and within the past few days the BBC reported that South Sudan had accused Khartoum of stealing its oil. It is interesting that China, a major recipient of Sudanese oil, exhorted both countries to resolve their dispute, but so far they have failed to strike a deal. This is far from satisfactory.

Paragraph 64 of the report makes the position very clear. The bulk of the oil of the Sudan lies in the south. Furthermore, while there may be a case in the longer term for the new country of South Sudan to export some of its oil through Uganda and Kenya to the sea, in the immediate future it is extremely likely that South Sudan will export its oil through the pipeline running through north Sudan.

This means that it is extremely important that Governments of both south and the north will have to agree on having transitional arrangements which take into account the possibility that South Sudan may eventually wish to build pipelines from South Sudan to the sea. We are aware that the Norwegians have put forward proposals for transitional arrangements for the sharing of the oil wealth and recommend that the EU should support the Norwegians in the search for a solution which will meet the aspirations of both countries. In recommendation 236, we assert that,

“An agreement on the sharing of future oil revenues is needed urgently”.

Secondly, as the noble Lord, Lord Teverson, pointed out, another possible flashpoint for disagreement is Abyei, just to the north of South Sudan's border, where the prospect of armed conflict is ever present. We suggested that unauthorised troops should be withdrawn with a view to finding a permanent solution. We floated the idea of having a referendum. We made it clear the EU should be ready to support and help implement a peacekeeping operation, if required.

Thirdly, there are problems with demarcation of the border and in this connection we recommended that the EU should play a role in assisting with border demarcation and finding solutions on border management, which we believe would be of assistance. The EU should be ready to help in providing arrangements which would remove possible sources of dispute.

Fourthly, there is the very vexed question of armed militias and the proliferation of arms. Our proposals include the recommendation that the EU and its member states,

“should take stronger measures than at present to monitor and enforce the EU arms embargo on Sudan”.

In paragraph 199, we mention the threat posed by the Lord's Resistance Army and recommend blocking the financing of this organisation. Also, we have expressed a concern in paragraph 268 that the possible withdrawal of UN peacekeepers from the Democratic Republic of Congo could make it difficult to eliminate the presence of the Lord's Resistance Army. This could have a destabilising effect on neighbouring South Sudan. I do, incidentally, note that US troops have just been sent to Uganda to advise that other neighbouring country on how best to deal with the threat from the Lord’s Resistance Army.

Finally, we have welcomed the EU's support for South Sudan in the field of governance. Here we said that,

“Without an effective and independent judiciary free from corruption and based on a stronger legislature, there will be no rule of law in South Sudan”.

The elimination of corruption must be a very important aim and principle if the South Sudan Government are to receive the support they wish to have. Indeed, we have the conviction that there is a potential leadership role for the EU in the justice sector, as stated in paragraph 278.

I can only touch very briefly on the issue of aid, but I will just mention that the EU, in continuing its extensive aid programmes in co-ordination with other donors, can make a considerable difference if it is prepared to invest time, finance and practical resources in South Sudan for the foreseeable future.

To sum up, we welcome very strongly the commitment of the noble Baroness, Lady Ashton, the High Representative of the European Union for Foreign Affairs and Security Policy, to upgrade the EU office in South Sudan into an EU delegation with a new head of delegation and also plan development support in the areas of justice and the rule of law, education, health, water management, urban planning and food security and rural development. We do very anxiously want to see peaceful relations between north and south.

I would echo what the noble Lord, Lord Teverson, said. The average life expectancy of men in Sudan is only 58, and 1.5 million people died during the decades of warfare between north and south. I suggest that, while the EU can be of only limited assistance, if all the EU countries combine with a common policy to assist, as has happened, a real difference can and should be made. We wish South Sudan well, whatever the challenges ahead, and hope that the deliberations of the new Government will meet with success. We intend that the EU should play an effective and committed role in helping the people who have endured so very much suffering and upheaval at last to find a framework for peace, security and stability.

18:30

[Lord Sewel]

My Lords, this has all the features of a red-line debate, in which you sit and look at your notes and put a red line through the points made by earlier speakers. In that case, even by the time you get to the third speaker, you are left with a rather short speech. The alternative formulation is that if a point has been made and is a good point, it bears repeating. There is likely to be a number of points that will be repeated over the next three-quarters of an hour or so—or perhaps more.

The report was published in June and we are debating it in December. Normally, a delay of that length would be a matter of regret, if not criticism. In this instance, it has actually created an opportunity, because it has given us five months to see how the new state of South Sudan has emerged and how some of the issues are moving towards resolution or not. It gives the Government the opportunity to give us their assessment of where progress is being made and where it has either not been made or the agenda has slipped back. I very much look forward to hearing the Government’s assessment.

The challenges facing South Sudan are many, and so overwhelming that, as the noble Lord, Lord Teverson, has said, we had a very real fear that what we were seeing was a state almost born to fail—that it would quickly join the growing list of failed states. There must be a real, co-ordinated international effort to try to prevent that happening, but there remains a probability. Our underlying doubt was whether the state of South Sudan had, from its inception, sufficiently developed state institutions to enable the state to operate in anything approaching what one would expect of a properly functioning and effective organisation. At paragraph 263, we observed:

“Their prime need is for administrative capacity building, not least so that they can absorb the assistance which they need from the international community to enable them to fulfil fully the functions of a sovereign state. The EU should use the existing instruments at its disposal to assist in the task of strengthening weak institutions, building an effective police force and judicial and dispute resolution institutions, and addressing powerful ethnic and political grievances and intense competition over land and natural resources”.

That paragraph really sums up the scale of the problem facing the world’s newest state—newest and perhaps most vulnerable.

Another series of fundamental concerns relate to the area of external and internal security. Externally, the threat of destabilisation originating from the north centred around outstanding boundary disputes and failure to reach agreement on future oil revenues. Internally, the threat arises from local armed militias and the horrific activities of the Lord's Resistance Army. It would be useful to know from the Government if they see any glimmer of hope in that area at all.

Internal causes of concern focus around the problem of endemic corruption and especially how it impinges on the distribution and proper use of oil revenues within South Sudan and on the effects that it has on donor confidence. That is of major importance. People are not going to go into South Sudan—NGOs or states—if they think that they are at such a level of corruption that it will basically nullify their efforts.

A further set of internal concerns relate, as has been pointed out by the noble Lord, Lord Selkirk of Douglas, to the areas of the rule of law, independent judiciary and human rights. I have to say that sitting on an EU Sub-Committee these concerns are not just limited to African states; there are some that are trying to knock at the door at the EU where the same sort of issue arises. So let us not compartmentalise this and say that it is purely a developing world issue; it is not.

We are an EU Sub-Committee, and throughout our report we make a number of observations on the role and contribution of the EU. In paragraph 250, we observed:

“We are very concerned that the EU has not built up its presence in Juba sufficiently or quickly enough. Given the size of the task ahead this must be acted upon immediately. The EU's performance in South Sudan will be a test for the effectiveness of its new External Action Service. We strongly urge the EU to expedite the administrative procedures for appointing a new Head of Delegation and setting up a fully functioning and expanded office with adequate accommodation”.

Could the Government give us an up-to-date account of where that has reached and what sort of capacity the EU is now able to bring to the problem?

There is another international organisation of perhaps growing importance in this part of Africa, the African Union, which historically has not been an interventionist organisation—and, quite honestly, I think that Africa has suffered from that. In the lead-up to the referendum, it asserted itself and helped to resolve problems. The critical question is whether that has been capable of being sustained and is the African Union now helping to resolve the outstanding problems to which noble Lords have referred. Again, it would be useful if the Government could give us an up-to-date assessment of the situation.

I have drawn attention to the African Union because, although the EU and individual member states of the EU and the United States—and the UN, to an extent—can help through aid and expertise, the problems that South Sudan faces are essentially African problems. That is so not least because how far developments in South Sudan go will have inevitable consequences on its neighbours, inhabiting one of the most sensitive and difficult regions of Africa.

18:40

[Lord Chidgey]

My Lords, I express my congratulations to the committee for the work it has done in preparing this report. I also acknowledge the comments that the noble Lord, Lord Sewel, has just made, particularly on the African Union—something that was not particularly well covered in the earlier statements, but which is very important for the future.

I speak in this debate as the vice-chair of the Associate All-Party Parliamentary Group for Sudan—and South Sudan, of course, now. In that guise, I had the opportunity to visit Juba and Khartoum with the group shortly after the referendum and before the independence of South Sudan earlier this year. We quickly discovered a stark, even macabre, contrast between the two. Khartoum is all towering office blocks and shiny five-star hotels, with modern motorways snaking between them, while Juba had some 30 kilometres of surfaced road around a collection of crumbling buildings that served as the city centre. The best hotel in town was easily recognisable as a former army barracks—nevertheless, charging room rates well into the oil state category, with payment required in US dollars in cash.

Juba had no banks. Carrying around plastic bags stuffed with dollars was not for the faint-hearted, given the frequent warnings not to stray into town day or night for fear of being robbed or shot or kidnapped—or all three.

Juba had few paved roads; little in the way of basic services; failing schools, where teachers had not been paid for months; and hospitals that hardly functioned. Added to this mix was the mass inward migration of indigenous southern Sudanese returning from the north by bus and Nile barge at the rate, we believe, of several thousand a day. By the time this exodus from the north is complete, some 2 million southern Sudanese are expected to have come home to the south.

Some six months after our visit, the Government's response to the recommendations in the sub-committee report allows us to compare and contrast the circumstances in Sudan, particularly South Sudan, then and now. In this context, I ask the Minister to respond to further questions arising from some of these key passages—if not during this debate, then perhaps later in writing.

In paragraph 230 in the recommendations, and also referred to in paragraph 257, the Government stress the importance of creating a prosperous economy to the future of Sudan and that there are no trade sanctions on Sudan from the UK or the EU and no legal obstacles to trade. Do the Government agree that the major obstacles to trade are in fact the lack of a credible banking and financial system, and to investment, the endemic corruption throughout the state and business sectors? What interventions is the UK making to address these crucial obstacles, to protect British interests and to create conditions for greater investment confidence?

In response to paragraph 233, the Government rightly acknowledge that proper accounting for oil revenue is a high priority for the Government of South Sudan. Can the Minister provide an updated assessment of progress since independence in July of this year—some while ago now—in improving financial management of public sector finances in South Sudan and reducing loss of funds through corruption?

While the report calls for South Sudan to enhance its accounting ability by building up structures for budgeting expenditure and auditing, this should be seen against the severe capacity shortfall that is a legacy of the historic inadequate education system in the south, a result of which is that some 60 per cent of civil servants have not progressed beyond primary school education and most, if not all, Ministers in the Government have been drawn from the officer corps of the SPLA, the Sudanese People’s Liberation Army.

In response to paragraphs 250 and 251, the Government have noted that the UK continues to play a leading role in diplomatic presence and interests, with the EU, to maintain a high level of engagement. In February, when we visited, we noted that in Juba most of the western donor countries, together with the EU mission, shared a diplomatic compound which provided secure, effective and efficient accommodation. Could the Minister tell the House what the current and planned arrangements are now?

In response to paragraph 259, the Government recognise the need for humanitarian aid to reach the most vulnerable according to need. Do the Government agree that one of the most vulnerable groups is that of the orphaned or displaced children shipped down from the north by bus or Nile barge, often unaccompanied?

In February, we discovered during our visit dozens of small children, some no more than four years old, who were found wandering in the Juba markets by volunteers who fed and clothed them, and placed them in a one-room playschool funded mainly by ad hoc contributions from expatriates. At night, however, they had to return to the markets. We were told that by the time the girls reached nine or 10, they left to work in the market brothels. There they stayed until their premature death, usually in their early teens. No one seemed to know what happened to the boys.

With the numbers of children being shipped south thought to run into thousands, what intervention are the Government making with the Governments of the south and the north to curb this appalling abuse? While the Government agree with the recommendations in paragraph 263 on the need for capacity-building, can they confirm that in the absence of state capacity the Sudanese community has become more and more dependent on international NGOs to deliver essential services, creating a dependency culture, particularly in the urban areas? What plans do the Government have, with other donor agencies, for tackling this development?

The Government also agree with the recommendations in paragraph 264, calling for support for agricultural investment. The urgency of this can be measured by the huge reduction in land under cultivation in Sudan as a result of some 20 years of civil war. Some donor-supported agriculture projects we visited frankly proved clearly inept or inadequate. In addition, relocating urban dwellers returning from northern Sudan's towns and cities to rural areas in the south, while equipping them with farming tools and settling them on smallholdings with ill-defined land titles, hardly seemed to be a recipe for agricultural progress.

In response to paragraph 266, concerning the high levels of corruption in South Sudan, the Government state that this area is one of DfID's high priorities. What evidence is there that the Government of South Sudan are responding to this programme of support and engagement? After some six months, does the evidence show that corruption is declining or increasing? Finally, on the Government's response to paragraph 273, they note that the EU is currently drafting a joint strategy paper on the effective co-ordination of aid and the priorities of South Sudan. How does this strategy fit with the responsibilities assumed by the troika of nations that witnessed the comprehensive peace agreement: the United States, Norway and the United Kingdom?

18:47

[Lord Jay of Ewelme]

My Lords, as the noble Lord, Lord Teverson, said, last year was a positive year for Sudan and, I would say, a positive year, too, for conflict resolution and peaceful change in Africa. The referendum was held, its result was clear and respected and President al-Bashir's presence in Juba was wise and right. Yet there are huge and unpredictable problems still in Darfur, which I will not say more about this evening, and in the disputed areas of Abyei, south Kordofan and Blue Nile. Abyei is now, I suppose, in a sort of semi-stable limbo but I find the prospects for south Kordofan and Blue Nile pretty worrying. There was a rather chilling remark in the recent EIU report that those conflicts have the potential to become as entrenched and protracted as the Darfur conflict, which is a very worrying thought indeed.

There is a huge responsibility on both the north and South Sudan, and on the African Union, which has been commendably involved in Sudan’s difficulties, as the noble Lord, Lord Sewel, said, to ensure that the descent into conflict is avoided. As others have said, it is hugely important, too, that the issue of oil is resolved. That can be hugely divisive but it can also be a unifying factor in the future of Sudan. If either the north or the south uses oil as a weapon against the other, then both will suffer because both need the revenues. If they work out an agreed formula for sharing it, both will benefit. Let us hope that they do.

I want to focus mostly on the south and I must declare an interest as chairman of the medical NGO Merlin, which has health programmes which I have visited in Juba, Torit and Nimule in South Sudan. The south is shockingly poor. One in eight children dies before the age of five, maternal mortality is one of the highest in the world, and when I was there two years ago—the noble Lord, Lord Teverson, says that it is the same now—there were no paved roads outside Juba and the legacy of civil war is evident, with mines in the roads and fields, people getting injured and killed by those mines and populations disturbed by the legacy of civil war. Yet, with the oil, the south is potentially wealthy. Per capita income in the south is 25 per cent higher than in the north, except that the vast majority of people in the south do not see anything of it. The need to diversify the economy away from oil dependency is huge, as it the need to develop a proper agricultural sector, to start an industrial sector and to build the human capacity necessary for both and to manage and govern a country of some 8 million people. These are huge tasks, and they will require well focused long-term aid from international and national donors, including DfID, which is commendably involved in Sudan. I also echo what others have said about how important and encouraging it is that China is involved in the development of both north and South Sudan. It clearly has a big role to play as part of the international development effort. Perhaps the Minister will confirm that there is good and constructive conflict between China and other major donors, including the UK, in Juba and the south.

[Lord Radice]

The noble Lord said “conflict”. I think he meant “co-operation”.

[Lord Jay of Ewelme]

I meant contact.

Aid needs to be well directed and focused on those who need it most. In September this year, the 38 NGOs working on peace-building, development and humanitarian assistance in South Sudan published an excellent paper called, rather cleverly, I thought, Getting it Right from the Start: Priorities for Action in the New Republic of South Sudan. It is good to see NGOs working together like that rather than working against each other. The recommendations in that report make a great deal of sense. I would like to mention three of them.

The first is the need to balance longer-term development assistance with continued support for emergency humanitarian needs because in South Sudan there is no neat continuum from conflict through the need for emergency aid to the need for development aid. For some years, South Sudan will need both emergency aid and development assistance to build capacity and, at the same time, to provide direct emergency help for those who need it most, including those displaced by conflict and those now returning to South Sudan. I hope DfID can take the lead in getting aid administrations to recognise the importance of that. Perhaps the Minister can confirm that too.

Secondly, there is a real need to focus on building capacity in Juba and the different counties across key sectors. That is an absolute precondition for successful longer-term development. Thirdly, there is ensuring that that aid, whether emergency aid or development aid, is provided on time and without interruption, and that has not always been the case in South Sudan. There have been delays, gaps, overlaps and short-termism. It is impossible for the still embryonic South Sudan Administration to govern effectively unless the continuity of aid, including an assurance of long-term aid, is made absolutely clear to them now.

Two million people were killed in Sudan’s 20-year civil war. I believe that the referendum this year and the creation of South Sudan provide a real chance to build a better future. That is not, as all who have spoken tonight have made clear, by any means assured, as conflict in the regions at risk remains a real possibility. I was pessimistic before the referendum about whether it would be accepted by both sides, and I am delighted that I was wrong. The job now is to convert that achievement into longer-term and sustainable growth and development that will benefit all in the south. That will require the constant engagement of the international community, and economic, political development. I hope that the Minister can give an assurance that Her Majesty’s Government and DfID will continue to be closely involved and indeed to take a lead in that.

18:55

[Lord Trimble]

My Lords, in thinking about this debate, I am conscious of the point made by the noble Lord, Lord Sewel, about the tendency to repetition. As the report and the speeches so far have, understandably, concentrated on South Sudan, I will address a few remarks to Sudan itself.

I was struck by the comment that appears in paragraph 12 of our report from Gill Lusk, giving her description of the Sudanese Government. She said that,

“the Sudanese government was a civilian one, but run by the security services”.

She described their immediate aim as survival. She said that their long-term policy was to establish their version of Islamic rule. Rather than using the term Islamic she might have been more accurate to use the term Islamist, because that gets you into the right context. We must remember that Sudan was the country that Bin Laden went to as a matter of choice until American pressure drove him out. That is partly why the Americans took such an interest in Sudan. We should bear that in mind.

I note also that the International Crisis Group report dated 26 September says:

“The loss of South Sudan has had a profound effect on the NCP, and senior generals led a soft-coup within the party. They have outflanked more pragmatic elements in the NCP who seek a negotiated strategy”.

We can see the effect of that soft coup by looking at what has been happening in the troubled peripheral regions of Sudan. Abyei has been mentioned.

On the point of the publication of our report on 20 June, Presidents al-Bashir and Salva Kiir, from Sudan and South Sudan, signed an agreement in Addis Ababa under which all northern troops would be withdrawn, as would the southern Sudanese, and be replaced by an Ethiopian-led UN interim security force. As mentioned by the noble Lord, Lord Teverson, the Ethiopian force is there, but the northern troops have not withdrawn and neither have the southern troops. There is a stand-off taking place and limbo there as well. The hopes that were there on 20 June have disappeared.

Similarly, on 28 June, a framework agreement was entered into, which includes political and security agreement for Southern Kordofan and Blue Nile, and which was facilitated by Thabo Mbeki and the Prime Minister of Ethiopia and signed by the co-deputy NCP chairman and presidential adviser, Nafie Ali Nafie. The generals who had conducted the soft coup objected to this and a few days later President al-Bashir publicly disavowed the agreement. Since then, Kordofan and Blue Nile have descended into considerable violence. In view of the time, I will not go into dealing with the large forces that are there and the atrocities that have been committed, but they are unfortunately familiar with what has gone on.

There have been some encouraging matters. The visit by al-Bashir to South Sudan at the time of independence was encouraging, likewise, the journey in early October by Salva Kiir to Khartoum, where he was received with full ceremony and protocol appropriate to a visiting foreign head of state. Both parties committed themselves to resolving disagreements peacefully through dialogue and to avoid a return to war, but the Economist country report published in Nov 2011 concludes:

“In reality, evidence of progress is scarce and deadlines announced … look certain to be missed”.

Although with an eye to oil production and exports, the report says it is unlikely that either party will drive things to the point of open conflict.

One can see a similar pattern in Darfur. In July, the National Congress Party came to an agreement with one Darfuri faction—it is referred to as the Doha document; the faction was the Liberation and Justice Movement from Darfur. There, problems are on both sides. The larger Justice and Equality Movement was outside the Doha process, although it indicated at one stage a willingness to engage in discussions if the Doha document could be reopened. The Government have refused to do that and there has been no progress.

Latterly, we have seen a degree of coalescence between the Justice and Equality Movement and the SPLM-North, which are the forces active in Blue Nile and Southern Kordofan, and a link-up with other political groups within Sudan which have the general objective of regime change within Sudan. I would be very interested to know the Government’s assessment of those matters. We keep forgetting the huge size of these countries. The Khartoum Administration probably do not have the logistic capability to project their force to their borders. Consequently, these forces dealing with the borders have the potential to last for a considerable period unless there are interventions and initiatives elsewhere.

I confess to being a little disappointed by the Government’s response on these points. It refers to the Abyei interim agreement and states:

“We, the EU and the rest of the International Community will be monitoring the situation closely to ensure both sides comply with the terms of the agreements”.

Well, neither side has complied with the terms of the agreement. Many months have passed since then. I would be interested to see what the Government are considering doing.

I notice that the Government say in other responses that they will continue to support Thabo Mbeki and the African Union initiative. We may be polite about the African Union, but the reality is that it is not effective. Indeed, we saw in the Libyan situation that some of the things that the African Union does are most unhelpful. Thabo Mbeki may be a former President, but I bear in mind his ineffectiveness with regard to problems in Zimbabwe, which may be a greater indication for the future.

There is in these matters and reports of this nature a certain polite fiction that governs them. They are all notionally addressed to the EU and its involvement, but the truth is that the EU is not a major player in this. The comprehensive peace agreement was produced by the troika, Norway, the United Kingdom and the US, and the major player there was the US. I treasure the comment made in the margins of our meetings at one stage, where someone who shall remain anonymous plaintively inquired, “Why is it that Norway carries more weight in this matter than the EU?” That is just one of the pleasures of our discussions.

Unfortunately, while the comprehensive peace agreement was produced largely by American pressure, that pressure is unlikely to be renewed in the near future because the current President does not believe in exerting it. Speeches will not change the Administration in Khartoum. When people referred to the Administration, I thought, “Now, if I want to think about what they are likely to do, I just have to ask myself, ‘What would Gerry do?’”. That refers to my talks partner in Northern Ireland. I know what he would do in this situation if he was in Khartoum: he would hunker down until attention drifted elsewhere and then return to following his agenda. That agenda is set out by Gill Lusk. We have to take account of that. I cannot see the EU being effective on this; I cannot see the AU being effective on this; but we need to be effective. Concern was expressed earlier in this debate about South Sudan being a failed state. We have to bear in mind that north Sudan is not much better.

19:05

[Lord Alton of Liverpool]

My Lords, like the noble Lord, Lord Chidgey, I am an officer of the All-Party Associate Parliamentary Group for Sudan, and I thank the noble Lord, Lord Teverson, and the sub-committee for accepting written evidence from the All-Party Group and for welcoming its members during its proceedings. Inevitably, the sub-committee’s report has a considerable focus on the European Union, and I echo some of what the noble Lord, Lord Trimble, has just said. I hope that when the Minister replies she will make some reference to the very first action of Salva Kiir’s incoming Government, which was to apply for membership of the Commonwealth. It seems to me that this is an opportunity for the United Kingdom, particularly in the role that we play in the Commonwealth, to build a deep and lasting relationship with the world’s newest nation.

As the noble Lord, Lord Sewel, said, it is in some ways sad when reports are delayed, but there is real topicality and edge to this debate because of events that are going on even while we meet. There was a report in today’s newspaper, which I have shared with the noble Baroness, Lady Kinnock, that from a launch pad in the town of Kadugli, the towns of Kauda and Alburam and surrounding villages were targeted in the past 24 hours by Iranian rocket missiles fired against civilians. In my remarks, I want to talk about the situation in South Kordofan, Abyei and Blue Nile, as others have done.

It is very unusual for there to be a debate on Sudan in which we will not hear the voice of my noble friend Lady Cox. At present, she is in Westminster Abbey giving one of the readings at a carol service during which a collection is being taken up for her small charity, HART, which does such admirable work in Sudan and in many other parts of the world, so I would like to place on record the reason why she is not here to speak today. I also want to pay tribute to her work in that part of the world, where she has been so many times over the years, and to the work of HART’s Lydia Turner, who has prepared such an excellent briefing in advance of today’s debate.

Previous speakers have referred to the comment in the summary of the sub-committee’s report:

“We assess the risk that the new country of South Sudan will fail as a state as high, even if the international community maintains the current levels of assistance and support”.

There is a danger in making statements of this kind, not least because they can become self-fulfilling prophecies. I also rather disliked the statement because it is what Khartoum has always insisted will happen. I am surprised that at this point in the report’s summary no mention is made of the hostile role of the Republic of Sudan—northern Sudan—whose behaviour is the principal reason why the south is battling against such daunting odds.

We know what constitutes a state that fails, but what name do you give to a state such as north Sudan, whose bombing campaign against the south led, as we heard from the noble Lord, Lord Jay, a few moments ago, to the deaths of 2 million people during the civil war and whose decision in 1983 to impose Sharia law in that religiously diverse nation led to the civil war which ensued? What do you call a state which declared war on its own people in Darfur, seeking the forced Arabisation of African peoples and lands, their enslavement and the imposition of its extremist form of Islam, leading to the deaths of around 400,000 mainly Muslim people and the displacement of 2 million others?

[Lord Radice]

Does the noble Lord consider that in fact South Sudan will not succeed unless there is regime change in Sudan proper? Is that part of his argument? It seems to be leading to that.

[Lord Alton of Liverpool]

My Lords, others have commented on the possibility of the Arab spring having some effect in the Republic of Sudan in due course. We will see, but in the past 24 hours 1,000 people in Khartoum were chanting their support for the Syrian opposition and then started to demand a change in the Khartoum regime led by Field-Marshal Omar al-Bashir. I think it is too early to say but, rather like the noble Lord, I hope that there will be change in Sudan as there will, we hope, be positive change in many other places in that part of the world.

During the civil war that I referred to, I travelled with the SPLA into southern Sudan and saw the situation first hand. Four years later, I went to Darfur where I took first-hand accounts from some of the Darfuri victims of what clearly constituted the first genocide of the 21st century. Those accounts of rape and murder and the depredations of the Janjaweed militia will always be with me. What do you call a state whose leaders permit such atrocities to occur? The International Criminal Court has given it a name; it is an indicted state. In July 2008, Luis Moreno Ocampo, the prosecutor of the ICC, indicted Omar al-Bashir and in 2009, the ICC judges in The Hague issued a warrant for his arrest for crimes against humanity, the first against a sitting head of state. Only last week, the Defence Minister, Abdelrahim Mohamed Hussein, was similarly indicted. Egregious crimes have been committed by the highest levels of government, and the killing continues while we meet.

Northern Sudan has become a pariah state and fails every test of how a civilised or humane Government should behave. Even as those independence celebrations were taking place last July, a chain of political and military developments, initiated by Khartoum, have once again placed the region on the brink of outright civil war. It is worth mentioning in this context that some 70 per cent of Sudan’s income, the oil income that has been referred to, is being used for military expenditure to fuel this killing.

Although the post-independence violence came as no surprise, the sheer ferocity of the attacks in southern Kordofan, Abyei and Blue Nile, areas located along the new international border, has been truly shocking. In southern Kordofan heavy fighting continues between SPLA-North and Sudan’s armed forces. On 1 December, the SAF claimed to have taken the town of Taruje, a claim refuted by the SPLM-North who said that fighting is ongoing. Earlier today, I met with representatives of the SPLM-North and they particularly raised with me the failure to investigate the apparent collaboration of peacekeepers in the massacre of escaping refugees in Kadugli, an issue that I raised on the Floor of the House earlier this year. They described the humanitarian situation as disastrous, with 2 million people across the border region now threatened with starvation.

Aid agencies suggest that at least 305,000 people are displaced in southern Kordofan. Aerial bombardment continues and the humanitarian conditions for the displaced are deteriorating with many hiding in caves in the mountains at great risk.

In Blue Nile, reports from numerous sources consistently describe offences and atrocities perpetrated there by the Government of Sudan similar to those that I have just referred to. They, too, involve aerial bombardment resulting in civilian deaths and injuries, denial of access for humanitarian aid, extra-judicial killings, detention and torture of civilians and looting of civilian properties. It is estimated that up to 400,000 people have now been displaced from southern Kordofan and Blue Nile and 30,000 to 40,000 of them have fled into Ethiopia.

In Abyei, more than 120,000 of the indigenous Ngok Dinka population have fled to South Sudan. Many aid organisations, including Oxfam, have pulled out of the region. As the noble Lord, Lord Teverson, rightly reminded us earlier on, Abyei is mistakenly being identified as part of the Republic of Sudan, when no settlement of that matter, as the noble Lord, Lord Selkirk, said earlier, has been made.

There are reliable reports that Khartoum has issued death sentences to 19 SPLM civilians. As a result, some of those are now being held at Kober prison, among them the renowned writer and poet, Mr Abdel-Monim Rahma. Meanwhile, while those tragic events have been unfolding, the flow of oil from the south, as we have heard, has been halted. Here is an opportunity with China which has been referred to in this debate. The economics of Sudan will influence China. Her Majesty’s Government need to have serious bilateral discussions with China about how together we might be able to make some sense of this appalling situation.

The United Nations Security Council and the international community must urgently respond to the following questions and issues, such as the Government of Sudan’s continuing military offences, including these aerial bombardments. We must revisit the issue of the no-fly zone. On 11 August, the noble Lord, Lord Howell, told me that:

“A no-fly zone in Darfur and Southern Kordofan would be a major logistical challenge”.—[Official Report, 11/8/11; col. WA 444.]

Are we seriously saying that if the political will were there the logistical challenges could not be overcome? As the dry season approaches, there is acute fear of an intensification of military activities, with grave consequences for the civilian population. We must demand access by humanitarian agencies that are denied access at this present time.

On 9 November, the noble Lord, Lord Howell, told me that,

“we continue to work closely with United Nations agencies and international partners to seek urgent access to those most affected by the conflict”.—[Official Report, 9/11/11; col. WA 66.]

What have those urgent endeavours achieved? We need an international independent committee of inquiry to be sent to southern Kordofan, Blue Nile and Abyei to investigate and report on these recent developments.

On 21 June, the noble Lord said:

“Reports of such atrocities will have to be investigated and, if they prove to be true, those responsible will need to be brought to account”.—[Official Report, 21/6/11; col. WA 294.]

More than five months have now elapsed. What results have the investigations yielded, and who has been held to account?

On 11 August, the Minister said:

“We are deeply concerned by reports of this attack on the hospital north of Kauda Valley and other attacks. We continue to urge for a ceasefire, and for access so that these claims can be fully investigated. We will, if necessary, consider action to refer the situation in Southern Kordofan to the International Criminal Court”.—[Official Report, 11/8/11; col. WA 444.]

Have we now done that?

On 11 August, the Minister also told me that he found the UNMIS report, The Human Rights Situation During the Recent Violence in Southern Kordofan Sudan, “deeply concerning”. He went on to say:

“We will, if necessary, consider action to refer the situation in Southern Kordofan to the International Criminal Court”.—[Official Report, 11/8/11; col. WA 446.]

Have we done that?

There are two things that the UK should do immediately. First, the British Government should seriously consider implementing targeted sanctions to try to halt Khartoum’s continuing policies, which are inflicting widespread death and destruction. These could include a UK trade embargo and diplomatic sanctions imposed on senior politicians in Khartoum’s ruling party responsible for the humanitarian crisis and human rights offences. On 10 November, the Minister told me:

“We judge that further targeted travel sanctions would not help at this stage in achieving our objectives, but will keep this under review in consultation with European Union and United Nations partners”.—[Official Report, 10/11/11; col. WA 95.]

What has to happen for us to do that?

The Sudanese bishop, Macram Max Gassis, one of the most courageous and wise men in Africa, once said:

“Peace without justice is like building a house without foundations; it is a pseudo-peace doomed to collapse at the very first storm”.

If north and South Sudan are to have any kind of future, the north will have to learn to coexist with the south, and there will have to be justice as well as peace. Britain and China, I re-emphasise, should work with one another to try to facilitate this. Following Rwanda, we said that we would never countenance another genocide—“Never again”, we said. But it is “Never again” all over again in south Kordofan and this part of Sudan, unless we act.

19:17

[Lord Elton]

I did not come here with the intention of speaking. I came here with the intention of learning, and I have learnt some very uncomfortable facts and am left with some uncomfortable questions. I suspect that the very illuminating speeches, the last two in this debate, will cause some untidiness in the language in which we describe what is going on in that part of Africa.

The question that we all ask is what we can do to bring this tragic story to a happy conclusion. The question that I am left with is a much smaller one which I would like the Minister to answer after she has answered all the questions that the noble Lord, Lord Alton, asked so eloquently a moment ago. I look forward to those answers with great interest. How many of the members of the Government of Khartoum are welcomed into our capital city and elsewhere? Do they have property here? Do they enjoy the rights of civilians here? If a British citizen kills one person the least he gets is a mandatory life sentence. What do generals who have arranged the murder of thousands get in return if they come to this city of ours?

19:18

[Baroness Kinnock of Holyhead]

My Lords, I thank the noble Lord, Lord Teverson, and the committee for taking the initiative in writing and preparing this excellent report. Indeed, we welcome the opportunity to take stock this evening of where we are now in the wake of the excellent assessment made by the committee on the challenges faced by Sudan and the role of the European Union in efforts to build peace, security, governance and developments. These objectives, as many noble Lords have said, apply to both Sudan and South Sudan, which both face uncertainty and potentially increasing tension and conflict created by a raft of unresolved contentious issues.

While the focus this evening has been mostly on South Sudan, we should urge the European Union and all donors to be vigilant and be careful not to neglect the need to respond to the destabilising effect of South Sudan’s independence on the north, where the economy is in serious trouble after two decades of mismanagement in Khartoum by the NIF—with huge military expenditure, corruption and cronyism. Add to this a potential 37 per cent decline in oil revenues and inflation at 15 per cent and rising. Foreign exchange reserves are at an extremely low level and very painful cuts are hurting the people of Sudan. Behind all this is a gigantic $38 billion of external debt.

There are clear reasons for remaining engaged with the Republic of Sudan and for the EU to persevere with what is described as a “comprehensive approach” approved by Foreign Ministers at the Council in Brussels in June.

The EU has had and does have a central and important role to play. EU funding has for many years been crucial in Sudan, especially in South Sudan, in terms of the support given to grassroots human rights organisations—the programme in Khartoum has been and is excellent—and work on food security issues in the south and east. ECHO, the humanitarian office of the EU, continues to provide a critical lifeline to Darfur and to the south. The EU provides a balanced set of incentives to both Sudan and South Sudan to settle their differences peacefully and focus on development. So far, as noble Lords have intimated, those incentives have not persuaded either country to settle their differences. However, it is important that they know and understand that these incentives are there, and there should be intensified efforts to support the urgent need to encourage dialogue and co-operation.

The place to do this is clearly through African Union’s Thabo Mbeki panel. I know that a number of noble Lords have referred to this and made disparaging comments about it. It is a difficult situation, but it is the only show in town. There is no prospect of dialogue and discussion other than through the African Union. It is the only place where the two sides are likely to go for that dialogue. Thabo Mbeki, in my judgment, has been doing a very good job of ensuring that discussions take place. He has done that in very difficult circumstances. It is not ideal, but it is the best hope that we have of brokering agreements between the north and the south on, for instance, oil revenue, citizenship, borders and Abyei. Another option is the joint Africa-EU strategy, which has the potential to provide the space for some political dialogue.

In just a few weeks, the people of South Sudan will mark the anniversary of their vote last year to secede from the north. As two members of the APG who are here today have said, when we went to South Sudan, we met with enormous hope and expectation. We have memories of people who could not even say “referendum” without breaking out into a huge grin of happiness and satisfaction. They believed; the expectations were high. They told us that there would be new roads, clinics, jobs, food and schools for their kids. Most of all, they looked forward to peace and security at last.

It is therefore unthinkable that donors, including the EU, cannot now effectively respond to support a Government who need to tackle chronic poverty and make some progress to reaching the millennium development goals, which are currently way out of reach. The scale of the challenge is daunting and the statistics truly shocking. Save the Children has highlighted that South Sudan, as other noble Lords have said, has the highest maternal mortality rate in the world.

Access to services is rare. The women die of haemorrhage, infection, obstructed labour and, indeed, of unsafe abortion. There is widespread malnutrition among children, which leads to stunting and lifelong underdevelopment. South Sudan has one of the lowest routine immunisation coverage rates on earth; only about 10 per cent of children are fully vaccinated. The women of South Sudan are among the poorest and most marginalised of the world; 92 per cent of them are illiterate. This is deplorable. In human development terms, it is as bad as you can get and it demands a focus on human, social and economic capacity to develop infrastructure, social services and public services.

Last month, the EU held a workshop in Juba where the discussion was about how to streamline effective measures designed to ensure that EU assistance can be effective. The workshop was organised by the EU special representative, Dame Rosalind Marsden, who, as I understand it, was somewhat criticised by the committee for not actually living in Sudan.

[Noble Lords]

No!

[Baroness Kinnock of Holyhead]

No? Good. This was not in the report but I was told that in an exchange she was made to feel that there was some criticism of her on that score. Clearly, if that was not the case—

[Lord Teverson]

Perhaps I can make it clear that that was absolutely not the case.

[Baroness Kinnock of Holyhead]

Thank you very much for clarifying that, because it would be extremely unusual for any country representative or envoy to live in the country which they follow. I would say that Dame Rosalind Marsden is doing a very good job as a special representative and has enormous respect among the Sudanese and, indeed, others in the European Union.

All the EU member states’ missions in Juba attended that workshop, as did representatives from the Government of South Sudan, the UN and the World Bank. This is part of a concerted effort by the EU and by other players to encourage joint programming by member states of the European Union and by other donors who need to co-ordinate, certainly better than has been the case. One thing we know, for instance, is that the education ministry is currently dealing with 17 different bilateral donors, as well as countless NGOs. This takes time and is extremely difficult when you do not have the computers, the staff or the capacity to manage being inundated in this way by requests and pressure from so many donors. That workshop was the first time that partners had come together in this way—in this Room, we would say “And about time too”.

The strategic plan is now to join EU donor teams together, which will assist with efforts to tackle humanitarian needs. Several areas will of course need to be prioritised; as noble Lords have said, there is justice, the rule of law, education and urban development. One area which I think was not mentioned is the rural economy, which has become a major priority for the European Union. The EU will participate in the pledging conference due to be held in Washington DC later this month and play a lead role on the agricultural sector in that meeting.

The noble Lord, Lord Jay, mentioned the NGO report; I, too, certainly recommend Getting it Right from the Start as very interesting reading. It recommends substantial support for small-scale agriculture and pastoral production, which is extremely important in Sudan, and called for targeted support for access to areas of the country where large numbers of returnees are settling, making huge demands on the population living there. The report also calls on the EU and others to provide long-term, predictable funding, as noble Lords have said, for the Government and for NGOs as well, which are of course heavily involved in the current provision of basic services in South Sudan. Another key issue is the need for all systems to promote equitable social and economic development.

Currently, Jonglei gets roughly a third as much per capita as Western Bahr El Gazal, while grappling with a food-insecure population nearly six times as large. These discrepancies need to be tackled. Adjustments to redress inequalities should be encouraged in order to respond to references in the comprehensive peace agreement and the transitional constitution to,

“historical injustices and inequality between different regions of Sudan”.

They called for wealth to be shared without discrimination on any grounds.

A very important EU contribution will be to develop trade opportunities with South Sudan and to continue free access to EU markets under the “Everything But Arms” arrangement with the least developed countries. That is already under way. South Sudan is a litmus test of how donors manage to get development right. However, it is important that we understand the right of the Government to own the whole process. We tend to talk as though donors own the process of managing a Government who may face difficult issues of capacity. Nevertheless, there is a particular tendency to feel this pressure from donors. I have certainly seen this in many years of following international development in fragile states. President Salva Kiir said recently:

“How we spend money as a government, and how our development partners spend money in our countries, is critically important to our success, given the scale of need across our nation”.

Another critical issue that deserves more than lip service is the need to support South Sudan civil society in its efforts to participate in the decisions. I also strongly emphasise the need for much more investment in the South Sudan Parliament. Last week, MPs were here as guests of the CPA. I met two MPs from South Sudan, who told me that they do not have offices, a library or any computers. They have no access at all to information, yet they are supposed to manage these complex and challenging issues. It is critical that this newly elected Parliament is given the means to work efficiently so that it can hold the Government to account, particularly when the Parliament scrutinises budgets, for example.

Currently, the increased flow of funds into the economy in South Sudan, as a result of taking all the oil revenue from the southern oil fields, is not being properly accounted for, as others have remarked on. This could be put down to corruption; we are very quick to do that. However, surely the sheer lack of functioning institutions is a major factor. Anyone who has been to a developing country without such institutions understands that there is corruption but there is also an inability to manage very complex fiscal and budgetary issues.

I believe very strongly that the collective importance of the EU will be critical at this time. As it says in the report, the issue of the ICC arrest warrant resulted in Sudan refusing to ratify the Cotonou partnership agreement in 2010. The legal framework for co-operation with the EU was therefore denied to South Sudan. The agreement is the only legally binding instrument that includes an ICC clause. The EU Council and the ACP council should be commended for their efforts to ensure that South Sudan can access that funding. In July the EU Council agreed to give €190 million of uncommitted funds from the ninth and previous European development funds to meet the needs of the most vulnerable populations in both the north and the south. Additional funds amounting to €200 million have already been allocated in the context of the 2011-13 development plan drawn up by the Government in Juba. A decision has been taken with the ACP. It is very good to see the combined efforts of the council—of Africa, the Caribbean and the Pacific—and the EU to adopt what they are calling a flexible approach, which will allow South Sudan to become a party to the Cotonou agreement and the 10th EDF funds. I know that this was an issue that particularly exercised the committee during the discussions that took place.

South Sudan has lost a lot of time because of the donor-pooled funds by the World Bank. They have lost a lot of time when strategic planning was difficult for them. Of the £800 million allocated at the time of the CPA agreement, only one-third had been spent by July this year. It is terrible that the money has been there and has not been spent. It was mainly because of the over-rigorous and ridiculously stringent conditions imposed on the disbursements of the funding.

I visited Sudan a number of times over many years, and I cannot but help feel and share the joy and anticipation felt by the people who have known decades of such terrible war and suffering. What we know now is that countless thousands have been displaced and the conflicts for decades have caused such misery. The two countries now face seemingly intractable problems, but the opportunities for supporting positive progress towards peace, development and accountable governance are also significant and we should not be so pessimistic as to rule that out. The call now has to be for the two Governments to change their approach and for civil society and Parliaments to hold their Governments to account. I know that the EU is seen as central to those efforts, and to support it, UNMIS and the AU High-Level Implementation Panel. We should support the EU premise that the provision of basic services can help reduce the risk of conflicts driven by competition over resources. Similarly, the EU believes that providing services in areas under pressure from large numbers of returnees will reduce further potential for conflict.

Finally, the new and excellent UN representative, Hilde Johnson, based in Juba, has said:

“If there is one important lesson to learn from the negotiations that ended Africa's longest civil war, it is the need for international engagement—continuous, coordinated and forceful”.

19:37

[Baroness Verma]

My Lords, I thank my noble friend Lord Teverson for tabling today’s debate, and all noble Lords for their valuable contribution to this very important topic. I hope that I will reassure noble Lords through my remarks and responses to questions raised that the Government very much take on board noble Lords’ concerns that progress in Sudan and South Sudan is slow. If I cannot answer questions today, I will write to noble Lords, but I would like to start by paying tribute to the Associate Parliamentary Group for Sudan, some of whose members have participated today. Its continued interest and commitment to the people of both Sudans is crucial and vital, and is rightly welcomed by all those who care about the welfare of the peoples of these two countries. As with the noble Lord, Lord Sewel, if it is repetition on a good point, repetition it will be.

We very much welcomed the report produced in June this year by EU Sub-Committee C, which accurately predicted many of the challenges that would be faced by the two countries after South Sudan’s secession. It made some very sensible recommendations, and made clear what can be achieved by working with our EU partners in Sudan and South Sudan. We very much value the role of the EU in Sudan, and particularly, as the noble Baroness, Lady Kinnock, just said, of EU special representative, Rosalind Marsden. We look forward to continuing to work with them and her.

At this stage, it would be most useful if perhaps I set out the current UK policy towards Sudan and South Sudan. Since the committee’s report was issued in June, we have seen the birth of the world’s newest nation, South Sudan. The independence of South Sudan on 9 July was a great success, passing peacefully and with the consent of both nations. Our own Foreign Secretary was there to represent the UK and made clear our ongoing commitment to both countries.

We continue to make clear that we would like to see two prosperous states peacefully coexisting with each other. We want to see a swift resolution to the many conflicts in Sudan and South Sudan, which are affecting stability in both countries, and we want to see full humanitarian access granted to all conflict areas. We can work closely with our international partners, particularly the EU, in pursuit of these goals.

The UK continues with its extensive development programme, co-ordinated through DfID, in both countries. Humanitarian needs play a big part of our programming, but we also provide significant development assistance to both countries. We should also be clear that no money goes directly to the Governments in Sudan or South Sudan.

In South Sudan, the UK is providing over £90 million a year for the next four years to help the people of South Sudan. This funding will support international efforts to promote peace and stability in South Sudan. Specifically, our assistance will help to build more accountable, inclusive and transparent government; deliver basic services, such as education, clean water and healthcare; support economic growth; provide humanitarian relief; and improve security and access to justice.

In Sudan, we are providing £50 million per year for the next four years. Sudan has undergone massive upheaval this year. As such, we are looking at our programme to make sure it meets the needs of the Sudanese people in these changing times. Whatever happens, our programmes will contribute to the provision of humanitarian aid to those most in need. They will help deliver clean water, sanitation and better education. Our programmes will also aim to deliver better access to justice, particularly for women, and improved governance in Sudan.

On a recent visit in November, the Parliamentary Under-Secretary of State Stephen O’Brien announced additional support for the World Food Programme that will enable it to meet the humanitarian food needs of approximately 315,000 people who have been particularly affected by conflict in Southern Kordofan, Blue Nile and Abyei. This will cost around £4.8 million.

The British Council is increasingly engaged in Sudan. While there in July, Henry Bellingham, Foreign Office Minister for Africa, witnessed the signing of a statement of intent between the British Council and the Sudanese Ministry of Education confirming the commitment of both parties to an English-teacher training programme. It will lead to the development of a cadre of 40 ministry teacher trainers and result in 900 more teachers at basic and secondary school level in Khartoum state receiving professional development training.

However, it is unfortunate that, despite the efforts of the UK and the international community, progress remains slow in many areas and we have seen deterioration in others. The violence in Southern Kordofan and Blue Nile state continues. It is estimated that, in total, 200,000 people have been displaced from Southern Kordofan and 130,000 from Blue Nile state. There is little humanitarian access to either area. We are working closely with our international partners to push for an immediate cessation of hostilities and to encourage the establishment of an agreed process to address the root causes of violence in both states. We urge the Government of Sudan and the Sudan People’s Liberation Movement in the north to allow immediate humanitarian access to the area.

More recently, there have been worrying developments, with the Sudanese Air Force bombing Yida in South Sudan and Quffa in the border area on 10 November, and further violent altercations on 3 December. The Minister for Africa, Henry Bellingham, made a statement in November condemning any action that puts civilian lives at risk and called on both parties to exercise restraint. These latest events make it all the more important that both sides allow a border monitoring mission to deploy quickly.

We also continue to urge both Sudan and South Sudan to find a way to resolve their remaining areas of difference. It is particularly concerning that the parties could not come to an agreement on oil revenue sharing during the talks in Addis Ababa last week. We encourage both parties to make every effort to come to an agreement in the next rounds of talks that will take place throughout December.

We also urge both parties to come to an agreement on citizenship, border demarcation and the status of the disputed region of Abyei. As the Foreign Secretary said in a joint statement yesterday with his Norwegian and US colleagues, it is vital that the two parties return to the table as soon as possible to find equitable solutions. The situation on both security and humanitarian difficulties in Darfur remains an area of grave concern. The UK is actively supporting the development of the UN-AU road map for the peace process in Darfur, which is due to be presented to the UN Security Council in January 2012.

We hope that this will push for the early implementation of the Doha Document for Peace in Darfur; continue with negotiations with those movements not yet signed up to the agreement; include consultations with the people of Darfur; and set out a clear process by which the international community can support the process.

I will now respond to some of the points raised by noble Lords. I know that a number of noble Lords have raised the failure of the two countries to reach an agreement on equitable sharing of oil revenues between the two countries. We welcome the constructive role being played by the AU high-level implementation panel which is mediating between the parties on this question. The troika of the UK, US and Norway is playing an important role by supporting mediation politically and with technical advice. And, of course, we welcome the recent actions by China, raised by noble Lords to support a negotiated solution between the two countries on the question of oil. The EU also has a valuable part to play alongside the troika in supporting the AU’s mediation.

Talks facilitated by the AU, the African Union, in Addis Ababa on 25 to 30 November unfortunately came to no agreement, but constructive proposals were placed on the table. The noble Lord, Lord Chidgey, has noted that this included an offer by South Sudan on the level of compensation it could pay to Sudan for its loss of oil revenue with a headline figure of $4.5 billion. That proposal needs to be looked at in a broader context, including the outstanding debts that are to be offset, but it is a proposal that we hope the Sudanese Government will consider seriously and to which it will respond constructively.

Noble Lords have raised the unwelcome statements by the Sudanese Government that they are intending to withhold payments for South Sudanese oil. Such threats are clearly not helpful in reaching an agreement which is needed for the economic welfare of both countries. My noble friend Lord Selkirk has mentioned the proposal that a new pipeline should be built to take South Sudan’s oil to the sea without crossing Sudan as a longer-term solution. We believe that if such a proposal were viable or affordable for Sudan, it would not take away the need to urgently seek a solution for the near term.

As my right honourable friend the Foreign Secretary said in a joint statement yesterday with his Norwegian and US colleagues it is vital that the two parties should return to the table as soon as possible to find equitable solutions for the economic benefit of both countries.

It is also vital that South Sudan, whose oil reserves are finite, should seek to diversity its economy rapidly, as noble Lords have mentioned today, to ensure longer term growth.

Noble Lords have rightly mentioned the importance of tackling corruption in South Sudan and of ensuring that the new Government have the right measures in place to deal with this. We welcome the renewed emphasis that President Kiir has placed on stamping out corruption in recent public statements. It will be important that this is followed up by implementing the various actions that have been agreed with expert international assistance. Dealing with corruption and improving the management of public finances will be considered at the international engagement conference for South Sudan that is to be held in Washington on 14 and 15 December. My honourable friend the Parliamentary Secretary at DfID, Stephen O’Brien, will be chairing the session on improving transparency and accountability in government. We hope that this will be an opportunity for the Government of South Sudan to announce further specific measures in this area.

Noble Lords have asked about the progress in establishing EU representation in Juba. An EU delegation is in place sharing a compound with a number of other EU member states, as has been mentioned in the course of this debate. The UK too has been increasing its presence with more than 30 staff from the Foreign Office and DfID now in place. We are currently sharing the same compound although we are exploring the option of more permanent accommodation. We recognise that the EU delegation has been understaffed in Sudan so far. I know that the External Action Service has action in hand to remedy that and we look forward to the arrival soon of a senior head of delegation.

My noble friend Lord Chidgey and other noble Lords asked whether South Sudan could benefit from Sudan's original allocation under the European Development Fund, which has not been used due to Sudan's failure to ratify the Cotonou agreement. I can assure him that the EU is drawing on a number of sources, including unspent EDF money, to fund significant development and humanitarian programmes in the medium term. South Sudan will itself need to join the agreement in order to benefit from the EDF in future rounds.

My noble friend was also right to stress the importance of ensuring that aid money is not misappropriated given the difficult environment for delivering aid in South Sudan and the wider problems of corruption that I have already mentioned. The EU has long experience of providing assistance in difficult circumstances and has the procedures and safeguards available to ensure that best practice is followed. But that is not a reason to be complacent. This will be an area in which we will pay close attention in considering how effectively the EU is spending its resources in South Sudan.

I am being handed a paper to say that I must wind up, so I will go through some quick points. The noble Lord, Lord Teverson, and other noble Lords are concerned that the Sudanese armed forces and the Sudanese People's Liberation Army have not yet withdrawn from Abyei despite the presence of the UN interim security force. We are urging of both sides immediate redeployment and the granting of full humanitarian access to the area.

The noble Lord, Lord Teverson, also commented on support to South Sudan. I will undertake to write to the noble Lord about that support. There is a comprehensive plan and that would be helpful rather than skipping over some points now. However, I will say that one of the first actions South Sudan on becoming an independent state was to apply for membership of the Commonwealth, which is a positive sign. To join the Commonwealth you have to undertake all the criteria and it is welcome to all of us to see that it is willing to undertake the core values of democracy, human rights and law. It is a welcome move.

The noble Lord, Lord Jay, asked about DfID. It is piloting a new approach to aid partnerships with fragile countries such as South Sudan which was the focus of discussion at the summit last week it will continue to play a leading role in ensuring that the aid community in South Sudan follows best practice.

It is clear that there is still a long way to go before the people of South Sudan and Sudan can live their lives in a peaceful and prosperous environment. For our part, we will not be afraid to deliver tough messages to both Governments when we need to. We will have to continue to make it clear that both countries must refrain from military action in each other's territories either directly or through support to other armed groups. We will keep urging both countries to negotiate seriously to settle issues outstanding from the comprehensive peace agreement and from the secession of South Sudan.

The UK remains fully committed to helping the people of both countries through humanitarian and development projects. We will continue to provide assistance to respond to the humanitarian needs of conflict-affected populations, to support security and access to justice, to build basic services and encourage more transparent and accountable government in both countries. Through all of this, we will work as closely as closely as possible with our key international partners including the EU. Through a united international effort, perhaps we can begin to make strong progress in Sudan and South Sudan and it is important that we note that since the secession, we have seen some positive developments in both countries. Sudan has also shown some welcome signs of becoming a more constructive voice in regional issues. For example, it is playing a leading role in the Arab League’s recent action against the Syrian regime and its support for the new Government in Libya.

I know that noble Lords will not be satisfied with the responses today because all noble Lords who have taken part today know that we have a very long journey of challenges ahead. I hope that noble Lords will take on board that the Government take this issue incredibly seriously. Where I have failed to respond directly to noble Lords’ questions, I will undertake to write to noble Lords.

However, I hope that when we next have a debate on Sudan we will be able to talk about more progress and better governance in both countries. I thank all noble Lords, particularly my noble friend, for raising this very important topic today.

19:55

[Lord Teverson]

My Lords, my noble friend the Minister should not be quite so downbeat about her contribution. There can be very few debates where she is asked so many questions about so many issues, some of which I had not come across previously. I am sure that, for the areas that have not been completely covered, there will be an opportunity to write to noble Lords.

I conclude by thanking all noble Lords for their contributions. A broad range of issues have been brought up that were not necessarily covered by the report. I thank particularly the noble Lords, Lord Chidgey and Lord Alton, for their insights and their practical experience. I thank also the noble Baroness, Lady Kinnock, for her giving us much of her experience and an in-depth view of the European Union side of this issue—we are a European Union Committee at the end of the day. I am slightly less pessimistic about Europe’s role than some of my noble friends.

We were very pleased indeed to have Dame Rosalind Marsden as a witness. We welcomed her appointment and we hope that she will be part of making sure that the EU’s role is delivered.

I thank the noble Lord, Lord Elton, for sitting through the debate. His brief contribution did not get an answer, but I was pleased to read that the Kenyan Government have made it quite clear recently that if President al-Bashir landed on Kenyan soil, he would be whisked away to the International Criminal Court. The Kenyan ambassador was banished from Khartoum as a result, but that is the right way forward.

I thank lastly the clerk of the Committee, Kathryn Colvin, and our secretary, Bina Sudra. If the Grand Committee would indulge me, I would like to thank also our policy analyst, Oliver Fox, who has provided excellent service to this sub-committee during the number of years that he has worked in that role for us. He has now left to join the External Action Service. Although he is dealing only with Switzerland at the moment, he will hopefully have an opportunity to fix South Sudan in the future as well.

Motion agreed.

Committee adjourned at 7.58 pm.

House of Lords

Wednesday 7th December 2011 Lords Chamber

Wednesday, 7 December 2011.

15:00

Prayers—read by the Lord Bishop of Newcastle.

Corporate Governance

Wednesday 7th December 2011 Lords Chamber

Question

15:06

Asked By

[Lord Lea of Crondall]

To ask Her Majesty’s Government whether they will initiate a review of the structure of corporate governance in large United Kingdom companies, in the light of wider public and social interests in boardroom decisions.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)]

My Lords, the Government are examining the responses to a recent discussion paper on corporate reporting, which includes proposals for clearer reporting of corporate social responsibility issues and on executive remuneration. Professor John Kay is due to publish his recommendations for encouraging more long-term behaviour in equity markets in the summer of 2012. In February this year, the Government welcomed the publication of proposals by the noble Lord, Lord Davies of Abersoch, for increasing the number of women on boards, and that work continues.

[Lord Lea of Crondall]

I thank the Minister for that reply, and I apologise for sounding like a frog—I do not mean one of those Frogs, or a Kraut. Do I get more time for all these interruptions?

I welcome the commitment by the Deputy Prime Minister at the weekend to curb the excesses of top boards of directors, whose pay is spiralling up as everyone else's spirals down. Will the Minister accept that the key option to restore confidence in the workforce and the wider society is—in Mr Clegg's words—to break open the closed shop of board remuneration by adding an employee representative? Secondly, does she agree that this test will be missed not by appointing a hand-picked favourite, which would make the whole exercise cosmetic, but by some mechanism whereby the person—he or she—self-evidently has the confidence of the whole workforce?

[Baroness Wilcox]

Some have said that remuneration committee membership as a whole does not come from a wide enough talent pool, that it stifles innovation and that the closed shop of boards and board committees needs to change. We know that diverse boards that bring a range of experience are more effective. The idea of introducing employee representatives may be one way of encouraging more challenge on pay. As I said, we have three consultations out at the moment, all of which report at various times leading up to the spring, so I hope that we will be able to give the noble Lord answers that he will find favourable at that time.

[Lord Taverne]

My Lords, there is in all quarters deep concern about the inequalities of pay in industry, which have increased dramatically in recent years. The Government could do something practical about that in this House. Will they seriously consider looking again at the schedule and the timetable for the Second Reading of the Bill of the noble Lord, Lord Gavron, which would give us an early opportunity to debate it? Will they also give it a fair wind, so that this Bill, in one form or another, can find early expression in the law and make quite a difference to the present situation?

[Baroness Wilcox]

I am sure that the usual channels will discuss the matter and we will come back to the noble Lord.

[Baroness Howe of Idlicote]

My Lords, given the mention of the Davies report and given a recent report which I read, which showed that women's contribution had increased UK GDP by a considerable percentage, can the Minister give us a clear idea of what steps she and the Government intend to take to speed up the process of implementing the Davies report?

[Baroness Wilcox]

The implementation of the Davies report is going ahead and things are improving, but we want to see what results can be achieved through a voluntary approach, and we are taking a very close interest in how much progress is being made. We want to encourage talent, but we want to avoid tokenism. I think that 89 per cent of the women whom the noble Lord, Lord Davies, spoke to said that they were not in favour of quotas, so we are trying to avoid getting to that stage if we can. There is no one-size-fits-all answer—companies need to be flexible in their operations. I should like to think that the women who are chosen to go on those boards are chosen because they are the right people for the job.

[Lord Monks]

My Lords, does the noble Baroness accept that there are many lessons to be learnt from our neighbours across the North Sea in terms of rebalancing the economy, which is an objective of all of us? It seems to me that the Government have not yet accepted that one component of the success of these economies is that workers and other stakeholders have an influence at board level. What plans do the Government have to move in the direction of our successful North Sea neighbours?

[Baroness Wilcox]

So why do we not let employees have a say on pay? Some have said that remuneration committee membership as a whole—

[Noble Lords]

Oh!

[Baroness Wilcox]

Was that the question?

[Lord Monks]

On boards.

[Baroness Wilcox]

On boards and pay, I shall refer back to my notes because we have three reviews going on at the moment. There are no noes on anything. At the moment we are keen to listen to everybody’s views and to look at progress anywhere else in the world. The UK has a strong corporate governance framework and we are committed to strengthening it further, as we should do. As it happens, this country has a good reputation in the world for running boards, although of course we will have to wait to see what Professor Kay says in his review.

[Lord McFall of Alcluith]

My Lords, does the noble Baroness accept that there will be no long-term future for companies if there is not adequate shareholder engagement? To date, the level of that engagement has been shameful, allowing ownerless corporations to dictate and a managerial class to prevail. Does the Minister not agree that the Government should do something to ensure that we get both short-term and long-term engagement with shareholders, which is crucial for the long-term health of a company?

[Baroness Wilcox]

There is no doubt that shareholder engagement should—and, I hope, will—be improved. After all, it is shareholders who can, as is only right and proper, hold the company’s feet to the fire on the day they are asked to put up the salary of the chairman and the chief executive. They are not doing their job well, particularly the very big shareholders—the big pension funds and so on. I myself have sat on boards and have experienced these big shareholders not turning up at the shareholders’ meeting, instead having another meeting at another time. Usually, small shareholders turn up and make very good suggestions, but then in come the proxy votes—and there are millions of them. We are doing everything we can to see whether we can get shareholders to take the responsibility and the power that they have to put this right.

[Baroness O'Cathain]

My Lords, can the Minister go a little further on shareholders and their involvement with boards? As we all know, the major shareholdings are held by big institutional investors—namely, pension funds—and the problem with that is that they never have taken their responsibility seriously enough. Instead of hammering on about worker representation and women’s representation, they ought to get right down to the bottom of the issue and find out what the responsibilities of these pension funds are.

[Baroness Wilcox]

My noble friend has expressed it extremely well. We would like to think that this will happen voluntarily, but in the mean time the Kay review is examining proposals for tackling potentially damaging short-term economic behaviour in the markets. We will also be looking at the actions of the shareholders and seeing what recommendations are made there.

Immigration

Wednesday 7th December 2011 Lords Chamber

Question

15:14

Asked By

[Lord Roberts of Conwy]

To ask Her Majesty’s Government what steps they are taking to reduce net immigration.

[The Minister of State, Home Office (Lord Henley)]

My Lords, we are committed to reducing net migration to tens of thousands, not hundreds of thousands, by the end of this Parliament. We have already introduced an annual limit on the number of non-EU workers, overhauled the student visa route and increased enforcement activity. Our next steps are to break the link between temporary and permanent migration by restricting settlement rights and to reform family migration.

[Lord Roberts of Conwy]

I am glad to hear that very positive response. With immigration in the last calendar year running at 591,000, and in this year to March at only 9,000 fewer, is it not imperative that we do all that we can to reduce immigration for the sake of everyone already here and relying on our hard-pressed services, and to keep the total population from reaching the projected high of 70 million about 16 years from now?

[Lord Henley]

My Lords, we are trying to reduce the net migration figures—that is, the difference between immigration and emigration. I stress that we believe that immigration enriches the country and we owe a lot to all those who have come and who will come to this country. However, there must be limits, and it must be sustainable. We have seen a smallish drop in net migration, but it is not as small as it should be. That is partly because emigration seems to have gone down very dramatically. There could be a number of reasons for this; I cannot speculate on that. I suspect it is not for the reason that the noble Lord, Lord Tomlinson, is trying to give from a sedentary position. Emigration has probably come down because there is no longer a Labour Government in power and people want to stay in this country.

[Lord Anderson of Swansea]

Will the noble Lord confirm that many of those hard-pressed services, including our health service, are in fact provided by immigrants? Will he also say how robust are the efforts to ensure that marriages apparently properly entered into subsist at the end of the relevant period?

[Lord Henley]

My Lords, the noble Lord, Lord Anderson, is right to point out that we owe a lot to immigrants, particularly in those so-called hard-pressed services. However, there are a great many employed people in this country. As he will remember, a previous Prime Minister, Mr Gordon Brown, made a point of wanting British jobs for British people. Those jobs could be done by people here if they were able to take them up. Regarding the noble Lord’s substantive point about the genuineness of marriage, that is something we want to address and are addressing.

[Baroness Hamwee]

My Lords, the Office for Budget Responsibility has drawn attention to the link between migration and growth. Its July report on fiscal sustainability mentioned that immigrants are more likely to be of working age than the general population. Will the Minister acknowledge the importance of this factor, given our generally ageing, and therefore less economically productive, society?

[Lord Henley]

My noble friend makes a very valuable point about the demographic changes we are facing. People have fewer children, we are an ageing population and we live longer. I welcome and acknowledge what she says. However, there is a limit to the number of people we can get into the country and we want to make sure that the net migration figure is sustainable in the long run.

[Baroness Prashar]

My Lords, does the Minister agree that overseas students are not immigrants and should therefore not be included in the net migration figures?

[Lord Henley]

The noble Baroness makes a very good point. The changes we are making for overseas students are intended to make sure that they can come here to study and can possible stay on, but we do not want them to bring their families where that is not necessary or to stay on as permanent residents afterwards if that is not appropriate.

[Lord Peston]

Will the Minister enlighten us on the economics of all this? A great many of his noble friends in this House and his honourable and right honourable friends in the other place claim to be great supporters of free trade and the free market. Will he explain how that is compatible with denying employers and other institutions the right to buy labour services, wherever they might come from, that can be used profitably? Surely supporting the free market means allowing precisely that, and not limiting immigration?

[Lord Henley]

My Lords, I could, if I had the time—but I do not have the time—give the noble Lord a long lecture on the economics of this.

[Noble Lords]

Oh!

[Lord Henley]

Perhaps the noble Lord and I could have a discussion about this at another time and in another place. The simple fact is that some control has to be brought in because the numbers are unsustainable in the long run. The noble Lord does not agree with me; we will have to remain not agreeing on this subject. However, there are limits to the number of people we can fit into the country.

[Lord Willoughby de Broke]

My Lords, if the aim is to reduce net immigration, will the noble Lord say whether he is going to repatriate the power over immigration from the EU? It would surely help to reduce net immigration if we controlled immigration from the EU.

[Lord Henley]

My Lords, there are no plans to do so.

[Lord Hunt of Kings Heath]

My Lords, on the economics of immigration, is the absurdity of the Government’s position not shown by what has happened in relation to the students whom he mentioned? Already, universities are reporting a downturn in the number of international students coming to this country, causing grave disadvantage to the UK. What does he say to the House when other countries have opened their doors with open arms to such students?

[Lord Henley]

My Lords, I am not going to take lessons from the noble Lord on the absurdity of our position when the party opposite, when in government, did absolutely nothing to control immigration—nothing whatever. It is right to control the numbers and we will continue to try to do so. It is also right to control the number of students, particularly the number of bogus students coming to bogus colleges who should not be coming in at all.

Culture and Arts: Funding

Wednesday 7th December 2011 Lords Chamber

Question

15:21

Asked By

[Baroness Jones of Whitchurch]

To ask Her Majesty’s Government what steps they are taking to minimise the impact on arts and cultural activities of local authority cuts.

[Baroness Rawlings]

My Lords, this Government believe that the arts should look for funding from as many different sources as possible. It is for each local authority to decide how and to whom it distributes its funds. Central government will provide over £800 million to the arts, museums and heritage through grant in aid in this financial year. We are also working with bodies in this area to improve their fundraising capabilities.

[Baroness Jones of Whitchurch]

I thank the Minister for that reply. Given the scale of the cutbacks in local authority funding, is she concerned that councils are disproportionately cutting local arts projects to protect other essential services? Does she recognise the large disparities that are developing in arts activities between one council and another, with some areas in effect becoming cultural deserts? As the noble Baroness knows, some councils are proposing cuts of up to 100 per cent. Is this the time for the Government to consider imposing a statutory duty on councils to fund local arts provision?

[Baroness Rawlings]

My Lords, the noble Baroness, Lady Jones, raised several important points. I will try to answer them all. Her Majesty's Government appreciate that local authorities have had to make difficult decisions on spending. The noble Baroness is absolutely right that it is harder for smaller, regional bodies to cope with the changes. However, we are glad that some enlightened councils have recognised not only the economic contribution that the arts can make to an area but the way they enhance the environment in which we live. Her last point was about imposing a statutory duty, but this would only add to the burdens placed on local government at a time when deregulation is a priority. It is right to give responsibility to local communities and local authorities to take the decisions that are most appropriate to their areas.

[Lord Storey]

My Lords, the Minister will be aware—as the noble Baroness opposite said—that many local authorities have made disproportionate cuts when making savings, including local authorities that are run by her party. Will the Minister assure us that the Government will do all in their power to ensure that young people, particularly those from disadvantaged backgrounds, will be able to access the arts?

[Baroness Rawlings]

My Lords, my noble friend is absolutely right that some local authorities have cut more than others. He is also right that we should encourage the private sector into sponsorship. This is exactly what the coalition Government announced yesterday in the draft clauses of the 2012 Finance Bill. There will be legislative provision for a new cultural gifts scheme.

[The Earl of Clancarty]

My Lords, is the Minister aware of the recent Museums Association report that shows that cuts to local authority funding are already having a direct and drastic effect on many local and regional museums, with cuts to staff, opening hours and events, and the risk of closure. Bolton museums are selling off numerous art works to pay for other services. Will the Minister admit that there is no realistic alternative to proper public funding of local authority museums?

[Baroness Rawlings]

My Lords, the noble Earl makes several important points, and the Museums Association’s cuts survey in June 2011, which he mentioned, showed that many local authorities are still finding it possible to maintain museum services.

[The Lord Bishop of Exeter]

My Lords, I invite the noble Baroness to join me in welcoming the reopening next week, after a £24 million refurbishment, of the Royal Albert Memorial Museum and Art Gallery in Exeter. We in Exeter are enormously proud of this flagship project, because it has been driven by an understanding of the wide contribution of the museum to the city’s quality of life. That includes cultural provision, community cohesion, individual well-being, civic identity, economic attractiveness and destination tourism. Will the Minister affirm the importance of ensuring that this broader impact of culture is embedded in a wide spectrum of cross-cutting policy-making, and will she say what Government can do proactively to secure this at both the national and the local level?

[Baroness Rawlings]

I congratulate the right reverend Prelate on what has been happening in Exeter and the reopening of the museum. I totally agree with him that quality of life will be enhanced by all that. I would like to stress what the Chancellor of the Exchequer announced in his autumn Statement: that the overall annual budget for the acceptance in lieu scheme will now be £30 million, an increase of 50 per cent, which will have an effect in Exeter as well.

[Lord Howarth of Newport]

My Lords, while there is all too little that the DCMS can do directly to assist local authorities faced with the devastation of their finances to carry out their cultural responsibilities, will Ministers at the department do everything in its power to support the Arts Council in its efforts to mitigate the effects of this, and will it also encourage national institutions that the department funds to emulate the excellent example of the British Museum and its programme of partnership with museums across the country?

[Baroness Rawlings]

My Lords, the noble Lord, Lord Howarth, makes an important point. I could not agree with him more in his praise for the British Museum and for its director, Mr Neil MacGregor, for all his excellent work in the area. I can reassure him that each of the national museums that the DCMS sponsors has a specific obligation to work in partnership with regional museums. We will give every support to the Arts Council and to Dame Liz Forgan. The noble Lord is right to be concerned—we are all concerned—and I know she is talking across the board with local authorities and that they are interested in fostering their cultural enterprises.

[Lord Stevenson of Balmacara]

My Lords, when the Minister for Culture, Ed Vaizey, gave oral evidence recently to the Culture Select Committee, he admitted that while the department cannot dictate to local authorities what spending decisions they make, he hoped that the signal from us to support the arts will be taken on board. Can the Minister share with us what signals have actually been sent recently to local authorities, and what the reaction has been?

[Baroness Rawlings]

My Lords, the biggest signal of all, which we just made yesterday, is the philanthropic legislation that is coming through. I am sure the noble Lord will agree that with the acceptance in lieu, lifetime giving and acquisitions, this is one of the biggest supports for all arts bodies. I am very pleased that he asked that.

Economy: Government Policies

Wednesday 7th December 2011 Lords Chamber

Question

15:29

Asked By

[Lord Clinton-Davis]

To ask Her Majesty’s Government what is their response to the report of the Institute for Fiscal Studies on the Chancellor of the Exchequer’s latest economic measures.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, the Government took decisive action at the Autumn Statement to ensure sustainable public finances and to meet the fiscal targets set at Budget 2010.

[Lord Clinton-Davis]

The Institute for Fiscal Studies has referred to higher inflation, unprecedented cuts, the longest wage stagnation in history and plunging incomes. Is it not appropriate in the light of this respected organisation’s report that the Government should change their economic course, to avoid a major shipwreck before it is too late?

[Lord Sassoon]

No, my Lords, that is precisely not the conclusion from the IFS report. What the IFS report also pointed out was that Labour’s plans—the plans of Mr Alistair Darling in his March 2010 Budget—

“would, if [they] had been implemented, now of course have implied even higher debt levels over this parliament than those we will in fact see. That would have left an even bigger job to do in the next parliament”.

There would have been £100 billion of additional debt if we had followed Labour’s plans, and that was under Mr Darling. Mr Ed Balls has so far announced unfunded commitments of £91 billion a year—£326 billion of unfunded expenditure. Mr Ed Balls wishes to pave the road to Rome, if not to Athens.

[Lord Christopher]

My Lords, did not the Conservative Party embrace Labour’s spending plans?

[Lord Sassoon]

My Lords, what my right honourable friend the Chancellor said we would do is to stick precisely to the spending plans that he set out in the March Budget and the subsequent spending review. That is what we will do, and that is what will keep our interest rates low.

[Lord Vinson]

My Lords, as part of their measures to see what can help this poor old country out of its troubles, would the Government look at our huge imbalance of trade—currently running at about £30 billion a year plus? I am not suggesting for one moment that all those jobs could be done in this country, but it is the equivalent of about 1 million jobs that we are shipping overseas. There are some areas of our economy that could be done here. For instance, why do we need to import so much cement, which we can make in this country just as well as importing it from other countries? Could we not look at a sensible policy of import substitution to try to create jobs in this country that are being created unnecessarily in other countries, when we could do the jobs perfectly well ourselves?

[Lord Sassoon]

My Lords, our exporters are leading the growth in this country and indeed, although it is early days, there are some signs from the figures over the past 18 months that at last, after a decade of a declining share of world trade, the UK’s share is increasing. It is a modest increase and it is early days but our exporters are performing very strongly.

[Lord Barnett]

I would like to welcome one part of the Statement from the Chancellor, when he said that he had negotiated £20 billion of funds from pension funds for infrastructure investment. That is very welcome. However, could the noble Lord tell us how exactly it is to be financed with the pension funds? Is it a PFI deal, or what rate of interest are they going to be paid?

[Lord Sassoon]

I am grateful to the noble Lord, Lord Barnett, for welcoming this important initiative. In fact it is a case of the pension funds coming to us. That particular group of pension funds has £800 billion under management. So it will be funds that they already have under management, and they wish to allocate a greater share to the infrastructure sector. It does not hit the public sector in any way.

[Lord Newby]

On that exact point, my Lords, the IFS says that the £20 billion of additional funds from the pension funds looks to be,

“more of an ambition than a done deal”.

It adds that they,

“have little clarity as to what the nature of this potential additional spending might be”.

Is the Minister able to tell us, first, what priorities the Government have assigned to that potential additional expenditure; and secondly, when he hopes the benefits of that additional funding might come through?

[Lord Sassoon]

My Lords, to repeat, the pension funds and also the insurance companies have come to Government and asked for our help. We have signed a memorandum of understanding to help them set up their vehicle as quickly as possible, because clearly they want to find an investment home for their money.

[Lord Davies of Oldham]

My Lords, does the Minister accept that the best deficit reduction strategy is in fact a growing economy? Why are the Government pursuing policies that have already reduced growth, and are destined to do so for several years?

[Lord Sassoon]

I do not accept that at all. Of course we all wish to see a strongly growing economy. The latest forecasts from the OBR are that the private sector will generate 1.7 million jobs over the forecast period. That is strong growth in the private sector.

[Baroness Wheatcroft]

My Lords, while cutting the deficit is essential, it will undoubtedly leave many people facing financial hardship. In the light of that, does the Minister have any comment on the stories this morning about the forecast growth in what is known as payday loans and the interest rates—some might say extortionate interest rates—charged on them?

[Lord Sassoon]

I completely agree with my noble friend that it is very concerning that people on low incomes should be exploited. Therefore, it is important that this issue is fully debated. However, I would also point out that the latest forecast from the IFS shows that real household disposable income will stabilise in 2012 and sharply rise in 2013.

Airports (Amendment) Bill [HL]

Wednesday 7th December 2011 Lords Chamber

First Reading

15:36

A Bill to make provision to amend the Airports Act 1986.

The Bill was introduced by Lord Empey, read a first time and ordered to be printed.

Accession (Immigration and Worker Authorisation) (Amendment) Regulations 2011

Wednesday 7th December 2011 Lords Chamber

Electricity and Gas (Carbon Emissions and Community Energy Saving) (Amendment) Order 2011

Storage of Carbon Dioxide (Inspections etc.) Regulations 2011

Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011

Financial Restrictions (Iran) Order 2011

Local Policing Bodies (Consequential Amendments) Regulations 2011

Open-Ended Investment Companies (Amendment) Regulations 2011

Motions to Refer to Grand Committee

15:36

Moved By

[Lord Strathclyde]

That the draft Orders and Regulations be referred to a Grand Committee.

Motions agreed.

Health and Social Care Bill

Wednesday 7th December 2011 Lords Chamber

Committee (11th Day)

15:37

Relevant documents: 19th report from the Delegated Powers Committee, 18th report from the Constitution Committee.

Moved by

[Earl Howe]

That the House do now again resolve itself into Committee.

Amendment to the Motion

Moved by

[Baroness Thornton]

At end to insert “but that this House regrets the Government’s appeal against the Information Commissioner’s ruling that the Government should release the Transition Risk Register; notes that the Information Commissioner says that disclosure would aid public understanding and debate on crucial aspects of the Bill; and requests that the Secretary of State reconsider his decision to withhold the information in order that this House can have the information in time to be considered during the passage of the Bill.”

[Baroness Thornton]

My Lords, I move the amendment, which is for a Motion of Regret, in my name on the Order Paper. This is the third time that I have asked for the indulgence of the House to bring this important matter before it and I hope that this will be the last. My amendment is not a fatal Motion. It does not intend to stop the progress of the consideration of the Bill, much as the doctors, the BMA and others might desire it. The battles to change the Bill are for later today and in the new year. This is a broader issue.

This amendment will allow the House to express its dismay, should it so wish, that the Government are denying the Committee currently considering the Bill information that may be pertinent to its deliberations. Noble Lords may recall that my right honourable friend John Healey MP and the Evening Standard both submitted freedom of information requests in November 2010 to have the register of risks relevant to the Bill released. They went through the procedures of review and appeal with the Department of Health.

On Friday 2 November, the Information Commissioner ruled that, given the particular circumstances—that is, the passage of primary legislation through Parliament—the register of risks should be released. I raised the matter in the House on 14 and 16 November, asking for the information to be made available. On 28 November, the Minister informed the House that the Department of Health was appealing the decision of the Information Commissioner. He was unable to inform the House of how long the appeal process might take and whether the risk register might ever or eventually be made available to the House in time to be considered during proceedings on the Bill.

The Minister also said that some information might be made available. However, he said:

“I cannot share the detailed breakdown of the information recorded in the risk register, or the wording”.—[Official Report, 28/11/11; col. 16.]

The noble Baroness, Lady Williams, supported the need to make this information available to the House, for which I for one am very grateful. It underlines the fact that this is not a party-political issue and is not for point-scoring. It is about the proper functioning of this Chamber doing the best job it can with all the information available to enable us to do so. The pros and cons of releasing the information have been thoroughly explored by the Information Commissioner in his ruling, including addressing the concern about precedent-setting expressed by the noble Lord, Lord Butler, on 28 November. The Information Commissioner argues with great clarity in his ruling that the particular circumstances of the Bill mean that the information is directly relevant and should be released. He said in his ruling of 2 November that:

“The Commissioner finds that there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service the government’s policies on the modernisation will bring”.

In this ruling the commissioner goes on to say that he,

“considers that disclosure would go somewhat further in helping the public to better understand the risks associated with the modernisation of the NHS than any information that has previously been published”.

This is the information that we have been refused. Today we start day 11 in the Committee on this huge and complex Bill, with its implications for our NHS. We have been considering this Bill for over 60 hours, and by my reckoning we have about another 25 or so to go before we embark on the next stage in the new year. We do so ignorant of this information.

As well as regretting the decision taken by the Government, the amendment asks the Minister to reconsider the decision to appeal the Information Commissioner’s ruling. I appreciate that the decision about this matter may be above the Minister’s pay grade, and I sympathise with his position. It seems to me that a clear expression of the House’s dismay and regret may strengthen the Minister’s hand when he discusses this further in the department.

There are two final matters which I ask the House to consider. The first is that the last Government, under similar circumstances, and indeed after a year of resisting, released the third Heathrow runway risk register to Justine Greening MP. It did not create a rush to request risk registers. Secondly, it has also emerged, as was published in the Evening Standard, that NHS London publishes quarterly on its website a risk register for health services in the capital, including how they could be affected by the Government’s reforms. NHS London’s frankness can only add to the case for publication. I understand that one other NHS region is also considering this course of action. I ask the Minister if he is aware of this, and does it not rather undermine the argument the Government are using to appeal this decision? Indeed, does his department intend to stop NHS London?

I hope the House will regard this as a very serious matter. I hope that noble Lords will consider supporting this Motion of Regret if there is no change in the Government’s position. Like all noble Lords here, I hold the noble Earl, Lord Howe, in great respect and esteem, and I have come to the decision to proceed only after much reflection. It is because this House is a body of revision and scrutiny. It has without doubt a worldwide and distinguished record of scrutiny, which includes, after consideration of evidence and facts, telling Governments that they need to change legislation. This House has a reputation for standing up to Governments when it believes that rights and liberties are in jeopardy, and having access to the information allows us to reach considered decisions. I suggest that we are being denied the ability to do our job. A GP sent me a message this morning:

“Glenys Thornton, how can you debate a Bill without knowing the risks?”.

He is right.

15:45

[Baroness Williams of Crosby]

My Lords, it is important to spend a moment or two explaining the purpose of a risk register. One of the difficulties that has arisen over recent years is that risk registers have been used in the planning of long-term substantial projects by both the last Labour Government and the present coalition Government. When a risk register is produced, the effort is to consider all the contingencies—some of them highly unlikely—which might arise in relation to that project. There will certainly be some information in that category that would enable the discussion of any Bill of sufficient significance passing through Parliament to be treated with better knowledge than might otherwise be the case. It is also true that under the terms of the relevant legislation, particularly under Section 35(1)(a), there is an exemption category which allows those registers that directly affect policy formulation to claim an exemption from the output and effect of information legislation.

What we now know happened in this case is that when the Information Commissioner considered the point put to him by the original seeker after information, he had to weigh up on the one side the exemption argument and on the other side the argument of the public interest. He himself indicated in his original findings in early November this year that it was a very narrow balance, but that he believed, as the noble Baroness has said, that the issue was sufficiently in the public interest for him to overrule the exemption. There is a legislative right to appeal, of course, and that right to appeal was taken up by the Department of Health on the grounds that this is to do with policy formulation and therefore falls within the exemption. It asked the commissioner to overrule the application. The commissioner decided to uphold the application on the balance of considerations both ways, and the Department of Health then decided to use its right to appeal and it is that appeal which is now about to come before the tribunal. My understanding is that both sides in this argument, the complainant and the defendant, have asked for more time in order to prepare their cases. Only after that will the tribunal be able to make a ruling.

Along with the noble Baroness, I am of the view that it would be helpful to the Report stage of this Bill to have as much information as can possibly be made available. However, the proper way to do that is to allow the tribunal to reach a judgment. My understanding is that if both parties to the tribunal were to request a decision to be made as quickly as possible after the cases have been prepared, the tribunal might be agreeable to a rapid decision. That is very important because nothing can happen before such a decision and it would be unfortunate for the House if the result was not known well before the Bill reaches Report.

I ask the Minister whether he could consider such a joint approach to the tribunal, recognising fully that the two sides must be able to prepare their cases, to see whether it could not act much more quickly than is its usual practice in order to allow the House to have the information if, indeed, the tribunal decides not to uphold the appeal. If it does uphold the appeal, it will then of course be a different case and there will not be any further argument about it. I put that to the Minister because I believe it is very important to settle this issue quickly. I fear that it may hang like a dark shadow over the whole of the Report stage. It must be decided one way or another either before or very soon after the Report stage begins when the House resumes in the new year.

[Lord Pannick]

My Lords, I understand the wish of the Government to appeal against the decision of the commissioner because of the general issues of importance raised under the freedom of information legislation, but the issue raised today by the amendment does not depend on the proper answer to the question that was before the commissioner and which will be before the tribunal. That is because the issue before the commissioner and the tribunal was the proper balance of interests—a very difficult balance of interests, as the noble Baroness, Lady Williams, has said—between the public interest in having this information and the very real need to ensure that risk registers in general are not disclosed. But the issue before the House is different. It is the issue of whether the Members of this House should be given information that the commissioner in his judgment, having seen that information, has said will be of considerable importance in enabling the Members of this House to perform our scrutiny function in relation to this vital Bill.

I cannot share the opinion of the noble Baroness, Lady Williams, that this is the same issue as will be before the commissioner. It is a matter for the judgment of this House how best we perform our scrutiny function. Whatever the balance may be, in general, between the public interest in disclosure and the very real interest in not disclosing confidential information that is on a risk register, the balance is surely very different in principle when we have before the House a Bill that we are scrutinising and considering. It would, I think, require an overwhelmingly strong argument to justify non-disclosure to this House of information that is relevant to our scrutiny function. I therefore hope that the Minister will be able to say today that he is prepared to disclose to this House at least the substance of the information that is contained in the risk register, so that we may fully perform our scrutiny function in relation to this vital Bill.

[Lord Clement-Jones]

My Lords, I am very interested in the argument of the noble Lord, Lord Pannick. He seemed to be setting a rather different standard, well above that imposed by the Freedom of Information Act 2000. I have no doubt that the Minister will deal with that argument when he comes to it. However, I believe that the question for the House today is whether we support the Department of Health’s right to appeal against the Information Commissioner’s decision. This has been a much more finely balanced decision than I believe the noble Baroness, Lady Thornton, is prepared to credit, which I find somewhat surprising given her recent role in government. In this kind of situation, with a qualified exemption under the Freedom of Information Act, it is all about whether the balance of public interest is served by disclosure or non-disclosure. The arguments put forward to the commissioner were in relation to two essential aspects. First, there is the “safe space” argument: the importance of government having the freedom to debate policy and make decisions,

“without being hindered by external comment”.

Secondly, there is the “chilling effect” that disclosing information relating to a particular policy, while that policy is still being formulated or developed, could have on,

“the frankness and candour with which relevant parties make future contributions to that particular policy debate”.

These are perfectly respectable arguments and that is why the commissioner found that the factors are finely balanced, as my noble friend Lady Williams said. In the light of the particularly strongly held views of the department—and I believe that these are genuinely held—it seems that it is entirely valid for the department to appeal to the First-tier Tribunal.

However, I agree very strongly with my noble friend that time is of the essence in this case. There is little point on a decision on appeal not being made until March or April; because, as my noble friend has pointed out, the Bill will probably have passed through this House entirely by then. To mitigate the possibility of that kind of delay, my noble friend’s suggestion is entirely right and sensible. The Department of Health and the complainants should apply to the First-tier Tribunal for an expedited hearing. This is well within the tribunal’s case-management powers under paragraph 5 of the procedural rules, which were last set out in 2009. Of course, this is a discretionary power, but I believe that any tribunal would recognise the need to resolve these matters quickly, particularly in the light of the debates we have had in this House. I believe it would be extremely helpful in the circumstances if the Minister indicated the department’s willingness to proceed along these lines. I hope that my noble friend can give a positive response today, even if further time is needed to prepare the case on both sides.

[Lord Turnbull]

My Lords, I was not involved in the earlier exchanges in this House on this issue. Coming to it new, my view is that first, there is a very important issue of public policy here; and secondly, the FOI process, still less the procedural devices in the course of this Bill, is not an effective way of resolving the issue.

The issue is this: in what way should public authorities report on risk ex ante and account for their management of it ex post? A ruling on a request for a specific document from a specific department is, in my view, incapable of addressing that issue adequately.

Let me declare an interest: I am a director of Prudential plc. This, in the jargon, is a SIFI—a significant financial institution—and, as such, it is now required to have a separate risk committee. In the rest of the plc world, risk is still dealt with as the work of the audit committee. I am a member of that risk committee. Looking at its experience, one can identify three categories of material. First, there is a definition in the annual report of the risk universe and the organisation’s risk appetite: capital risk, liquidity risk, credit risk, operational risk, and so on. In addition there is a definition of the organisation’s appetite for risk.

Secondly, the annual report has material on how risk is managed—the so-called three lines of defence: front-line managers, the risk function at the centre, and internal audit. There is then a third category of information. It might be about the risk of falling below a particular level of capital, or the danger of not finding enough liquidity at a crucial time, or the danger that the key supplier might fail or that IT systems might be interrupted. There are also watch lists: what banks or counterparties does one not want to increase one’s exposure to? This is often set out in the diagrams with which many Members of this House will be familiar, in red, amber and green, showing impact, likelihood, a combined score and then the mitigants.

Very little of this category of information is disclosed, for a very good reason. Discussing it can risk making it more difficult to manage the case in question and in some circumstances might crystallise the very event one is trying to avoid. The same should apply to public bodies. Mention has been made of the chilling effect—that is, officials being reluctant to give candid advice more or less in real time. There is also something that has not really been covered by the Act, which I call the “crystallisation effect”. Managers might be reluctant to be frank in public about operational difficulties if that would undermine their ability to make contingency plans or could trigger an event before their plans are ready.

In my view this is the wrong way to resolve this issue. Where the line should be drawn, what is reported and what is withheld should not be decided on a case-by-case basis. The Information Commissioner—indeed, the whole of the FOI Act, in my opinion—is afflicted by the fallacy of composition. Because something is desirable in case A, it will also be desirable in all cases, if all cases alike are treated in the same way. However, if I stand up to get a better view of a football match, I will improve my view; if we all stand up, none of us will. The fact that one cannot take cases in isolation is perfectly illustrated in this case. The Information Commissioner issued a decision on 2 December on a request from the risk register on the NHS reform programme. Yet only the day before, he issued a decision on a different request, I think from a different complainant, on the strategic risk register. It is fanciful to think that those things could be decided independently or that they could be isolated from what happens in the rest of the public sector.

How, therefore, should this issue be dealt with? Not, as I say, by requiring the release of a particular document originally written for a different audience. It would be better if the Information Commissioner had recommended that the Government should set in hand work involving the man known as HOTGAS—the head of the Government accountancy services—and the NAO, to create a framework of best practice on what should be provided in departmental reports, and what operationally should be withheld. It is normally the case that public accounting standards in the private sector have developed over time and the public sectors usually follow with a lag. The reporting of risk and of risk management is in my view the next area for improvement in the public sector accounts, and the role of the CAG should then be to police whether those principles are being followed. In the case of this Bill, I hope that the Minister can be as forthcoming as possible on what the risks are without creating any of the perils that I have indicated.

The Information Commissioner has made a decision so it goes to the tribunal, and the Government’s case would be greatly improved if they were able to indicate that they supported the kind of initiative that I have suggested. Meanwhile, I hope that the noble Baroness, in the light of any assurances and further information from the Minister, will not press her amendment, but if she does I hope that the House will support the Government, on the understanding that the reporting of risk is the next issue to be advanced across public bodies as a whole.

16:01

[Baroness Scotland of Asthal]

My Lords, I think we need to be clear that my noble friend Lady Thornton’s Motion is simply for this House to express its regret. It is not a fatal Motion but an opportunity to express a view.

I have to say, and this is rare, that I disagree with the noble Baroness, Lady Williams; indeed, this may be one of the first times I have done so when not sitting where the noble Earl, Lord Howe, now sits. The whole purpose of the Information Commissioner is that he is charged with looking at the most delicate and difficult issues and seeking to come to a balanced view on whether the public interest points in one direction or another. It is clear that both parties have an opportunity to appeal if they disagree with him, but I hope that Members of this House, if they have had an opportunity to read the commissioner’s decision, will have found it sound, well argued and balanced. So we have a well argued, balanced view from the Information Commissioner that he believes, having had the advantage of looking at the documents, that the risk register would enable this House to better scrutinise the Bill to the effect of helping us to make a better Bill for the people of our country.

I agree with those who say that this opportunity has to be sparingly used, and it is clear that the commissioner agrees. This will not open the floodgates, which it sounded as if the noble Lord, Lord Turnbull, was suggesting would happen if we agreed to this Motion of Regret. It is clear that the National Health Service is dearer to the people of our country than almost any other institution, so this touches every single citizen. Be they a baby or a person in their third age, it is of equal importance. If we compare it to the importance of the third runway at Heathrow, I hope that the House will think the NHS is a tad more important. Notwithstanding the difference in importance and, as my noble friend Lady Thornton made clear, the great reluctance from my own Government—it took over a year—we gave way, because it was right and proper to do so and there appeared to be an overwhelming public interest. If there was an overwhelming public interest in that case, how much more is there an overwhelming interest in this?

I suggest to the House that the noble Lord, Lord Pannick, is right that this goes to our power and ability to properly scrutinise the Bill. I therefore invite your Lordships to join my noble friend in gently saying to the much beloved noble Earl, Lord Howe, that this is may be a moment when he has to take a message back to his department and say, “Can this not be released?”. If it is as cogent, sound and well placed as the Government believe it is, surely that will only persuade those of us who have anxieties and assist in our scrutiny.

[Lord Warner]

My Lords, I hesitate to intervene but it is a Motion of Regret, and one element of the regret the House would express would be regret for the position the noble Earl has been put in. Much of our debate so far on this Bill has been on the basis of how it would work in practice and how things would happen on the ground. I suspect there is a lot of information about how things would work in practice in the risk register. My concern is that the noble Earl is being put in a very difficult position and at risk of misleading the House—I am not saying he has; I am not saying he has not—as he has been put in a position where, because he is unable to use that information, he may be forced to hedge his bets to reassure the House on some of the practical issues. I hope that is not the case and he has not been put in that position, but we need to be sure and I hope he can give us some reassurances.

[Lord Mackay of Clashfern]

My Lords, the decision of the commissioner is certainly well argued, but under the existing system it is subject to appeal to the tribunal and the Department of Health intends to exercise the right to appeal. In that situation, in my submission, the Minister is entitled to give this House the best information he has. There is no question of failure to release this report in any way leading to the noble Earl, Lord Howe, misleading this House. I do not believe that is at all likely.

The noble Lord, Lord Pannick, developed a cogent argument, but the question he raises in relation to what is to happen here today is a different question from that which arises on the appeal. Unfortunately, although it is a different question, it is very closely related because, if the document is to be released now, the question of an appeal to the tribunal is evacuated because the document will already have become public, which is the issue in the appeal. Therefore, I believe that my noble friend Lady Williams of Crosby has suggested the best way out of this business: the Government and the other parties to the appeal should do what they can to have the appeal expedited. I do not believe that the tribunal is in any worse position than a court of law in getting on with the job quickly and that is the best course because if the tribunal endorsed the commissioner’s decision then that solves the matter.

[Lord Pannick]

Would the noble and learned Lord agree that if the tribunal dismisses the appeal it would then be open to the Government to take the matter to the Court of Appeal?

[Lord Mackay of Clashfern]

Certainly. The Court of Appeal has a very great record in dealing with matters quickly.

[Noble Lords]

There will be delay.

[Lord Mackay of Clashfern]

Delay is something that the courts can control. That is one of the functions they have to try to do expeditiously when an expeditious judgment is required. I believe the solution proposed by my noble friend is the best one: namely, that an expedited decision should be sought from the tribunal.

[Lord Richard]

I want to ask the noble and learned Lord a question. If there is an expedited appeal and it is going to run its course, does the noble and learned Lord think we should continue with this Committee stage or wait until we see the result of the appeal?

[Lord Mackay of Clashfern]

I assume that if the decision was available in time for the Report stage, the House would have ample opportunity to consider its relevance to the matters in issue in the Bill.

[Lord Richard]

What would happen if it were not available at the beginning of Report stage?

[Lord Mackay of Clashfern]

I hope that it would be possible for the decision to be available at the beginning of Report stage.

[Lord Martin of Springburn]

My Lords, I have listened carefully to what all noble Lords have said. I was interested in what the noble Lord, Lord Pannick, had to say. He often advises me on legal matters, so perhaps he can advise me further. If the information comes to us as an open House, it will be public information. Therefore, to say that it comes before noble Lords means that it becomes available to everyone.

[Noble Lords]

Yes.

[Lord Martin of Springburn]

That is fine. I am learning every moment. The amendment states that,

“this House regrets the Government’s appeal against the Information Commissioner’s ruling”.

It makes no criticism of the Minister; there is nothing personal here. I am a trade unionist but I was formerly a full-time trade union official and also a lay magistrate for a very short time. My training taught me not to worry about the decisions that I made, whether they were judicial or semi-judicial, as there was an appeals procedure. The Government are exercising an appeals procedure. We go down a dangerous road if we criticise anyone—whether it be the Government or a private individual—for exercising an appeals procedure. An appeals procedure is a good, safe mechanism for everyone concerned. The wording of the amendment worries me because an appeals procedure is there to be used. The only thing I ask of the Minister is to say that it is being used as a mechanism for achieving clarity with regard to the Information Commissioner’s decision rather than as a stalling mechanism to prevent the Opposition getting the information. If the appeals procedure were being used as a stalling mechanism, I would feel aggrieved as that would be the wrong thing to do.

I do not think that anyone can brag about the Heathrow decision. It took a year to release the information so there is nothing to brag about. The Government have greatly encouraged the appealing of information commissioners’ decisions on other occasions and there were many occasions when the previous Government did not want to abide by an information commissioner’s decision. I do not know much about the risk reports that are being discussed but I understand that they constitute officials’ information given privately to the Minister concerned. If I am wrong, noble Lords will correct me. I was never a Minister but former Cabinet Ministers are present and the noble Baroness who moved the amendment is a former Minister. I would be deeply concerned if officials were unable to give information or advice in writing in the privacy of a Minister’s office in case it was deemed to constitute data which had to be produced in the public domain. If that were the case, officials would not provide that information. I worry about that.

I know how important the National Health Service is. Like many others in this House, I was brought up in a household where I was taught to appreciate the National Health Service. However, this has implications for advice given by officials to Ministers. As I say, I am worried about the implications for that advice.

The amendment uses the word “regrets”. It is a serious matter to me to express regret and to put it in terms of a Motion before the House. Let us not kid ourselves about the Information Commissioner doing a nice balancing act, looking at both sides and weighing up the public interest and the Government’s interest. All too often, the Information Commissioner has said that it is in the legislation and therefore it is going into the public domain no matter what the consequences are. If there had been a wee bit more work put into the legislation years ago, we might not be standing here today concerning ourselves with an Information Commissioner’s decision.

16:15

[Lord Campbell-Savours]

My Lords, a number of Members of the House have suggested alternative ways forward. The best suggestion came from my noble friend Lord Richard. He made the perfectly reasonable suggestion that the Report stage be deferred until we get a ruling on the appeal. I am a mere mortal Back-Bencher, making the offer on behalf of colleagues, but I would imagine that my own Front Bench would support that proposition. Why do we not simply defer it? It is a perfectly reasonable suggestion. The Government will get their way and we will get our way in the sense that we will then be informed when we get to the Report stage of the Bill.

In reality, what is happening today is that the Government are simply using an appeal procedure to delay, knowing this will ensure that certain issues, which should be freely discussed on the Floor of the House during the course of consideration of the Bill, are not going to be discussed. It may be worth noting the comments of Justine Greening when she experienced similar problems under, regrettably, the previous Labour Government. These are her words:

“The DfT’s refusal to release the register until ordered by the Commissioner”—

which we subsequently did, of course—

“shows that Ministers have truly lost all integrity on being open with the public they are there to serve”.

If that was the attitude taken by the noble Earl’s colleagues at that time, why should it not be our attitude today? Perhaps in the light of Justine Greening’s comments at that time, he may wish to reconsider his own position on these matters.

[Lord Richard]

My Lords, I am very grateful to my noble friend Lord Campbell-Savours for supporting my earlier remarks. Perhaps I may expand on them briefly. This is a very strange situation. It is not one that I have ever come across quite in this way before. There is evidence which is, at least prima facie, relevant. Everyone seems to agree that it is relevant to consideration of the Bill. Indeed, as far as the Information Commissioner is concerned, it is not only relevant but disclosable. That is a fairly strong basis on which to start our consideration of what we do about the Bill. If there is a chunk of evidence which is relevant to the Bill, and if that evidence is prima facie disclosable, it is somewhat wrong for the Government to crack ahead with the whole thing while the issue of disclosure of that piece of evidence remains up in the air. If one could expedite the appeals—I am bound to say, as a former practising barrister, that it does not always happen that appeals are expedited in the way one hopes—and therefore get the appeals procedure out of the way before Report stage starts, that would be a sensible way of proceeding.

On the other hand, if you do not get the appeals procedure out of the way, you have to look at the other side of the balance, which is that if the appeals procedure is not out of the way and this issue remains live, the Report stage should not start until after the appeals have been determined and after there has been a firm judicial decision, one way or the other, as to whether or not the Information Commissioner’s opinion on disclosure of this evidence is right. It is a strange position, but the evidence is clearly relevant and, according to the Information Commissioner, prima facie, disclosable. There are also precedents that this type of information should be disclosed. Therefore, it seems to me that it would be wrong just to crack ahead with the Bill as if this issue did not exist.

[Baroness Finlay of Llandaff]

My Lords, I hesitated over whether to intervene, but I feel that I should comment as a clinician. There is enormous concern out there in the clinical services, particularly over transition as the changes come through. There are all types of risk registers and many of them deal with financial and livelihood matters, but the problem is that this issue relates not to livelihoods but lives. People are really concerned that they will not be able to treat critically ill patients in the way that they know, and in the way that the evidence informs them, if we do not get the transitional arrangements correct. That is why there is so much strength of feeling behind the need for access and the need to know where the major risks that have been identified are. Assurance needs to be given through this House to the public at large that action has been taken to deal with the major risks that may be exposed in the risk register.

This is a Motion of Regret. It is nothing more than that. It does not alter the course of the law, and many suggestions have already been made to the noble Earl. I should emphasise that this debate in no way undermines the confidence of either this House or the profession outside in the integrity of the noble Earl, Lord Howe. That is completely intact and not under question. The anxiety relates to what is not being disclosed and what is not being dealt with and, therefore, who is actually being put at risk.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, as the House will recall, I have made clear on earlier occasions why the Government do not believe that it is appropriate to reveal the details of my department’s risk registers. This decision was made not solely in consideration of the current Bill but in the wider context of government. It is important for me to emphasise that.

However, in addressing the noble Baroness’s Motion, it may be helpful to put the issues that she has raised into the broader context of the Freedom of Information Act. The overriding aim of the Act is to maintain a balance between openness and confidentiality in the interests of good government. Openness is an intrinsic part of good government and is a principle that I and my fellow Ministers firmly believe is important. At the same time, it is equally important to acknowledge the need for a safe space when formulating policy and the associated risks. Those noble Lords who took part in the debates on the FOI Bill will recall the clear position taken by Ministers of the day about where that balance should be struck in relation to the workings of government. It was made clear that the Act was not intended to change the way that the Government conduct their business by requiring all their deliberations to be made in public. Some element of confidentiality must remain for the proper and effective conduct of that business.

Ministers and civil servants need the space to be able to consider the worst risks—even to broach quite unlikely risks—and to do so openly and frankly, without the threat of disclosure. Without this safe space for open and frank risk assessment, the registers would be in serious danger of becoming anodyne documents and their purpose would thereby be significantly diluted. That is why information relating to the formulation or development of government policy is explicitly exempt from disclosure under the Act. There is also an explicit exemption for information that would inhibit, or be likely to inhibit, the free and frank exchange of views for the purposes of deliberation.

It is my department’s very clear view, and the view of other government departments, that departmental risk registers of this type and nature should be treated as being exempt from disclosure. That was also the view taken on several occasions by health Ministers in the previous Government. I say to the noble Lords, Lord Pannick and Lord Martin—I was grateful to the noble Lord, Lord Martin, for his remarks—that the Government have no wish to be discourteous or obstructive to this House. Quite the opposite.

We are absolutely not using the right of appeal as a delaying mechanism. The department has published and discussed its proposals for reform at every stage of the process; we have debated them at length in both Houses; it has released some detail about the associated risks and what it is doing to address them in its impact assessments. In response to the noble Baroness, I myself have provided the broad issues covered by the risk register in my Statement of 28 November. Incidentally, that Statement was meant to be complete. I assure the House that in taking forward the Bill, no further risks are identified on the register that would fall outside the list of broad issues that I provided. I am therefore satisfied that I have not misled the House as a result of the Government's decision to appeal.

I am very grateful to my noble friend Lady Williams for her suggestion that the case should be expedited. I am as keen as anyone to see the matter speedily resolved. As my noble friend knows, she and I discussed this yesterday privately and I have since pursued the matter actively with my officials. I should say, however, to place my noble friend's suggestion in context, that since we met, the solicitor acting for the Information Commissioner has requested an extension of time to file the commissioner’s response to our appeal notice and has indicated that the appeal raises issues of considerable importance that will require the tribunal's normal target time for listing an appeal hearing in order for the case to be properly prepared.

I should also make clear a further point. For our part, as the House knows, we take the view that this case raises an important matter of principle for the Government as a whole. We took the decision that we have taken after very careful thought and discussion. Now, the burden is on us as appellants to provide accurate and pertinent evidence to the court to support our case. In preparing that case, we need to consider and consult across various parts of government, as indeed we consulted about our decision to appeal. It is obviously important that we have the necessary time to prepare and carry out those consultations. We have not asked for more time, but I suggest that we need enough time.

I completely understand and sympathise with the desire of my noble friends to see the matter resolved, and I undertake to use my best endeavours to pursue the suggestion so helpfully made by my noble friends Lady Williams and Lord Clement-Jones. The decision to appeal the Information Commissioner's ruling has not been taken lightly, but we have taken it because we believe that the commissioner has not given sufficient weight—

[Baroness Thornton]

Can the Minister give us some times here? How long is it going to take? When does he expect to have the tribunal sit? He keeps saying that it will take time to prepare and to do this, but I think that we need to know how long that will be.

[Earl Howe]

Having anticipated that question before this debate, I made a point of asking but I am afraid that I do not have a definite answer to give the noble Baroness at this stage. As soon as I am able, I would be delighted to do so.

Our appeal is based on the belief that the commissioner has not given sufficient weight in his judgment to the considerations embodied in the relevant provisions of the relevant FOI Act. As the noble Lord, Lord Butler, made clear on 28 November, the ruling has serious implications across government in the precedent it sets for all risk registers.

[Lord Campbell-Savours]

The noble Earl said that he could not give us an idea of the timetable, but he does have something under his control: he has control of the timing of Report. He could say, “We will defer Report stage until the appeal result”. Why does he not just do that?

[Earl Howe]

The noble Lord knows that that is a matter for the House and the usual channels and not for me. However, I have no doubt that his suggestion will be registered in the appropriate places and will be considered. He must understand that it is not solely in my gift to order the business of this House.

I am of course acutely aware of the concerns of noble Lords on this issue. However, I would just ask those noble Lords who may at first blush be inclined to side with the noble Baroness in her amendment to recognise that there is room for an honestly held difference of view on this matter, that the principle involved is very important for the workings of government and that the Government have acted both properly and reasonably in asking the Information Tribunal to reconsider the merits of the case.

[Baroness Thornton]

My Lords, I thank noble Lords for this very illuminating and important debate, and I feel the weight of that importance. I think that the Minister would admit that over the past four weeks we have been very measured in our approach to this issue. We have not rushed at it; we have not sought to delay the Bill; and we have been very measured and patient in trying to work out the best way forward.

I thank the noble Lord, Lord Pannick, my noble and learned friend Lady Scotland and my noble friend Lord Richard and others for their support on this. I also thank my noble friend Lord Richard for crystallising the point that we should not proceed to the next stage of the Bill until we have the results of the appeal, and perhaps that would concentrate minds. In that context, I think that my amendment, which is a regret Motion, will help.

The noble Lord, Lord Clement-Jones, spoke about a chilling effect. I found the remarks of the representative of our former Permanent Secretaries in the House, the noble Lord, Lord Turnbull, interesting but possibly not to the point. The Freedom of Information Act may need reforming but that is not the point of my regret Motion. Particularly in response to the noble Lords, Lord Clement-Jones and Lord Turnbull, I should like to quote to the Committee from “Yes Minister”. This is from episode one of the first series and is about open government. Bernard, who noble Lords will all remember is the Private Secretary, says:

“But surely the citizens of a democracy have a right to know”.

Sir Humphrey—or maybe we should call him “Sir Andrew”—says:

“No. They have a right to be ignorant. Knowledge only means complicity in guilt; ignorance has a certain dignity”,

although it is not dignity that I would particularly welcome.

I confess that I am disappointed by my colleagues on the Liberal Democrat Benches. I was here with them in the Chamber fighting for the Freedom of Information Act all those years ago, and I know that they would have liked my Government to have gone even further than we did. Therefore, it is a matter of regret and disappointment that they are not joining with us in saying that the commissioner’s ruling is a good and measured ruling, that it takes account of all those issues and that this information should be made available to the public and, indeed, to the House.

Finally, the question is very simple. It is not about the appeals tribunal, and the noble Lord, Lord Pannick, was right. It is about how this House amends legislation to make it good legislation, and it is an amendment to regret the fact that we are not being given the information that we need to help us in that job. It is a very mild rebuke—it is an amendment expressing regret. It is a regret that we cannot do that job because we need this information. My view on that has not changed as a result of this debate. I feel enlightened by this debate to a certain extent and think that we may see a way forward. However, we need to regret the fact that we do not have this risk register, and I wish to test the opinion of the Committee.

16:35

Division 1

Ayes: 195

---

Labour: 155
Crossbench: 29
Bishops: 2
Independent: 2
Ulster Unionist Party: 1
Liberal Democrat: 1
Plaid Cymru: 1

Noes: 248

---

Conservative: 145
Liberal Democrat: 61
Crossbench: 33
Ulster Unionist Party: 1
Bishops: 1
Independent: 1

Motion agreed.

16:48

Clause 49 : Secretary of State's duty to keep health service functions under review

Amendment 240

Moved by

[Lord Warner]

240: Clause 49, page 83, line 3, after “review” insert “the cost and”

[Lord Warner]

My Lords, in moving Amendment 240, I shall also speak to Amendment 242 in this group in my name and that of the noble Lord, Lord Patel.

Amendment 240 inserts the words “cost and” before “effectiveness” regarding the exercise of functions by various bodies that the Secretary of State must keep under review. The NHS faces an unprecedentedly long period of having to survive on short financial rations. This is now likely to extend at least two years after the 2015 election, if we are to believe the Chancellor’s utterances last week on the public finances and deficit reduction. The NHS has never delivered in any one year of its history the productivity and cost-saving requirements set by the £20 billion Nicholson challenge, which is to be produced at least four years on the trot. Most informed commentators expect a financial crisis of some kind in the NHS in the next few years, so the reality is that the Health Secretary will have to keep under close review the expenditure and costs of all the bodies listed in Clause 49. The Government should face up to this reality, in my view, as the Chancellor seems to want us to, by adding the words in Amendment 240 to the Bill.

Amendment 242 is another part of that reality checking of the NHS in the Bill. On earlier amendments I raised my concern about keeping in check the overheads and management costs of the national Commissioning Board and clinical commissioning groups, and was duly told that these were not necessary. I acknowledged then that my amendments were probably not framed as they should be. However, I am returning to this issue with Amendment 242, which requires the Secretary of State to report annually to Parliament the administrative costs of the bodies listed in Clause 49, together with the percentage of the NHS budget they represent and their percentage increase over the previous year. If the Secretary of State is doing his or her job properly, they should have this information available to them and be monitoring it closely, especially in the financial climate the NHS faces over the coming years.

We know from history how, left to their own devices, bureaucracies can expand their remits and resource consumption. Ministers never like to own up to this happening on their watch. To improve the prospects of keeping Ministers and, if I may put it this way, these big NHS beasts on the financial straight and narrow, it would be extremely helpful if the Bill required the reporting of administrative costs and their movement over time to Parliament once a year. I hope the Minister can be constructive about accepting such an amendment as it in no way challenges the Government’s reforms. I beg to move.

[Baroness Cumberlege]

My Lords, I have two amendments in this grouping and, lest I be drummed out of the Brownies, I would like to explain that there is a typo in the Marshalled List. It should read not “detailed merits” but “detailed remits”. As noble Lords will appreciate, there is a great difference, and I do not need any persuasion as to the merits of this Bill.

The purpose of my two amendments is to be probing; I am really just seeking clarification. The Future Forum was very widely welcomed by most people, but it further complicated the new proposals in the Bill regarding how we are to organise and manage the NHS. After years of being dictated to and micromanaged, there is a real risk of paralysis, and this at a time when commissioners need to reach decisions and be truly radical.

As I understand the proposed structure, the national Commissioning Board and clinical commissioning groups will be supported by clinical networks, clinical senates, commissioning support organisations and health and well-being boards, which will work in partnership with them. In addition, we have a new public health system, which we debated last Monday, with the creation of Public Health England and the establishment of HealthWatch England and Local HealthWatch to try to improve patient and public involvement. This has the potential to cause confusion and duplication if the Government are not clear about the accountabilities, roles and responsibilities of these different organisations. I would like to take a very serious example: it is still unclear who will take the lead on the commissioning of specialist doctors and nurses responsible for safeguarding children within the NHS.

At a national level, the movement from a single department of state to a more dispersed range of organisations, including the national Commissioning Board, Public Health England, HealthWatch England, Monitor and the Care Quality Commission, could have a similar effect. The danger is that the NHS could find itself in paralysis at just the moment that it needs to make key decisions that are crucial for the sustainability of parts of the service. In particular, some of the important decisions on potential service reconfigurations are urgent if the NHS is to meet the Nicholson challenge and at the same time fulfil its commitment to high quality and safe services to patients.

It is still unclear to me, and I know that it is to some others, how the respective responsibilities and accountabilities of commissioners, providers and regulators for quality are intended to work together. We also need to ensure that additional complexity does not result in an increased administrative burden or financial cost, as the noble Lord, Lord Warner, has said, falling on healthcare organisations. I think that my noble friend gave an undertaking on that on Monday but further clarification would be welcome.

Because of these concerns about the complexity of the new structure, I am asking the Minister if he could look seriously at this issue; go beyond the organograms and design detailed remits and powers for all those in the system to minimise confusion, gaps and duplication; and be as clear as possible at the outset as the reforms are implemented, while at the same time keep under review and address any confusion, gaps and duplication between the components in the system. Change is always a challenge. The more we can reduce muddle and confusion from the outset, the more successful these reforms will be.

[Lord Hunt of Kings Heath]

My Lords, I have a number of amendments in this group which concern the duty of the Secretary of State to keep health service functions under review. This is an important provision. I note that on what will probably be the last day in Committee, we have Amendment 354, which relates to a requirement on the Secretary of State to publish a report which can then be debated by Parliament. Although it is not grouped with this amendment, it is highly relevant to it.

It would be helpful to know from the Minister just how these matters are going to be monitored and how adjustments can be made in the light of experience. As my noble friend Lord Warner suggested, although we are not going to be allowed to see the risk register—I am very doubtful that we will see it before the Bill has passed through your Lordships' House—we know that considerable risks will come with these changes. The noble Baroness, Lady Cumberlege, spelled out some of the key issues that we face. The last thing that the health service needs is a massive reorganisation. Clearly, there are risks and it is right that there should be a regular review by the Secretary of State.

It is also right that the Secretary of State, when reviewing the operation of the changes, reviews all parts of it. I am extremely puzzled by Clause 49 concerning the duty to keep under review. The Bill sets out the bodies to be reviewed. They are the NHS Commissioning Board, Monitor, the Care Quality Commission, the National Institute for Health and Clinical Excellence, the Health and Social Care Information Centre and special health authorities. There is no mention of the plethora of bodies that will exist in the new system. There is no mention of clinical senates, the local field forces of the NHS Commissioning Board or health and well-being boards. Quite remarkably, there is nothing about clinical commissioning groups. Perhaps the noble Earl could tell me why the effectiveness of the CCGs is not to be kept under review?

Perhaps I have misread the Bill and this will be done in some other way. But I find it remarkable that this Bill is built around GPs and clinical commissioning groups, which are untried and untested, yet they are not to be kept under review. Looking at the architecture of this Bill, one begins to see very tight control of most of the health service but when it comes to clinical commissioning groups, issues of corporate governance, conflicts of interest or any of the other matters, it is incredibly light touch. It is as if we are to believe that, somehow, this part of the reforms is believed by the Secretary of State to be so remarkably able to carry out its duties that very little monitoring, performance management or review is to be undertaken. I would be grateful to know why clinical commissioning groups in particular have been left out of this list.

Amendment 243A concerns the annual report. In Clause 50 we see a requirement on the Secretary of State to publish an annual report on the performance of the whole service in England, which must be laid before Parliament. That, of course, is welcome. But my amendment asks that the report should include a statement on progress towards reducing relevant inequalities, on integration of services, on waiting time performance, and on health outcome performance. No doubt the noble Earl will argue that it is a list, and that the Secretary of State’s annual report is bound to cover these matters.

However, we are in new territory when it comes to specifying matters in the Bill. We are told that the Secretary of State is stepping back from involvement in the National Health Service, and that we should not worry about that, because there will be a mandate, and a constitution. All will be well. Those of us with some experience in these matters are rather doubtful as to whether that is sufficient in terms of accountability. In that context, it is right for Parliament to set out some details which we would expect the Secretary of State to report annually. Of course, there may well be other matters which one would wish the Secretary of State to report on, but my four areas cover some of the main points.

Amendment 245B relates to the intervention orders under the 2006 Act. I would be grateful if the noble Earl would confirm whether those intervention orders apply to the NHS Commissioning Board and clinical commissioning groups. If they do not, perhaps he could explain why not?

Amendment 245C deals with liabilities and the Secretary of State’s responsibility in relation to NHS organisations. Again, could the Minister confirm whether this duty applies to the NHS Commissioning Board and to clinical commissioning groups?

Amendment 245ZA relates to the general power of the Secretary of State. In page 289, line 30, the Government seek to dissipate the general power of the Secretary of State, as is currently set out in Section 2 of the 2006 Act. I realise that this takes us back to the crucial debate we had on day 1 about the powers and duties of the Secretary of State. The Explanatory Note which relates to this says that the reason for changing the wording is because there is no longer a duty on the Secretary of State to provide services. Given that those matters have been, in a sense, put to one side, is this part of the package that is being looked at, because it does relate to the general powers of the Secretary of State?

My noble friend Lord Warner made some very apposite points which I certainly support, and I was very interested in the remarks of the noble Baroness, Lady Cumberlege. I had been agonising about her amendments, and she has very helpfully clarified a point for all of us. She has really put her finger on it. I am disappointed that she did not take part in our debate at our last sitting ,when we discussed the complexity of the new arrangements.

We were promised a streamlined approach. What we have got instead is a highly complex set of arrangements. The NHS Confederation has expressed its concern about their complexity. I therefore like the amendment of the noble Baroness, Lady Cumberlege, that asks the Government to try to clarify for us who on earth is responsible for what in the new system.

When it comes to the key issues of the reconfiguration of specialist services and of funding, someone out there is going to have to hold the reins. Some agency or body is going to have to sort the problems out. It ain’t going to be the clinical commissioning groups. They are too small and they will not be able to do it, so someone else will have to. Is it going to be the clinical senates, or are we going to have to rely on the local government health and well-being boards, or will it actually be the local offices of the NHS Commissioning Board? I know that it will be the local offices of the NHS Commissioning Board. If that is so, we come back to the fact that that is patently going to be where the power is, and surely they ought to be made accountable. That is why I had an amendment down on our last day in Committee to turn them into statutory bodies. I detected a modicum of sympathy around the Committee, but not much more than that. However, the noble Baroness, Lady Cumberlege, as a distinguished former regional health authority chairman, knows that when we had the RHAs it was they that, in the end, had to intervene and sort problems out. There needs to be some sort of agency to do that in the future, and I think we should be told.

[Baroness Murphy]

My Lords, I had not intended to intervene but I have been stimulated to do so by the noble Lord, Lord Hunt of Kings Heath. The model being described of the Commissioning Board and its regional offices—the outposts—is very similar to the model that functions rather well for universities. There is the Higher Education Funding Council for England, which is centralised but also corporate with all its regional offices. The vice-chancellors, who you might say are the chief executives of the local organisations, relate directly to HEFCE. However, the regional executive officers are there to act as a moral support and a conduit. They do not necessarily sort out problems, but at least they are aware of them and know which areas the central body ought to be looking at. That is not so different from the way the regional officers from the Department of Health worked during the time of the district health authorities, between 1983 and 1990. If it is well done, and it has certainly functioned well for the duration of HEFCE, then it seems to me that it is a model which can be built on and developed. Is not that the way the problems the noble Lord is talking about will be resolved?

[Lord Hunt of Kings Heath]

I am grateful to the noble Baroness for her helpful intervention and I fully accept what she says. I want to make two points. First, we need an acknowledgment by the Government that there is going to be a kind of intermediate tier that, in the end, they can turn to when there are problems—if CCGs cannot work out a strategic approach or if reconfiguration is not taking place, as well as all the things that arise in the health service generally. My second argument is that I believe the health service is somewhat different from HEFCE in that it touches everybody, and the kind of issues that this intermediate tier will intervene on are likely to concern the public much more. There is then a case for making the intermediate tier a statutory body. Essentially there are two points here. I certainly agree with the noble Baroness about the importance of a helpful enabling intermediate tier which occasionally needs to intervene.

[Earl Howe]

My Lords, as I have observed on earlier occasions, I believe that this Bill increases Ministers’ accountability for the health service through a range of mechanisms. However, perhaps I may begin by saying to the noble Lord, Lord Hunt, that I agree that the Secretary of State’s annual report is an important mechanism through which he will account for the system. I am sympathetic to the objective behind Amendments 243 and 243A, which seek to specify areas for inclusion in the Secretary of State’s annual report, but I can reassure noble Lords that I expect to see mention of areas such as the reduction of inequalities set out in the report, as these issues are the foundation of a high-performing health service.

The Bill also sets out extensive powers of intervention in the case of failure, which are essential if Ministers are to be able to retain ultimate accountability for the health service. The intervention powers in the Bill are specific to the organisations to which they apply, which is the issue covered by Amendments 245B and 245C. With that point in mind, I believe that the powers set out by the Bill strike the right balance, enabling appropriate freedom for NHS bodies while ensuring that the Secretary of State can intervene in the event of their failure.

The Secretary of State’s duty of keeping performance under review only applies to national arm’s-length bodies. It does not refer to CCGs. The noble Lord, Lord Hunt, questioned why that was. We think that is right; however, the CCGs will very definitely be kept under review. The Bill sets out a robust process for the board to hold CCGs to account and sets out extensive powers for the board to keep the performance of CCGs under review and to step in where they are not performing.

The noble Lord also queried why there was no mention of a range of other bodies, such as senates and field forces. The answer is that they are part of the NHS Commissioning Board, which is specifically mentioned. As regards health and well-being boards, as the noble Lord will know, we intend them to be part of local government. I do not think local authorities would take very kindly to the Secretary of State for Health keeping them under review.

There are also a number of amendments in this group that are concerned with the transparency and accountability of arm’s-length bodies, such as the amendments of the noble Lord, Lord Warner. Much like the Secretary of State’s annual report, each arm’s-length body’s annual report and accounts must be laid before Parliament. I simply remind the Committee that all ALBs are under a duty to exercise their functions effectively, efficiently and economically, and the Secretary of State is required to keep under review how effectively they are exercising their duties and functions.

Finally, I turn to co-operation between the bodies in the system. The Bill sets out a formal duty on each organisation to co-operate, and the department will hold organisations to account for the way they work with each other, not just how they perform their own functions. As regards Amendments 240A, 243ZA, 350 and 351, I hope I can reassure noble Lords that, through these two routes, the department will work to ensure that duplication is prevented and gaps do not emerge. If the Secretary of State believes that the duties of co-operation are being breached or are at significant risk of being breached, he will be able to write formally and publicly to the organisations. If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself.

Amendment 245ZA looks to reinstate a power at Section 2 of the National Health Service Act 2006, which would enable the Secretary of State to provide services. We believe that the role of the Secretary of State should be one of oversight, direction-setting and intervention when organisations are failing. We have had many hours of valuable discussion on this topic; so while I fully understand the various concerns raised by noble Lords, I remind the Committee that all sides of this House have agreed to a process of engagement and discussion on this subject. The noble Lord, Lord Hunt, asked specifically in relation to this amendment whether this issue was covered by that process. The Clauses 1 and 4 process, as I call it, is considering the issue of the Secretary of State’s accountability for the NHS in the round rather than specific clauses in the Bill; so, yes, this would be covered by that process.

I hope that I have provided enough detail on these clauses to enable the noble Lord to withdraw this amendment.

[Lord Warner]

I wonder if the noble Earl could enlighten me, and indeed the House, on the story that is trailed in the Times today that the Secretary of State is going to have 60 benchmarks or indicators—which some of us would think looked like 60 targets. Are they going to be a key part of his process of keeping performance under review? Will he give the House a little more flavour of what that is going to mean?

17:15

[Earl Howe]

My Lords, that story in the press was about the outcomes that the Secretary of State is proposing should form the basis on which the health service is held to account. It is likely that the outcomes framework will form part of the annual mandate. These are proposals which we are hoping for comment upon. Therefore the answer to the question of the noble Lord is that the health service—I am not talking about the ALBs other than the board, but the National Health Service Commissioning Board—will be held to account against those outcome measures.

[Lord Warner]

My Lords, I have listened very carefully to the Minister. I am disappointed that he cannot agree to put something more specific in the Bill about administrative costs. I am concerned about those getting out of control, when the NHS faces a very difficult set of financial challenges. However, I hear what he says. We may want to come back to this at a later stage, but in the mean time I withdraw the amendment.

Amendment 240 withdrawn.

Amendments 240A to 243A not moved.

Clause 49 agreed.

Clause 50 : Secretary of State's annual report

Amendment 244

Moved by

[Lord Warner]

244: Clause 50, page 83, line 23, at end insert “and its integrated working with adult social care services”

My Lords, I have deliberately grouped these two amendments so that we can have a proper debate about the role of social care in this Bill—after all, it has “social care” in its title—and, indeed, about the associated issue of the importance of integrating health and social care, on which we have touched on a number of occasions in the Bill so far.

As I said in our recent debate on the Dilnot commission report, secured by my noble friend Lady Pitkeathley, we need to consider whether this Bill is a suitable vehicle for progressing implementation of that report. Here I should declare my interest as a member of the Dilnot commission. First, I shall make some remarks on the growing crisis, if I may put it that way, in social care and the implications of that crisis for the NHS and patients, particularly as, despite the extra money the Government have provided for social care in the spending review—I commend the Government on that—we still face a £1.2 billion shortfall by 2014, according to the King’s Fund.

The NHS and social care are in a symbiotic relationship with each other, in that what happens in one sector can have a profound effect on the other. That is what is happening now. The current problems have their roots in the past. Both sectors face the challenge of a service response to an ageing population. The fact that we live longer is, of course, something to celebrate, but it does have consequences for health and social care. By 2030 there are expected to be £2.5 million more people aged 75 or over. The current 1.5 million over 85 will double in the same period. The number living with dementia in the UK is expected to reach 1.4 million by 2040. We have nearly 18 million people living with long-term conditions that require treatment and care, but not necessarily in hospital. Getting the balance right in the resourcing, co-operation and delivery of services between the NHS and social care is critical to the quality of care and quality of life for this ageing population and for the cost to the taxpayer of those two services.

What is clear is that doing nothing and letting the current system carry on is not really an option. For example, the King’s Fund has shown that even if we do nothing to the current inadequate adult social care system, its cost will rise from £6.7 billion in 2011 to £12.1 billion in 2026. In that situation, the eligibility criteria for social care will get tighter and tighter, despite the extra expenditure, and the pressures on the NHS will increase as social care is unable to cope. Both systems need rebalancing and improved integration between the two.

However, they do not start from the same position. Since 2003-04, spending on social care has increased by 19 per cent in real terms, which is half the rate of increase in NHS spending in England over the same period. Despite this increase in spending on social care, access to state-funded services has reduced. In 2005-06, 60 per cent of local authorities restricted their service eligibility threshold to those whose needs were substantial or critical, leaving those with low or moderate needs to fend for themselves. By 2010-11, that 60 per cent had risen to 82 per cent of local authorities. As local authorities try to balance their budgets, they have cut the price they pay to providers, with a consequential impact on the quality unless they can persuade a growing number of self-funders to subsidise the care of those who are funded by the state. The impact has meant increasing burdens on informal carers, whose health is often not of the best, and rising costs in the NHS. Perversely, we can now end up with the taxpayer spending £3,000 a week to care for an 85 year-old in the medical ward of an acute hospital when they would be better off in a medically supervised £1,000-a-week single room in a nursing home.

At the heart of this problem is that social care simply does not have the standing of the NHS. If we are to improve social care and its integration with the NHS for the benefit of service users, we have to improve that public and political standing and realign the financial balance between the NHS and social care. I suggest that a good starting point for that would be the statutory duty placed on the Secretary of State. Leaving aside our current dispute over the precise wording of Clause 1, the Bill as it stands gives the Secretary of State the clear duty, which he has had for a long time, to promote a comprehensive health service designed to improve the physical and mental health of people and the prevention, diagnosis and treatment of illness. There is nothing equivalent to that duty in relation to the NHS for adult social care.

In subsection (1) of my new clause in Amendment 260DA, I have tried to even things up a bit by placing a clear duty on the Secretary of State to secure continuous improvement in the quality of social care services. This would mean that, when considering his priorities in relation to health and social care, the Secretary of State would have to consider securing a proper balance between both sectors. I suggest that both will face similar demographic challenges and careful consideration would then have to be given to how to allocate resources and priorities between the NHS and adult social care.

The rest of Amendment 260DA is intended, if I may put it this way, as a helpful encouragement to the Government to use the Bill to secure the legislative framework to implement the ideas in the Dilnot commission’s report but without the Government, at this stage, committing themselves to the precise financial figures in our report or the timing of implementation. The Government would be able to consider the responses to the consultative process that closed last Friday and prepare their White Paper in the spring as they are proposing to do. The amendment would remove the need to worry about whether they would have a piece of legislation on this subject in the next Session. I have to say that a number of us, both inside the House and outside, have a fair degree of scepticism about whether that Bill will actually happen.

There is widespread support for the direction of travel pointed to by the Dilnot report, with widespread consensus among stakeholders that this is the road we should tread if the finances of adult social care are to be placed on a more secure footing over time. It is no purpose of mine today to go into the detailed merits of the Dilnot commission’s report. However, I would like to hear, especially from the Liberal Democrats who have been supportive in this area, whether they support moving forward swiftly as many of us do. What I should make clear is that I regard subsection (1) of Amendment 260DA as standing on its own merits irrespective of the Government’s attitude to using this Bill to create a legislative framework for implementing Dilnot. I cannot say that my optimism on that aspect is all that great. However, I hope we can secure support across the House for inserting something in the Bill along the lines of subsection (1) so that when the Bill leaves this House there is a bit more equilibrium between the duty placed on the Secretary of State in relation to the NHS and that placed on him in relation to adult social care. I am not wedded to the precise wording of my amendment but I hope we can actually secure some cross-party consensus on the need to put something that follows the spirit and thrust of that subsection into the Bill before it leaves your Lordships’ House.

Amendment 244 simply requires the Secretary of State, when he publishes his annual report on the NHS, also to report on the health service’s integrated working with adult social care. This is such an important part of how the NHS will work in the future, particularly with the financial challenges that are faced, that I believe we should make specific reference to it in the Bill. I hope the Government agree. I beg to move.

[Baroness Pitkeathley]

My Lords, my name is attached to Amendments 244 and 260DA. I want to emphasise how vital integrated working is from the point of view of the patient. Most patients, especially older ones or those with a long-term condition, do not experience either health or social care but some kind of combination of both—combinations that fluctuate according to variations in their condition.

This, as we have been reminded, is a Health and Social Care Bill yet the Committee debates thus far have not reflected the experience of patients and their families but have been very focused on acute care and the role of hospitals. I am delighted that consideration of these amendments gives the Committee the opportunity to focus more acutely—no pun intended—on the social care aspect of the proposed legislation. I strongly support the call for social care provision to be subject to annual review. I remind the Committee of the multifaceted nature of social care—residential care, home care, respite care and increasingly tele-care—and of the range of providers such as private, voluntary and social enterprises. Many of these services are facing huge challenges because of increased demand and reduced resources so it is clearly vital that a review is carried out regularly and I can see no reason why the Government should not agree to this amendment.

17:30

Amendment 260DA focuses on setting standards and improving quality in adult social care. I think there is general agreement that the current social care system is not fit for purpose. It was set up originally for a country in which men died at the age of 66, shortly after retirement, and women died before they were 70. The new statistics which show, for example, that 11 million people alive today will live to be 100—I suggest that the Queen will run out of telegrams—are, as my noble friend has reminded us, a cause for celebration, as is the fact that so many more people are living not only longer but with greater degrees of disability. This means that we are spending inadequate amounts of money on care and support, both publicly and privately, and have been doing so for some time. Social care funding has totally failed to keep pace with demographic change. Since 2004, while spending on the NHS has risen by £25 billion, spending on social care rose by just £43 million; that is 0.1 per cent per year in real terms.

As my noble friend has reminded us, to cope with rising demand and static resources, councils have increased charges for care services and rapidly raised eligibility criteria, with the percentage of councils providing support to those with moderate needs decreasing from 50 per cent in 2005 to only 18 per cent in 2011 as eligibility criteria are raised to cover only those with substantial or critical needs. This has been compounded by recent local government spending reductions, with directors of adult social services reporting £1 billion-worth of cuts to services in 2010-11, and warning that the same level of cuts or even greater ones will have to be made next year. Our public provision is largely seen as providing poor services for poor people. There have been several examples of this in recent months, most notably the report from the EHRC, which was so notably led by the noble Baroness, Lady Greengross.

In considering how difficult the situation is with regard to social care services, we should never forget that a lot of good work is being done within the system because of the dedication and skill of thousands of people who work in it. These workers and their agencies have had some success in recent years looking at the personalisation of services and promoting independence and even early intervention. There are pockets of great service to be admired and we should always remember that, but in general the care and support system is perceived to be: starved of cash; failing to meet the volume of need; unfair; and a lottery, especially for people with middle incomes in that if you die neatly without needing to use care services, you pay nothing, whereas if you become disabled though a long-term illness or you have Alzheimer’s, for example, you may need expensive services at full cost for many years, involving thousands of pounds—even hundreds of thousands of pounds—so people who have a home and modest savings are hit very hard.

The system is also extremely confusing, difficult to find your way around, different in different parts of the country and not portable when you change location. Moreover, the caring families—the informal carers, as my noble friend referred to them—as well as the individual who needs care, suffer at the hands of the system, which for them too is complex, costly and unfair. Family members end up sacrificing their careers, finance and their own health in order to provide care for disabled or older loved ones, while getting little or no help from a social care system and finding services poor-quality and expensive.

However, if you have a carer, you are luckier than the frail older person living alone whose total social care is 15 minutes once a day, twice if you are very lucky. That is not enough to keep you clean and comfortable, as we have often been reminded. These problems are only going to get worse if nothing is done. The Dilnot commission, of which my noble friend was a distinguished member, published its proposals in July. They aim to change the way in which social care funding is raised and spent, extending entitlement to public funding for social care in a way that is acceptable and sustainable for the taxpayer. Your Lordships will be familiar with its main recommendations: the contribution of an individual to their social care in their lifetime being capped—of course, there is dispute about what the level of the cap should be—the means-tested threshold over which people are entitled to full costs being raised to £100,000; national eligibility criteria and portable assessments; and all those who enter adulthood with a care and support need being immediately eligible for full state support. One recommendation which is often overlooked, but which is of huge value to users and carers, is that a new information and advice service be set up to guide families on what they need to know.

The cost of these proposals is estimated to be about £2 billion, though the figure is disputed. This is, of course, a large sum but it must be compared to the £170 billion which social security costs, or indeed to the £119 billion which is the value of the carers’ contribution. In difficult financial times, these are difficult figures and the question of how the money is to be found exercises us all. A better question may be what will happen if that money is not found. As I pointed out in the recent debate mentioned by the noble Lord, Lord Warner, unanimity of support for the Dilnot proposals is as great as I have ever seen it on this issue. The current consensus is that it is inescapable for the future funding of social care to be based on a combination of individual and state responsibility and contribution. It offers the prospect of a lasting settlement based on a partnership approach. There is not unanimity on every aspect of the Dilnot proposals, but there is more consensus than we have ever seen around this issue.

The amendment provides a practical and, I contend, relatively uncontroversial way of taking action now. If we adopted it and, indeed, if we adopted the Dilnot proposals, we would gain some advantages. We would spend existing resources better. It would improve the integration of health and social care systems. We should never forget what happens if you do not provide proper social care. People will inevitably turn to the NHS if they do not get adequate social care. They will go to their local casualty or to the NHS as an emergency, increasing the numbers of emergency admissions or delayed discharges. The inconsistency between fully funded NHS care and means-tested social care hampers delivery of an integrated care system.

If we adopt these proposals and put social care on the same footing as healthcare, the rights and responsibilities of individuals and agencies would be clear to the public. If people were clear about their future personal liability, they could plan now about how to meet care costs. One of the great problems we have in social care is that no one ever plans for their future care needs. Families just do not talk about it. One of the reasons they do not talk about it is because there is still an assumption in our society that the state will meet all your needs. Social care has always been means-tested, but people still think that the state will meet their care costs. If we put this much more openly on the face of the Bill, we would stimulate people to discuss their future care needs and stimulate the care market to provide more choice.

The Government are committed to a White Paper in the spring, but it cannot be stressed too strongly that action is needed now, to take advantage of the near consensus which exists around this issue. We should harness not only the consensus in the care sector, which is so clearly set out by the 52 organisations in the Care and Support Alliance, but the willingness of political parties to cross party-political divides in the interests of finding a solution to the social care dilemmas. Without doubt, we must find political consensus. I know my own party has suggested ways of facilitating this. In the debate on 10 November on social care, I reminded your Lordships of what the Minister for Social Care said in answering a debate in the other place: that,

“when the decisions are made … I hope we will be in a position to legislate at the earliest opportunity. Social care has languished … in the ‘too-difficult-to-do’ box for far too long. We are the Government who are committed; we see the urgency and the need. I hope that together we can get the cross-party lead which results in the changes which are long, long overdue”.—[Official Report, Commons, 10/11/11; col. 181WH.]

I know that all noble Lords will agree with that. The Government have promised legislation in the near future. This amendment provides an opportunity to address now an issue that is of concern not only to your Lordships’ House but to the whole of society.

[Baroness Murphy]

My Lords, I have added my name to the amendment because we are considering a Bill under which we are trying to improve the efficiency, effectiveness, productivity and quality of the NHS. Yet we know that that is completely impossible without improving the social care system.

When I first picked up a copy of the Bill from the Printed Paper Office and read it through, I thought that there must be a third part that would address social care. I therefore rang up the department and spoke to the relevant David—they are all called David—and asked, “Where is it, David? Where are the social care bits that should go with it to make it a Health and Social Care Bill?”. He just said, “Oh, that comes later”. The reality is that many medical specialties simply cannot function effectively without social care services. Those specialities include general practice and my own in geriatric psychiatry. Much of that work involves people with long-term conditions, mental health problems, learning disabilities, all care of the elderly, all primary care and community services. I spent some years of my life trying to transfer money—rather successfully in Lewisham—out of the NHS and into social care, in order to be able to perform my job.

We are not getting the best use of the specialities in the National Health Service for wide tracts of the population simply because we have inadequate domestic personal care, inadequate assessments under social care, inadequate provision of support for carers and those vital bits that make real life work. We know that 40 per cent of the increase in demand for NHS services is entirely dependent on the change in the demographic over the past 20 years. We know from the predictions of McKinsey and others that that increase will continue unless we do something about it.

I used to do a lot of work in the Italian health service, where social care, because it has been so dependent on church organisations, is not organised in the same way that we are. The Italians began to be seriously worried, and they still are, because of the horrendous bed-blocking and poor health services for older people. I hate the term bed-blocking; it really means an inappropriate service to an older person. Who cares whether the bed is blocked? I personally did not care about that as regards my patients. The important thing is that the patients were not getting the appropriate services they needed in the community.

Unless we get a government response on how social care is to be funded in the community and in residential and nursing care that is doable, feasible and affordable, we will not make much progress in the health service because we will be constantly coming back to this problem. It is for this reason that I have added my name to the amendment. I do not know if it is the right amendment. I saw it as a way of kicking the Government a bit further to get a move on about the social care response. The Bill will not work for the NHS of the future unless we have an appropriate social care service response.

[Lord Turnberg]

My Lords, there is little doubt that one of the key elements in the delivery of a system of care which improves on what we have now—and we certainly need to improve the current position—is the need to integrate care between the NHS and social care. It is in that light that I have found the Nuffield Trust report, Towards Integrated Care in Trafford, which I am sure that many noble Lords have read, so helpful. A number of things of value come out of the report. First, it needs local buy-in, the involvement of clinicians, managers, patients, local authorities and the public. It also needs good data-sharing, good leadership and time. It does not happen overnight. It took them two years, despite having all the enthusiasm and conditions in the area, for it to get off the ground.

Of course, all that needs the will of those who are paying for the services—the commissioners—if they are to pay for integrated care across the divide, which has proved so difficult. All those local changes depend on funding. If we believe that improvements in this area are critical—and I am sure we do—surely it should find a stronger place in the Bill, in particular in the Secretary of State’s annual report. Amendment 244 states that we should insert the words,

“and its integrated working with adult social care services”,

in the report. That seems to me entirely appropriate and I hope that the noble Earl will consider that as a useful amendment to take forward.

[Baroness Cumberlege]

I just ask the supporters of the two amendments a question—the noble Lord, Lord Warner, may be the appropriate one, having been a director of social services. The amendment talks about breaking down the barriers. We are all at one with that. I was very interested in what the noble Baroness, Lady Pitkeathley, said about the Dilnot report; the noble Lord, Lord Warner, was a distinguished member of that committee, of course. Having listened to the amendment’s promoter, I thought it was very persuasive and one could see a real future there.

One of the blocks that has not been addressed in this debate is the difference in accountability in terms of the democratically elected councillors who are responsible for social care. I wonder whether the Lord, Lord Warner, had thought about ways to try to harness that to get that integration. To try to bring together two very different accountabilities is a real challenge.

[Lord Warner]

I shall briefly respond to that. We should never forget that the lion's share of the money that goes on state-funded adult social care comes from central government and is passed through local authorities to be spent on that group through the commissioning of various domiciliary, residential and even nursing home care. Although what I have crafted is a duty on the Secretary of State, a lot of this comes back to where the balance is struck between the NHS and adult social care in terms of priority and funding in Richmond House. They are all under the same departmental expenditure limit at department level.

The sense I had as a Minister was that it is a bit like the Army: you have to put a musician in the canteen. A former director of social services is kept well away from social care in Richmond House. I saw a reluctance in the NHS culture in Richmond House—which, thankfully, has changed with the arrival of David Behan —to fight for social care at the time of expenditure reviews. That is a real and serious issue. The big guns of the acute sector are alive and well in Richmond House when the expenditure review comes around. My noble friend Lord Hunt is nodding—I think enthusiastically, given his current job as chairman of a foundation trust. This is a real issue. We need a bit more balance in the statutory duty on the Secretary of State in order to align the money going into social care vis-à-vis the NHS.

There is a perfectly good point to be made at the local level. You want to see priority being given to adult social care at the local level, and you want to see openness on the part of local government—which, if I am honest, has not always been there—in working across the boundaries with people in primary care and in the NHS. That is absolutely an issue. However, if in local government you have only enough money to deal with people with substantial or critical needs, then your ability to help people with moderate needs and stop them getting worse will be restricted by the amount of resources available. It will then be extremely difficult to work across that boundary. We know that many local authorities have reprioritised their services, taking money away from other services and putting it into adult social care, but a very clear finding from the Dilnot commission was that the adult social care pot is simply not big enough. It is no good for us to keep uttering that there is a need for integration if there is not enough money at the local level for adult social care to work across the boundaries.

[Baroness Greengross]

My Lords, I strongly support the amendment and the remarks of the noble Lord, Lord Warner, and the other noble Lords who have spoken. Over the past 50 years we have seen a huge rise in longevity. In this century and at the end of the last century, that rise in longevity has been largely due to medical success in taming many acute and terrible diseases that once we could hardly even talk about. Now, many cancers can be lived with for a long time. However, the big and difficult condition to be dealt with now is dementia. This is a long-term illness and it is terminal in various forms, yet the care for people with dementia is funded largely through social care. This, in itself, is an enormous anomaly. One in four patients in hospital who are elderly and a huge number of people in the community have dementia, but that illness is treated as being due for social care, not NHS care, although the borders do blend to some extent.

We need to celebrate that huge medical success but we cannot do so if we go on as we are with the funding of, and attitude towards, social care, which remains very much as the Cinderella between the NHS and the community. Many people now say that this differential means that in reality we should close 20 per cent of acute hospital beds and transfer those patients to a different sort of care—perhaps hospitals transformed into community hospitals. It is not a case of killing them off; they should be transformed into care centres where people with these long-term conditions can be properly treated. We really must work towards that and accept the truth of it. If we do that, there will be an obvious need to integrate health and social care quite differently from the way that we have done it in the past. What is needed is not a transfer of resources but integration. We must get this right.

I have recently been involved in the EHRC’s inquiry into the care of older people in the community. We found that while a quarter of a million people are happy with the social care they receive in their homes, another quarter of a million are not—and understandably so because some of the ways in which they are looked after are, frankly, appalling. This is partly because of the huge diversity and differential in the allocation of resources, as well as the status and training of staff in dealing with the most difficult issues and problems. I am not going to go through everything I learnt from that inquiry. The report has been published, and I hope it will be helpful to many people in policy-making and in practice.

If we get this right and we keep people in the community for longer, we will save an enormous amount of money. At the moment, adult social services directors have no choice but to give money to the people in the most acute need, which means that the social care needs of all these other people are therefore not being met. If I were one of those directors and I had to choose where my money was going to go, that is what I would do. That needs to change because of the necessity of resource integration. We must find a way to intervene earlier, for dementia for example, with drugs, early diagnosis, and treatment in the community. People will then be able to live in the community for much longer and many will die in the community. An enormous amount of money will be saved. Care for people with dementia, in particular, in hospital is really unsuitable. It is bad for them and it is extremely bad for other patients. It really must change.

One reason that community care goes wrong is annual budgeting. If, like local authorities, one has to have an annual budget, one can do no preventive work. At least a four-year cycle is needed. It is like starting a business, investing in it, and expecting the return within a year—it cannot be done. One must wait a few years for the return. However, local authorities cannot wait because they lose their central government grants; we need to change that. The well-being boards need to be given the resources to integrate care properly so we can get rid of this imbalance.

Further, the Dilnot recommendations—and I congratulate the noble Lord, Lord Warner, on the distinguished role he played in this—are the first realistic proposals which bring together all sectors—public, private and voluntary—to get it right, with what seems to be a political consensus. This is such an opportunity, and we really cannot afford to lose it. Older people will suffer the most. There is still an enormous amount of discrimination. The social care we offer to younger disabled adults and to people with physical or learning disabilities is totally different; the attitude, and the range of resources and skills available to younger adults are quite different. This is direct and really damaging discrimination. The only way to change this is by integrating resources through the well-being boards. We need to make Dilnot a reality so that in the longer term all of us know enough to save for our pensions and our care. This amendment is essential if we are to get some action now. I support it very strongly.

18:00

[Baroness Emerton]

My Lords, I support the amendments, first, because I totally agree with them. The second reason takes me back in history—I think it was 1976 or 1978—to when the Government had a Bill proposing that learning disability clients should be taken out of mental handicap hospitals and placed in the community. I had the privilege and lovely responsibility —this is when old age comes into experience—of managing that project. I worked with the noble Lord, Lord Warner, who was then director of social services. I also worked with Lambeth, Lewisham, Southwark and all the London boroughs, which were absolutely against having patients transferred to the community.

If there is something in the Bill and it is government policy, everybody will work towards it and understand that there must be integration. We have mentioned the word “culture”. I found this issue absolutely fundamental. It runs through the whole issue. The noble Baroness, Lady Cumberlege, was also part of this exercise. She was in Brighton at the time and some clients went to Brighton. It was extremely difficult to get local authorities to understand the needs of some of these clients. Some had special needs and difficult behavioural problems. However, we got there because we had target dates by which we had to do it and also because we had trained staff. We have not yet spoken about the workforce, except in terms of carers and social care. We need to have a workforce that will be able to supply the level and standards of care that will be required.

My noble friend Lady Greengross has just mentioned the fact that dementia care in hospitals is not good. That is probably very true, although it is good in some places. We must look at training needs for social care as well as for transferring patients to secondary care. The culture issues are important and once they are included in the Bill, one can get to work on them.

[Baroness Barker]

My Lords, I will speak briefly in support of the amendment and answer the point made by the noble Lord, Lord Warner. Since 1948, we have had a system whereby there has been an agreed national settlement on a person's entitlement to healthcare. It is delivered to national criteria and demand is managed largely by waiting times. Running in parallel is social care, where there is no national entitlement and demand is managed by eligibility criteria. The two systems are administered in parallel by completely different people, side by side. Successive reports have set out for us all the different ways in which the two systems do not work together. People have analysed the reasons why the systems do not work together.

The most telling thing for me is that we have known for a very long time, because we have evidence to prove it, that if older people are discharged from hospital and are supported through the period of discharge, the likelihood of them being readmitted to hospital is very low. We also know, because of that, that the cost to the NHS decreases. I am afraid to say that those of us who work in the charitable sector also know how impossible it is to get the NHS to run a hospital discharge system. The noble Baroness, Lady Emerton, is absolutely right. I do not want to throw blame about, but it leads to my point about why I think the amendment is important. The biggest single thing that will make an impact on the NHS is cultural change. There are a lot of barriers in the NHS to that change. We have heard the point echoed in our debates over the past few weeks. Some of our most eminent clinicians have made the point very glibly that there is very little evidence about what works in social care. That is true; social care has some way to go in developing an evidence base. However, we have some evidence and it still gets ignored because social care is not up there with healthcare.

Noble Lords have talked throughout our debates about specialist nurses and how important they are. I have come to the conclusion that the greatest asset of a specialist nurse is that they know their way around social care and can explain it to people in the NHS. I do not wish to denigrate specialist nurses in any way; they do a fantastic job. However, part of me thinks that if they are the only ones who understand the system, are they letting the rest of the NHS off the hook? The biggest single thing that will make the Bill work or not work is whether everyone in the NHS sees it as their responsibility to understand and work with social care.

The amendment of the noble Lord, Lord Warner, is cleverly worded. I congratulate him on that. It is based on Dilnot and the Law Commission, although he has crafted it using general terms so that it is not specific to those two reports. I commend him for that. On balance, the most important part of the amendment is proposed new subsection (2)(b), which reflects the Law Commission report. Until we get nationally agreed standards of eligibility, assessment and charging policies, it will be impossible for anyone who works in the NHS to know what it is they are supposed to be integrating with. That is the key point. I understand that Dilnot is important in terms of funding, but the Law Commission report is the important one.

I listened very carefully to what the noble Lord, Lord Turnberg, said. I always do. It is a very good report; I agree with that. However, he said that all these local developments in integrated care depend on funding. He is right, but there is a huge amount of wastage of resources throughout the health service. I pick up on this at local level. It comes down to two things: data are not shared and there is no understanding of common assessment of needs. Those two things cost the NHS and social care a fortune. Proposed new subsection (2)(b) of the amendment is so important because it covers the key area on which we have to work.

Perhaps noble Lords have been slightly pessimistic about the Bill. The existence of health and well-being boards is important. It will be possible, locally if not nationally, to begin to work on these issues. It will be possible for some areas to do highly innovative stuff. Noble Lords have talked about the work done in Torbay. When my colleagues were in charge of the borough of Islington, they had a very interesting approach. Social services took responsibility for everything that was to do with children and the NHS took responsibility for everything that was to do with older people, which included social care. I would like to see more of that and I hope that health and well-being boards will bring it about.

Presumably the noble Lord, Lord Warner, was told to have a go at the Liberal Democrats today. I was surprised that he asked about our attitude to the Dilnot report and the Law Commission report. At our conference in September we passed a resolution to the effect that we welcomed the reports and wished to see the Government implement them quickly. We have not come up with a series of bureaucratic provisions to hold up implementation. I pay tribute to Paul Burstow. He came into government when the previous Labour Government had not resolved the issue in 13 years. He found extra funding for social care and went out of his way to make sure that the Dilnot review was set up. He laid down a challenge to us that I pass on to noble Lords. He challenged us to campaign on social care with all the passion and vigour that we do on the NHS. I challenge noble Lords to do that. Actually, I would like to challenge 38 Degrees and everybody else to do that, because there are an awful lot of people who are willing to be as vociferous as you like on the NHS but are suddenly silent when it comes to social care. Some of us have had enough of that. I commend the noble Lord’s amendment.

[Lord Warner]

I was not doubting the enthusiasm on the Liberal Democrat Benches regarding this area. I just wanted to provoke the noble Baroness into giving the kind of excellent speech that she has given. I was hoping that we would hear from her. I also join her in paying tribute to Paul Burstow, and indeed Norman Lamb, for the very supportive way in which they have approached this issue.

[Baroness Thornton]

My Lords, we have had a very interesting debate on this imaginative amendment from my noble friend Lord Warner. Today’s debate might well be the only debate on social care in the whole life of this Bill, including in the Commons. I would like to talk about some real people, with real conditions and real problems, because it is only by testing this Bill against those that we will know whether it is going to work, and whether the issues that are being raised by noble Lords across the House are going to be taken into account.

I would like to pick up where the noble Baroness, Lady Greengross, left off, and talk a bit about dementia, partly because I have a very close friend whose wife has dementia and I have been following the path of this for the last seven or eight years, but also because this is an issue that affects hundreds of thousands of people. The Alzheimer’s Society reckons that: there will be 1 million people with dementia by 2025; dementia costs the country £20 billion now; one in three people over 65 will die with dementia; only 40 per cent of those have a formal diagnosis—that figure varies enormously across the UK; and, of course, which is the reason why they are important to this debate, people with dementia are very significant users of health and social care services. We know that people over 65 with dementia are currently using up one-quarter of hospital beds at any one time. The current system of charging for care, such as help with eating, hits people with dementia hardest, as the noble Baroness, Lady Greengross, has said, and amounts to what the Alzheimer’s Society calls a “dementia tax”.

We know all of this. The All-Party Parliamentary Group on Dementia, the National Audit Office and the Alzheimer’s Society have identified that significant resources are wasted on poor-quality care—for example, through crisis admissions into hospital or long-term care. There are opportunities to save money in dementia care across a wide range of settings; for example, by investing in early intervention and prevention services. In a way, those matters are the test of this Bill. Can we save the money and deal with the people who have got dementia? How can we promote a shift of NHS resources away from acute hospitals into community-based services, as recommended by the NHS Future Forum and the recent inquiry by the All-Party Parliamentary Group on Dementia?

I know that the Government recognise that a sustainable NHS in the future requires a new long-term settlement on social care to ensure quality for people facing disability and long-term illness. We think that this amendment will help with that. When I was looking at this amendment, I remembered that I myself was given a speaking note that said, “Of course, health covers social care, too”. That is not good enough any more; it is not good enough to say that by writing health into the Bill and giving the Secretary of State responsibility for it, we are somehow covering social care. Apart from anything else, it has not worked. We know it has not, and we are where we are. There are some very serious issues.

18:15

What does my friend whose wife has Alzheimer’s face? For seven years they have been coping as her Alzheimer’s has progressed, and coping very well indeed, but he is now getting on, too. I thought it might be worth looking at what is in store for him, and perhaps when the Minister responds to this debate he can also address what is in store for this person. We know that the local authority is making cuts in day care; he has told me that his respite care is being reduced at the moment because of the strains under which the local authority finds itself. We know that the assessments for his wife—and himself, possibly, as he gets older—will get more and more difficult as the criteria move up the ladder of seriousness.

I am concerned about the immediate problems that my friend and his wife face, but I have become concerned about the medium term as well, which is about the transition and the risks that are posed to people like him in the transition to the new architecture of the NHS. He is absolutely the ideal carer that my noble friend Lady Pitkeathley has been talking to us about for many years. He and his family have taken responsibility for his wife’s condition. He has managed the system on her behalf. However, he is getting old and tired and he will get frail himself. These are the people who fall down the gaps in our system.

When I was preparing for this debate, I also looked at the report by the King’s Fund on integrated care. Obviously, we all know the King’s Fund well; it tends to talk about structures and theories and so on, but this report did point to examples, one of which was mentioned by the noble Baroness, Lady Barker, about care for older people in Torbay. I would like to raise two issues that the report referred to and then I would like to mention the ingredients that the King’s Fund says are important for integrated care, and to see how those apply to what is proposed in this Bill.

One of the schemes that is commended by the King’s Fund report is the Bolton diabetes centre, which was,

“set up in 1995 and is the base for a team of community-based specialists. The team reaches into the local hospital for inpatient care, and out to general practices to provide support and undertake shared consultations. The vision is of care that is patient centred and delivered in the appropriate place”,

for the person concerned. The centre has aspired to develop,

“a fully integrated diabetes service without gaps or duplication and with smooth and quick referral from primary care to specialist advice. Patients and staff have reported high levels of satisfaction with the service, and in 2005/6 Bolton reported the lowest number of hospital bed days per person with diabetes in the Greater Manchester area”.

That is a very good example of a scheme that is working.

Another example in the King’s Fund report relates to something that has not featured very much in these debates, and that is stroke care. The report says:

“Stroke care in London and Manchester has been improved by planning the provision of these services across networks linking hospitals. Manchester uses an integrated hub-and-spoke model that provides one comprehensive, two primary and six district stroke centres. Results include increasing the number of eligible patients receiving thrombolysis within the metropolitan area from 10 to 69 between 2006 and 2009. In London implementation of a pan-London stroke care pathway and the development of eight hyper-acute stroke units has improved access and reduced length of stay in hospitals: 85 per cent of high-risk patients who have had a transient”—

I can never pronounce this word—

“ischaemic attack are treated within 24 hours, compared with a national average of 56 per cent, and 84 per cent of patients spend at least 90 per cent of their time in a dedicated stroke unit, compared to a national average of 68 per cent. Five of the top six performing hospitals in the National Sentinel Audit for Stroke are now London hyper-acute stroke units”.

We know that hundreds of lives have been saved in London and hundreds of people have gone on to make a full recovery from a stroke there.

According to the King’s Fund report, the first core ingredient of integrated care is:

“Defined populations that enable health care teams to develop a relationship over time with a ‘registered’ population or local community, and so to target individuals who would most benefit from a more co-ordinated approach to the management of their care”.

How will that be achieved without, for example in London, NHS London to drive the integrated stroke system? How will that be achieved when we have clinical commissioning groups that are not coterminous with their local populations? How will that be achieved with health and well-being boards if they do not have the right powers and tools at their disposal and the right kind of accountability to deliver?

Another core ingredient is:

“Aligned financial incentives that support providers to work collaboratively by avoiding any perverse effects of activity-based payments; promote joint responsibility for the prudent management of financial resources; and encourage the management of ill-health in primary care settings in order to prevent admissions to hospitals and nursing homes”.

One of the issues I would raise regarding that is how “any qualified provider” fits into the kind of integrated pattern of care that is being suggested here.

Another core ingredient is:

“Shared accountability for performance through the use of data to improve quality and account to stakeholders through public reporting”.

Again, we are addressing issues of public accountability throughout this Bill, and again we can see that, if you are going to deliver integrated care, that is a very important matter.

The report goes on to talk about:

“Information technology that supports the delivery of integrated care, especially via the electronic medical record and the use of clinical decision support systems, and through the ability to identify and target ‘at risk’ patients

A physician–management partnership that links the clinical skills of healthcare professionals with the organisational skills of executives, sometimes bringing together the skills of purchasers and providers ‘under one roof’”—

which is, I suggest, a challenge at the moment—

“Effective leadership at all levels with a focus on continuous quality improvement

“A collaborative culture that emphasises team working and the delivery of highly co-ordinated and patient-centred care”—

we have to test that collaborative culture, and we shall be doing that next week against the competitive stream that is in Part 3 of this Bill.

Finally, the report mentions:

“Multi-specialty groups of health and social care professionals in which, for example, generalists work alongside specialists to deliver integrated care”.

The last, but in a way the most important ingredient—which should have been at the top of the list, so the King’s Fund should take a slap on the wrist for that—is:

“Patient engagement in taking decisions about their own care and support in enabling them to self-care”.

I think there is precious little in this Bill that delivers that kind of patient input, so we hope to improve it.

My final remarks are that I support, of course, the remarks that have been made about moving towards Dilnot and making sure that its proposals are carried out. If this amendment helps to take that forward, then I think that is right and we should support it. The noble Baroness, Lady Barker, was quite right, though, when she said that the Law Commission report was crucial to this exercise and to the national assessments. I do not think it is a case of one being set against the other, but there is absolutely no doubt that it is vital for the delivery of national assessments.

I understand that the noble Baroness and her colleagues have not appreciated the attentions of some of the campaign groups that have been concerned about this Bill. Well, you know what? You cannot choose your campaign groups. As a politician, you just have to listen to what they say and then decide whether you like it or not. The noble Baroness has obviously not enjoyed their attentions, but I wish them all the best. I think they are doing exactly the right thing, but I would say that.

This is an important issue. We easily lapse into structures, and words about structures, and we lose sight of the fact that this is about our fellow citizens. When I look around this Chamber, I know that a lot of your Lordships are carers who are taking responsibility for people in a very direct fashion. I will not say who you are, but I know who you are and I know that you are as passionately concerned about this matter as we are on these Benches. It is very important that we take the opportunity this Bill offers to make progress on this issue.

[Earl Howe]

My Lords, with Amendments 244 and 260DA, the noble Lord, Lord Warner, has taken us to the important matter of the relationship between the NHS and social care, and I agree with him that this relationship is in a real sense symbiotic. The noble Lord presented us with some sobering facts and messages about the increasing pressures that are likely to arise in our health and social care services over the next two decades, and it is in large part because of those looming pressures that the Government have brought forward their proposals for health service reform. The noble Lord deserves to be listened to with close attention, and I again pay tribute to his work as a member of the Dilnot commission.

Looking first at Amendment 244, we strongly agree that integrated services are important. The noble Baroness, Lady Greengross, brought home that message compellingly. This is why, throughout the Bill, there are duties to promote and encourage the commissioning and provision of integrated services. It is a vital principle. However, sympathetic as I am to the spirit of the amendment, I feel that the Bill’s current wording already provides for what it seeks to achieve. I would already confidently expect the annual report to cover aspects of service integration, and that is because integrating services, both between different parts of the NHS and between the NHS and other public services, would be essential to providing a seamless and high-performing health service. The change of culture that the noble Baroness, Lady Emerton, and my noble friend Lady Barker spoke of will not happen overnight, but it can be encouraged and promoted by shining a bright light on how well or badly the NHS is performing in this area.

Turning to Amendment 260DA, the Government are absolutely clear that a key objective of social care reform must be to improve outcomes for individuals and their families and carers using social care. Again, I completely understand why the noble Lord has brought forward this proposal, and I recognise that the amendment has been carefully crafted. In explaining the amendment, the noble Lord expressed worry about whether the Government are serious about pressing ahead with reform. The Government have committed to setting out proposals for the reform of social care in a White Paper and a progress report on funding reform to be published in spring of next year, with legislation to follow at the earliest opportunity. I can confirm to my noble friend Lady Barker that this will include our response not only to Dilnot, but also to the report published earlier this year by the Law Commission.

We agree that reform of the system is urgent and we debated these very issues recently and in some depth in a debate led by the noble Baroness, Lady Pitkeathley. If the Committee will forgive me, I will not repeat what I said on that occasion. However, on 15 September, the Government launched Caring for Our Future: Shared Ambitions for Care and Support, which was an engagement seeking views about the priorities for improving care and support. This focused period of engagement has been welcomed by stakeholders and, although it officially concluded on 2 December, we will continue to work closely with the social care sector as we formulate our proposals for reform.

18:30

The noble Lord proposed that the duty to secure improvement should include efforts to reduce the barriers to integration of health and social care. We are very much aware of the concerns about the integration of services and have asked the NHS Future Forum to consider this in more detail. This work is being undertaken in collaboration with caring for our future, the engagement on social care reform. Appropriately, there is integration of this work on integration.

I would say in particular to the noble Baroness, Lady Pitkeathley, that “Caring for our future” has also been considering the recommendations of the Law Commission and the Commission on the Funding of Care and Support, including those on portability, assessment and eligibility for social care. This has highlighted her point about the importance of clarity of the state offer to help people to plan and prepare to meet their own care costs.

Given this ongoing work ahead of publication of the White Paper on social care reform, we do not want to pre-empt our consideration of the feedback from the engagement or to make changes to the existing statute when more fundamental reform is already planned. Indeed, the Law Commission’s recommendations seek to address the current piecemeal nature of social care legislation, having noted that social care statute is confusing and unclear. However, I emphasise again that the Government have committed to legislation at the earliest opportunity, which we believe will be the most appropriate vehicle for debating these critical matters.

In this context, these amendments are unnecessary at this time, although clearly they have been proposed for the best of motives, which I share. It is our view that proposals for reform of adult social care services, including a continued focus on better integration with health services, should be encompassed within the overall proposals put forward in the White Paper next year, and informed by the work of the Future Forum and the engagement with the social care sector that has been taking place in recent weeks.

As long as the noble Lord realises that I am not in any way dismissing the importance or salience of the issues that he has raised, I hope for the reasons I have given, he will feel able to withdraw his amendment.

[Lord Warner]

My Lords, I have listened carefully to what the Minister has said. I am not totally astounded to hear his remarks and I am grateful for the generous way in which he made them. However, I also listened carefully to other people in this House, in particular, the noble Baroness, Lady Barker. I certainly cannot see why the Government cannot move on Amendment 244. It does not pre-empt in any way their decision-making on the Law Commission, Dilnot or anything else they want to write about in terms of their White Paper in the spring.

The flavour of this debate is that we need to give some particular attention in this Bill to integration between health and social care. Requiring the Secretary of State specifically to deal with that issue in his annual report is a very good signal to be given to the outside world and, particularly, to the NHS. A number of people who have spoken today have suggested that that signal needs to be given.

I was not expecting to get a lot of progress on Dilnot but I want to come back briefly to subsection (1) of the new clause to be inserted in the Bill under Amendment 260DA. I feel strongly that we need a duty of this kind on the Secretary of State to balance the equation with the NHS. I shall take advice from a lot of people outside this House on whether we should come back to this issue on Report. At the moment, my instincts are that we will want to but I want to hear what people outside this House in the sector have to say. But I certainly reserve the right to come back on that issue, which I am happy to discuss with the noble Earl further if he wishes to do so. In the mean time, I beg leave to withdraw the amendment.

Amendment 244 withdrawn.

Amendment 245 not moved.

Clause 50 agreed.

Clauses 51 and 52 agreed.

Schedule 4 : Amendments of the National Health Service Act 2006

Amendments 245ZA to 245C not moved.

Amendment 246

Moved by

[Earl Howe]

246: Schedule 4, page 294, line 33, after “Board,” insert—
“(hb) a subsidiary of a company which is formed under that section and wholly owned by the Secretary of State,”

[Earl Howe]

My Lords, this set of amendments is predominantly made up of a series of minor government amendments to Schedules 4 and 5. Many of them make minor or technical changes to these schedules to correct errors, ensure the Bill’s provisions work as they are intended to do and make minor consequential amendments to the NHS Act 2006. They correct a couple of errors in cross-references and the placement of consequential repeal; add references to the Bill’s provisions on transfer schemes to Sections 216 and 220 of the NHS Act, which relate to the transfer of property held on trust by the NHS, such as charitable property; and remove a reference to Section 2 of the Local Democracy, Economic Development and Construction Act 2009, which is being repealed by the Localism Bill.

The amendments also amend the definition of “qualifying company” in Clause 294, so that under the Bill we will be able to transfer property to a subsidiary of a company wholly owned by the Secretary of State, not just to companies owned directly by the Secretary of State. They also amend Schedule 4 to allow such subsidiary companies to be members of the statutory risk-pooling schemes for meeting liabilities of NHS bodies.

This group also includes one other amendment on Schedule 5, tabled by my noble friend Lord Lucas. Amendment 254 amends the Freedom of Information Act 2007 so that the criminal offence of taking certain actions to prevent disclosure of information held by a public authority is expanded to include information held by service providers. I can reassure my noble friend that the Government are committed to extending the scope of the Freedom of Information Act to increase transparency. To do this effectively, we need to spend time properly considering the issues raised. It would not be appropriate to rush through changes that have not received proper scrutiny.

As part of this work, the Freedom of Information Act will be subject to post-legislative scrutiny and the Cabinet Office has recently concluded a public consultation on an open data strategy, which is aimed at establishing how we ensure a greater culture of openness and transparency in the delivery of public services. I understand that my noble friend has already met with officials to discuss his concerns around freedom of information and this Bill, which I hope reassured him. If he has additional concerns following this debate, I would be more than happy to write or to meet him to discuss this further. I hope that that will enable him not to press his amendment when we reach it.

I also hope that I have satisfied noble Lords that this set of government amendments should be made and that my noble friend will feel equally content.

[Baroness Thornton]

My Lords, I should like to ask one question and to make one remark. Even the Minister smiled when he used the words “openness” and “scrutiny”. Given our previous conversations about the information that the House has not received, I do not intend to rehearse that again but I would look at colleagues in the Liberal Democrat Party and say just how shocked and amazed I am by their lack of willingness to want proper openness and scrutiny on this Bill.

My question concerns the strategy risk-pooling schemes. I understand what those are, but I would like to know who the pooling would be shared with.

[Earl Howe]

My Lords, in order to give the noble Baroness a proper answer on that, if she will allow me, I will write a letter to her to explain how we envisage this working.

Amendment 246 agreed.

Amendments 247 and 248

Moved by

[Earl Howe]

247: Schedule 4, page 294, line 37, leave out “(ha)” and insert “(hb)”

248: Schedule 4, page 294, line 42, after “(ha)” insert “or (hb)”

Amendments 247 and 248 agreed.

Amendments 248A and 248B not moved.

Amendments 248C to 250

Moved by

[Earl Howe]

248C: Schedule 4, page 311, line 30, leave out “57 to 61” and insert “69 to 76”

248D: Schedule 4, page 312, line 8, at end insert “, and
( ) in sub-paragraph (5), omit “in its area””

248E: Schedule 4, page 312, line 25, leave out “62” and insert “77”

249: Schedule 4, page 316, line 3, at end insert—
“In section 216 (application of trust property: further provisions), in subsection (3), after “or 214” insert “of this Act or section 294 or 296 of the Health and Social Care Act 2011”.”

250: Schedule 4, page 316, line 21, at end insert—
“In section 220 (trust property previously held for general hospital purposes), in subsection (2), after “or 214” insert “of this Act or section 294 or 296 of the Health and Social Care Act 2011”.”

Amendments 248C to 250 agreed.

Amendments 251 to 253 not moved.

Schedule 4, as amended, agreed.

Schedule 5 : Part 1: amendments of other enactments

Amendments 253A and 253B

Moved by

[Earl Howe]

253A: Schedule 5, page 326, line 42, leave out “paragraphs 46 and 49” and insert “paragraph 46”

253B: Schedule 5, page 327, line 27, after “(1)” insert “—
(a) omit paragraph 49 of Schedule 2 to the National Health Service Reform and Health Care Professions Act 2002, and(b) ”

Amendments 253A and 253B agreed.

Amendment 254 not moved.

Amendments 255 and 256

Moved by

[Earl Howe]

255: Schedule 5, page 351, line 2, at beginning insert “In section 123 of”

256: Schedule 5, page 351, line 2, leave out from “2009” to “(partner” in line 18

Amendments 255 and 256 agreed.

Schedule 5, as amended, agreed.

Schedule 6 : Part 1: transitional provision

Amendment 256A not moved.

Schedule 6 agreed.

Clause 53 : Abolition of Health Protection Agency

Amendment 257 had been withdrawn from the Marshalled List.

Amendment 257ZA

Moved by

[Lord Warner]

257ZA: Clause 53, page 84, line 15, at end insert—
“( ) On the abolition of the Health Protection Agency, the Secretary of State will allocate their functions and any others he or she considers appropriate to an Executive Agency with its own chief executive as accounting officer with a management board with an independent chairman and at least three non-Executive Directors with expertise in its functions selected by the Department’s Chief Scientific Adviser.
( ) In allocating these functions the Secretary of State shall ensure that staff of the Executive Agency should have freedom to secure and discharge external research contracts.”

[Lord Warner]

My Lords, we come now to Clause 53 and the proposed abolition of the Health Protection Agency. I shall speak to Amendment 257ZA in this group, but in doing so I should make clear that I do not support the abolition of the Health Protection Agency, and I have every sympathy with the Front-Bench amendment that Clause 53 should not stand part of the Bill. I should not be unhappy if I lost my amendment because the clause itself was removed.

However, if the Government are going to proceed with this casual vandalism against an internationally respected organisation, I would hope that we could secure some damage limitation, which is what this amendment attempts to do. I will leave it to my co-signatories of this amendment, who have much more scientific and clinical expertise than me, to explain why we need to protect the independent scientific and research expertise of the Health Protection Agency in any new organisational form that there is for it.

As the Minister who helped to shape the Health Protection Agency in its present form by bringing together a wider range of scientists in one organisation, I want to put on record that it has acknowledged the importance of that and the improvement in the cross-fertilisation of ideas that has come about because we brought a wider range of scientists into the organisation.

I should also make clear that when confronted with crises involving areas of great public concern—I cite as examples the great concern in 2003 and 2004 about the growth in healthcare-acquired infections, and, later on, the Litvinenko affair and the concerns about polonium-210—the independent scientific advice from the arm’s-length Health Protection Agency was absolutely vital to giving the public confidence in how we were moving forward and dealing with those issues. It was the people from the Health Protection Agency, particularly during the Litvinenko affair, who were able to stand up in public and give scientific reassurance in that area. It is that independence of scientific expertise that I am very anxious we should preserve in the move to abolish the Health Protection Agency.

Amendment 257ZA would ensure that if the functions of the Health Protection Agency are to be transferred to the Secretary of State and the Department of Health, there should be a distinct executive agency with its own chief executive as accounting officer, and a management board with an independent chairman and at least three non-executives with expertise in its functions, selected by the department’s chief scientific adviser. The amendment would also ensure that staff had the freedom to secure and discharge external research contracts.

These changes will help to retain high calibre staff over time, and indeed the scientific reputation of what is currently the Health Protection Agency, in its new guise. I believe that they have the support of the staff of the HPA and reassure them about scientific independence and the ability to carry on seeking research contracts.

We need this reassurance in the Bill, not just warm words, however well intentioned the Minister is. I beg to move.

[Lord Turnberg]

My Lords, my name is also attached to Amendment 257ZA. I also do not like the idea that the HPA is to be abolished, so I hope my amendment is not necessary, which it will not be if the proposal that the clause should not stand part of the Bill is agreed.

I have, of course, extolled the virtues of the HPA on a number of occasions in your Lordships’ House. You could say that I would do that, wouldn’t I?, having been the chairman of the predecessor of the HPA, the Public Health Laboratory Service, but it is certainly true to say that it is the envy of the world, and I am not the only one who says that. The Centers for Disease Control and Prevention in Atlanta, in the United States, are a very well funded counterpart with which we collaborated very strongly, and even they recognised this excellence and envied the fact that we, unlike them, had a network of laboratories across the country primed and ready to detect outbreaks of infection wherever they occurred. Those laboratories were linked into a central laboratory at Colindale, where highly specialised tests could be carried out when needed for unusual infections and where epidemiologists could link up outbreaks in one area of the country with outbreaks in another, so that it was possible to track the speed and spread of infections and prevent them developing into epidemics.

The fact that the HPA is hardly ever in the news is testament to its success in protecting the population. If your Lordships think that because it is so good there is now less need for such surveillance, let me point to the fact that just one set of infections—those responsible for food poisoning—remain a considerable health hazard, and gives rise to about 1 million cases per annum in the UK. Although it is usually fairly mild and often not reported, some cases, such as those due to E. coli, can be very severe indeed, and in the particularly vulnerable can be fatal. Food poisoning is, unfortunately, not showing any signs of decreasing, so the need for constant vigilance is high and the role of the HPA remains absolutely vital.

The amendment sets out two of the planks needed for the agency to contribute to its key roles. The first is the degree of independence that it needs to be able to give advice not only to those out in the field who need to act but very specifically to the Secretary of State and the Government. The HPA must not be seen to be simply the mouthpiece of government. It must have the independence that is so necessary to its credibility. It has stood it in good stead over the years. Its advice is respected and accepted, and we should not lose that now.

The other element of the amendment is the need to be able to undertake research. If the agency is to keep ahead of ever-changing bacteria and viruses, which seem to mutate every week, and to be able to develop new ways of rapid detection, it needs access to research funds. For example, it has excellent high quality researchers, two of whom have recently been elected to the fellowship of the Academy of Medical Sciences, which is a demonstration of their esteem. Over the years it has been fortunate to have access to research funds from the Department of Health, and I understand that that will continue. That, of course, has been of enormous value, but the agency has also attracted research funds in fairly large amounts from external grant funders, and this is funding won in open competition. There is a fear that as an authority that is rather more closely identified with the Department of Health, access to those external funds will be denied to it.

The amendment makes the clear case that the agency must continue to have access to these funds in order for it to function at the highest level. I hope that the Minister will accept the case and look sympathetically at the amendment.

[Lord Patel]

My Lords, my name has been added to Amendment 257ZA and I have tabled Amendment 260 in my own name. I shall try to explain why I have added Amendment 260 to this group. There has been some advice to degroup it, and I have been tempted, but I have left it where it is. First, I agree absolutely with what my two friends, the noble Lords, Lord Warner and Lord Turnberg, have said in relation to independence in research and in the expert advice that Public Health England will be giving, and I shall support that by giving some details.

First, however, I shall refer to the funding issue. I do not understand why it has been suggested that Public Health England should not be allowed to bid for external research funding. I cannot see what the threat would be. I have no doubt that it was the Minister who suggested it, and maybe he was given advice, but I wonder why he was given it. I shall give some examples. The current running costs of the HPA covered by government funds are £145 million. On top of that, the agency receives some capital expenditure and depreciation funding. But the agency itself obtains another £150 million from external sources: funding for research and funding from the services of the HPA which are contracted to other agencies and sectors. These include laboratory services, and nuclear and chemical decontamination services. If I was running a university department and I got £150 million-worth of external funding, I would regard that as pretty good—in fact, as excellent. Most of our universities would struggle to get that kind of research funding.

Where does it come from? The largest source of external research funding comes from the National Institutes of Health in the United States for high containment work on infectious diseases. Both the noble Lord, Lord Turnberg, and I know from experience that to get a grant from the NIH is very tough. The agency also receives external research funding for vaccine evaluation, as well as from the recent licensing of one of HPA’s research-generated products by the Food and Drug Administration in the United States. The agency has a product called Erwinase that is used to treat childhood leukaemias, which clearly demonstrates the commercial benefit of its ongoing research and income-generating potential. That sets out the picture as far as research income is concerned, and I repeat that I do not understand why the agency should not be allowed to bid for it.

The second issue is that of publication. The agency must be independent enough to be able to publish evidence and offer expert advice on all topics in which it has expertise, regardless of government policy. For the public to have confidence in their public health agency, it must have the independence to publish. The Government may not take the advice they are given, but the agency must have the independence needed to be able to publish it, so again I cannot understand why it might not be allowed to do so. Nor can I understand why it cannot publish in any journal it wishes on any of its research or advice. To achieve all this, it is important that it has an independent board with an independently elected chairman. That is one of the crucial amendments I wish to see if we are going to go ahead with Public Health England as an executive agency of the department. That is also why I have tabled Amendment 260, which offers the belt and braces needed if, as the Government intend, Public Health England is established as an executive agency. If it is not given independence in terms of research, advice and its board, what we would then need to do is set up a non-departmental public body. That is the purpose of Amendment 260.

[Lord Walton of Detchant]

My Lords, I too support this amendment, although like the noble Lords, Lord Warner and Lord Turnberg, I would much prefer to see Clause 53 deleted from the Bill. Throughout my professional career I have been familiar with the expertise of the former Public Health Laboratory Service. It conducted research, carried out microbiological surveillance, protected the population of this country from epidemics and so on, looked after the safety of our water supplies, and indeed undertook a huge number of other activities. The noble Lord, Lord Turnberg, chaired that body with great ability and distinction.

I just do not understand the purpose of the Government in abolishing its successor, the Health Protection Agency, which has continued to follow that pattern and to supervise the work of laboratories across the country which were formerly part of the Public Health Laboratory Service. Again, it is difficult to understand what the purpose is of abolishing a body that has proved to be so effective, which continues to give excellent service and which, as other speakers have said, attracts external research funding. If it were to be absorbed into the Government under the Secretary of State, I believe that it would be less able to fulfil its functions and to carry out the distinguished research in which it has been involved over many years. For that reason, while I strongly support the proposal that Clause 53 should no longer stand part of the Bill, if—for the reasons that I hope can be explained by the noble Earl—the Government decide that that clause should remain, it is crucial that we have an amendment such as the one before us in order to preserve the activities of such a vital scientific institution.

[Baroness Finlay of Llandaff]

My Lords, I have added my name to Amendment 260, but I should like also to talk about the problem of abolishing the Health Protection Agency. I must declare an interest because at the moment my daughter is on a placement there and is most impressed by the work that she has seen. There will be a very specific problem for the Health Protection Agency if it is not completely independent, and that relates to Medical Research Council research funding. If the agency is part of the Department of Health, it will find it more difficult to secure MRC funding. That may also apply to Wellcome funding, but the problem will be particularly acute with regard to funding from the MRC, which is the highest rated funding that the agency can get.

Also, as has already been said, the agency is internationally renowned and recognised for the excellence of its work and looks set to bring in more work to the UK. It is now working with the World Health Organisation on disaster planning. In planning for new disasters that might take place, it is important that countries know what other countries are going to be doing. We have sea borders, but if there is a massive disaster in another country we cannot go to its assistance if we do not know how its systems work. The Health Protection Agency is the leading body in this work on behalf of the UK. It seems very short-sighted to do anything that would destabilise this organisation.

19:00

It has been suggested that it could be moved, possibly into universities. The difficulty is that the pressures of research evaluation within the university might mean that some of its research—which takes a very long-term view and may not deliver results in the very short term—would be subject to pressures that could undermine its independence. Its complete independence is essential if it is to be able to function to the standard that it currently does. It is also what you might call a very lean organisation, given that it has very high-quality research but also has people who are clinicians, who are partly involved in research and partly working out in the field; so it has some people with dual appointments, which means that they are very much planted in everyday work in the field. It has brought together people from a broad range of disciplines. It is rather interesting that the developing Francis Crick Institute is being based on the somewhat similar principle of bringing people with expert skills together under one roof to create an intellectual hothouse, to the benefit of research developments in this country. I hope the Government will think again, because they seem to be abolishing an agency and it is very difficult to see what is going to be gained by doing it.

[Baroness Masham of Ilton]

My Lords, I, too, would like to support what has been said about the HPA. It is so well thought of across the world, and infections spread across the world. Infections are getting much more complicated, with drug resistance, and we need the HPA more than ever. I ask the Minister one question: whatever happens to it, will it have an independent chairman?

[Baroness Cumberlege]

My Lords, I speak to Amendment 260, in the name of the noble Lord, Lord Patel. It is probably not the time to go around memory lane, but I want to draw on some experiences that I have had. I was the hapless Minister responsible for the Health Education Authority. Some people may remember the Health Education Authority. It was largely independent and its funding came through the department. I should not speak ill of the dead, but it really was a nightmare. One of my lasting memories of my modest ministerial career was when we had a Starred Question in this House, asking why government money and very scarce resources should be spent on a leaflet, produced by the Health Education Authority, entitled, I think, 69 Ways for Better Sex. It was the first that I or the department had ever heard of it. Perhaps one of the interesting things was the number of noble Lords who said they could not take part in the debate unless they had seen a copy of the leaflet.

The HEA went completely off the rails. It was only when we were reading or listening to the media that we found out what it was up to. In the end, it not only alienated the Department of Health and the Government, it alienated local health authorities, with their responsibilities for public health. It was they in the end who asked us to close it down. Well, we did. Listening to the current proposal for Public Health England to be an agency, I think that is a good idea, although I know it is very unpopular with the Faculty of Public Health and others. An executive agency, although not totally independent, will operate with a degree of autonomy from Ministers on a day-to-day basis. While not as independent perhaps as a health authority, it will be recognisable as an entity and have its own identity.

The only model that we have got in health of an executive agency is the MHRA. Its chairman, noble Lords will know, is Professor Sir Alasdair Breckenridge, who has been the chair since its inception. Sir Alasdair is a very strong individual and somebody people really respect highly. In the vernacular, he is the sort of person you do not mess with because you know you will not win; you do not even try because he is somebody with enormous integrity and presence, and runs a very good organisation. It seems a good idea to look at the MHRA model and see how it is organised. Sir Alasdair tells me that there are eight non-executives on the agency board, who form the majority and are the board. They have a very good chief executive who is a civil servant but the non-executives are not. They are drawn from right across the country with different experiences and, again, they are people of huge distinction who are very much respected.

Here is an example or model that actually works. It has been tried and tested, and is a model we could certainly adapt for Public Health England. However, I suggest to my noble friend that the important thing is to keep the public health constituency with us on this. It is important that it has a real involvement in choosing the chairman of this new agency. If it is involved, that will go someway to ensuring the agency will be a success. It should also be involved in the recruitment and appointment of the non-executive members. We have a highly credible organisation here that could be a very good model for Public Health England and I hope my noble friend will consider those points about the appointment of the chairman and the non-executives, and the formation of that board.

[Lord Warner]

I was the Minister responsible for the MHRA and very much share the noble Baroness’s views on this. There are some slight differences, one of which is that a lot of the funding for the MHRA, in effect, comes from the pharmaceutical industry, in terms of licence fees. However, I was well aware of the MHRA experience, and my own experience of it, in trying to craft Amendment 257ZA, which does bear some resemblance to that. I certainly would not argue with the idea that the number of non-executives under my amendment should be larger than three—it does say “at least three”. I will certainly go along with her that some outside expertise, in quite substantial numbers among the non-executives, is an extremely good model.

[Lord Beecham]

My Lords, I am tempted to open by invoking, if not the Health Protection Agency, then perhaps the protection of the local environmental health department, because conditions in this Chamber, at this temperature, are hardly conducive to anyone’s good health. However, that is a matter perhaps for the House authorities to look at.

I rise to express the view that Clause 53 should not stand part of this Bill and to support my noble friend Lord Warner’s Amendment 260. I do the latter on the basis that that would be a fallback position, because I entirely concur with the view expressed in particular by the noble Lords, Lord Turnberg, Lord Patel and Lord Walton, and the noble Baroness, Lady Finlay, who have of course such a distinguished history as leading clinicians in these and other medical fields. Part of the thrust of the argument is the need to maintain not only a functioning organisation which has, as we have heard, an international reputation, but also to ensure that any such organisation has the requisite degree of independence from Government—that is, the right and in fact the duty, as the noble Lord, Lord Turnberg, made clear, to advise the Secretary of State and the Government generally without fear or favour.

Amendment 260 would create an executive agency for the Health Protection Agency. It is arguable that executive agency status would not of itself lead to the required or desired degree of independence whereas perhaps a special health authority would conceivably achieve that. There is a difference of view from the Government about the status of a special health authority. Their preference for Public Health England is that it should be an executive agency. They argue that a special health authority would not be appropriate. They point to analogous situations of agencies created for the Medicines and Healthcare products Regulatory Agency and curiously, by way of analogy, the Met Office, as organisations which are deemed to have sufficient independent status, albeit operating as executive agencies of their respective departments.

Neither of those arguments can be sustained. The role of Public Health England is a much wider one than either of the two bodies to which their document published earlier this year refers. A regulatory agency is not the same as an organisation which has to advocate and oversee a wide range of services, such as Public Health England would be required to do, and the Met Office is hardly an organisation which is required to be independent of Government in preparing its weather forecast. The analogy is somewhat ludicrous.

There is also, of course, the very important point made by noble Lords about the need for independent status in order to attract some of the funding, both charitable and contractual, on which in particular the Health Protection Agency is critically dependent and which might be endangered by its absorption into Public Health England in a way which would make it clear that it is no longer independent. That is not to say that the creation of Public Health England in the form of a special health authority would not of itself be desirable. The bringing together of a range of functions under the auspices of Public Health England, although not, I would argue, the Health Protection Agency, would be welcome.

A number of professional bodies have commended the principle but clearly have reservations about how the new structure would work. The Association of Directors of Public Health, for example, makes it clear that Public Health England should include health protection and emergency planning, health improvement and health services in its main areas of work and, in addition, provide an independent science base and advice to the Government and the devolved Governments. One of the arguments against creating a special health authority was that it would not be able to deal with devolved Governments. I would have thought that that is something that the Government could deal with relatively easily.

The role of Public Health England should also support the national Commissioning Board and provide support for local directors of public health. However, the association expressed concerns about the role and status of directors of public health. We recently discussed some of those in Committee. It also had concerns about the input into the national Commissioning Board and the lines of accountability. We will have Public Health England, the clinical commissioning groups, the directors of public health and various other functioning arms of the National Health Service, and it is not clear how the relationship would work and, in particular, what the role of Public Health England would be. The association has argued strongly for consolidating public health capacity into Public Health England with overall responsibility for improvement, protection and promotion of health care, and for public health intelligence and analysis.

19:15

A number of questions arise in respect of the position of the Health Protection Agency. There is a need to maintain capacity within the service and particularly for robust arrangements for emergencies and for interim arrangements, pending the completion of the reorganisation. Perhaps the Minister, when replying, could indicate how far the department has been able to explore the issues of capacity and the position in relation to the provision of those emergency services. The point was also made that clarity is needed about responses to incidents at local, sub-regional and regional level. Again, perhaps the Minister could indicate how far discussions have gone and what proposals there are for ensuring that that response at the various levels indicated would be guaranteed by the new arrangements. There is also an issue about the role and responsibilities of the directors of public health and local health protection units. Again, perhaps the Minister, if she is not able to reply to that point tonight, could write to noble Lords about that.

A point was raised which I almost have to apologise for raising yet again, which is the position of second-tier authorities in connection with their responsibilities under the auspices of the Bill, and in particular their relationship with Public Health England. Concerns were also raised in a joint statement recently issued by the Local Government Association, the BMA, the Faculty of Public Health, the Association of Directors of Public Health, the NHS Confederation and even the Royal College of Midwives, a broad grouping, all of which have reservations, even though generally approving the thrust of the Government’s policy. In particular, the case was made for public health arrangements to be organised at the different levels, at the “supralocal level” as they call it—that is to say, a conurbation area rather than just the individual local authority area—and at a subnational level. They supported an integrated model in which large local authorities might host subnational functions on behalf of Public Health England; in London, for example, where there is an elected mayor, or in Greater Manchester, where there is a combined authority, and perhaps other cases where authorities could come together. Again, it would be interesting to learn whether the department sees that as a potential way forward.

There is another serious range of issues around public health observatories, which have suffered a significant loss of capacity, according to the Select Committee’s report. It would appear that 40 per cent of their staff are on fixed-term or temporary contracts and are unlikely to be retained. That is a very significant reduction in staffing of the public health observatories. It appears that 45 per cent of the capacity is likely to be lost by 2012. There is particular concern about the regional aspect of public health observatories. On a previous occasion I invited the noble Earl, Lord Howe, to indicate whether the future of the observatory in the north-east was secure, and I seem to recall that he thought that it was. Again, it would be helpful if we could hear what the Government’s view is of the position of the public health observatories, which are an important ingredient in the provision of public health. In this context, the King’s Fund pointed to the risks of the reorganisation creating a less effective local public intelligence network and significantly higher costs to directors of public health.

There is another organisation that has been identified as one that has uncertainties about its future: the United Kingdom Association of Cancer Registries, an organisation for cancer intelligence that, again, agrees in principle with the proposals. Its director, noting that the organisation’s future would lie with Public Health England, said when he was giving evidence that he did not know yet what the structures would be and that there was uncertainty leading to the risk of losing skilled staff. It is interesting that the word “risk” crops up on the day when we have discussed risk registers. Perhaps in the fullness of time we might learn whether or not that particular risk is one of those identified in the registers which we spent an hour debating today.

The Select Committee, again broadly approving the thrust of government policy, expressed its concern in terms that I referred to in the previous debate, saying:

“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 … 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 a clear structure of regional accountability”.

I hope that the Minister will be able to indicate what kind of accountability and regional structures it is envisaged should be implemented.

In summary, the preference of the Opposition would be to see the Health Protection Agency preserved with independent status and to see Public Health England created as a special health authority, guaranteeing, at least to a degree, its independence, which cannot be guaranteed when, in the words of the Minister in the other place, it is simply another form of embodiment of the Secretary of State. For these reasons, the Opposition support the amendments. I will not be asking the House to divide now but this is a matter to which, in the absence of a positive response, we may well have to return on Report.

[Baroness Northover]

My Lords, the noble Lord, Lord Warner, is right about the international status of the HPA. In many ways, the proposals for Public Health England take its development a step further by building on its successes and bringing other organisations into the new Public Health England. Independence of scientific expertise, as he and other noble Lords have said, is indeed crucial. The noble Lord, Lord Turnberg, is right that the HPA has an outstanding international reputation, and the intention is to build upon that. I am glad that the noble Lord, Lord Beecham, welcomes at least some of these proposals, even if he is concerned in other areas.

When we discussed the provisions in Clause 8 that set out the Secretary of State’s health protection functions, we touched on Public Health England and the abolition of the Health Protection Agency. Public Health England will be the national component of the new public health system and will be established as an executive agency as part of the Department of Health. It will bring together activity currently spread across a range of bodies, including the Health Protection Agency, into a new unified body directly accountable to the Secretary of State. It is important to emphasise that the agency is just one component of a system that is currently fragmented, opaque and spread across central government, local government, the NHS and other arm’s-length bodies such as the Food Standards Agency and the National Treatment Agency. We want to replace all that with a clearly defined and much more unified system for protecting and improving the nation’s health. Public Health England will be able to build on the recognised expertise within our public health system from a range of organisations.

We understand that there have been some concerns about the status of Public Health England. I hope that I can reassure noble Lords that further amendments in this area are not necessary; I hear what they say about those concerns but I hope that we can address them. As an executive agency, Public Health England will have a distinct identity and a chief executive with clear accountability for carrying out its functions. Its status will underline its responsibility for offering scientifically rigorous and impartial advice. As we design Public Health England, we will work closely with stakeholders to ensure that it offers support for directors of public health and their partners in the local system. We talked more about the local side of that the other day.

Many noble Lords have expressed concerns about the independence of Public Health England and the need to ensure that it has appropriate corporate governance. We have listened to what people have said. I can say for the first time that we can commit today that the chief executive of Public Health England will chair a board. This will include at least three non-executive members who will provide independent advice and support. We expect the non-executive members to have relevant experience in the public health field, local government or the voluntary and community or private sector in order to provide a broad range of experience and challenge and advise on how the organisation can maximise its income generation abilities. In addition, we will be looking to one of these non-executive directors to have the necessary skills to chair Public Health England’s audit and risk committee, which will provide assurance on risk management, governance and internal control for Public Health England.

[Lord Turnberg]

Am I correct in hearing that the chairman will be the chief executive appointed by the Secretary of State?

[Baroness Northover]

It is proposed that the chief executive, who will be appointed in an open competition, will chair the board. Does that answer the noble Lord’s question? No.

[Baroness Cumberlege]

My Lords, that is great opportunity lost. If we are going to have an executive agency on the lines of the MHRA, that organisation has an independent chairman, not a civil servant. What we really want is an independent chairman. The majority on the NHS Commissioning Board are non-executives. I am very grateful to the Government for going some way, but a little stride further would be very welcome.

[Lord Patel]

I agree with the noble Baroness, Lady Cumberlege. Why does the Minister not think that there needs to be an independent chair?

19:30

[Baroness Northover]

I thought that noble Lords would be delighted to hear my announcement, but I hear that they are less than thrilled. I will take that back and consider carefully what my noble friend has said about striding further forward, and see how best people’s concerns can be addressed.

My noble friend Lady Cumberlege asked whether the public health community would be involved in selecting the chair and non-execs of Public Health England. We will give very serious consideration to how the chief executive and the non-executive directors are appointed although in the case of the chief executive the final decision must of course be with the Secretary of State.

Some noble Lords have suggested that a special health authority model might be appropriate and Amendment 260 would have that effect. The key issue here, as the noble Lord, Lord Beecham, correctly identified, is that Public Health England will exercise functions that are wider than just the health service in England. In particular, Public Health England will have UK-wide responsibilities. I heard what he said about believing the devolved Administrations could somehow or other be sorted out but I am not so certain. Public Health England will have responsibilities for highly specialised health protection functions such as radiation protection and will therefore need an organisational form that can operate across the whole of the United Kingdom, and a special health authority is normally established in relation to England only. It cannot be established under secondary legislation to exercise UK-wide functions that relate to reserved matters or in relation to functions in England that do not relate to the health service—that obviously would be a challenge.

On the points raised about Amendment 257ZA, I hope I can reassure noble Lords that the chief executive of Public Health England would be appointed through an open and fair competition and would be solely responsible for its day-to-day operation. Ministers will agree the business objectives for Public Health England and the chief executive will be responsible for putting in place the management structure and using the budget appropriately to deliver these. This operational freedom will be supported by a framework agreement between the Department of Health and Public Health England which will set out the roles and responsibilities of both organisations.

During an earlier debate the noble Lord, Lord Turnberg, raised the question—it has been raised again today particularly by the noble Lord, Lord Patel—about the ability of Public Health England to receive research grants. Public Health England will be able to receive research funding from most, if not all, of the sources from which the Health Protection Agency currently receives research income. In the light of the concerns that the noble Lord, Lord Turnberg, flagged up last time, I asked for an analysis of where the HPA currently got its research funding from, in terms of proportions, organisations, amounts and so on. I then asked what would happen in each case. I was reassured to see exactly how Public Health England would be eligible, right across the board it seemed to me, for the kind of grants that currently exist. I am very happy to discuss this further with the noble Lord if he wishes.

In particular, there was concern about what money could be received from the EU and it is very clear that, in terms of the funding rules on intergovernmental organisations such as the EU, the executive agency would no doubt work in conjunction with an academic or analogous institution, as is the case now, to apply for that kind of funding. I appreciate noble Lords’ concern about that and how important it is that this is got right. I therefore hope that they will have a really good look at how this would carry across.

Clearly it is extremely important for Public Health England to have scientists who are not only independent but also able to publish—it is important for their own future careers as well as the work they are doing within Public Health England—and to continue to be able to publish. Public Health England would have a very important role in filling evidence gaps and building on the evidence base to improve and protect public health. That is a critical part of what it would be doing, so that would continue. I am not quite sure where the noble Lord, Lord Patel, got some of his concerns from but he is right to probe and to make sure that this is going to work in the future.

[Lord Warner]

I am slightly bemused by what the noble Baroness has said on research. I would certainly like to know in writing, rather than poring through Department of Health files, what the risk assessment is of Public Health England losing research grants out of the total of £150 million that the noble Lord, Lord Patel, mentioned and in particular, whether it is at risk of losing the MRC grants that the noble Baroness, Lady Finlay, mentioned. We need something clear in writing and not just vague assurances. We also need some guarantees from the Minister about the right of people who are doing research in Public Health England to publish peer-reviewed articles without any censorship from the Department of Health and Ministers.

[Baroness Northover]

I am sorry if I am being at all opaque. As noble Lords have said, the HPA generates income and conducts research which it is in effect selling out. There is some commercially sensitive information in what I have here: I am sure that we can clarify it but I am a little bit concerned not to say something that is commercially sensitive. As I said, I looked all the way through here and have seen organisations such as the Wellcome Trust. In fact, I have just been passed a note with large writing saying, “A lot of this information is commercially sensitive but we will write saying what we can”.

[Lord Warner]

I do not wish to have any commercial-in-confidence information and I am sure my friends do not either. We want to know what is at risk out of the £150 million the Health Protection Agency is getting now under the new arrangements. If you can guarantee, in writing, that Public Health England is not at risk of losing any of that money I think we will be much more confident. We do not want the details of the commercially sensitive stuff we just want the global figure and the assurances of what it is at risk of losing.

[Baroness Finlay of Llandaff]

Can we also have the assurance that it will be eligible in the future to apply for a broad range of funding even if currently it does not hold a grant from a particular grant-giving body? I think that that applies to the MRC.

[Baroness Northover]

I hope the cameras are not shining down on this piece of paper of mine so I can try to give you some of the information that may be less commercially sensitive: there are organisations such as the Wellcome Trust and Research Councils UK. Noble Lords should be very reassured as to how this will work, but as a very junior Minister I have to be extremely careful.

The noble Lord, Lord Turnberg, flagged this up, I took it back and asked for a breakdown of the funding the Health Protection Agency gets. I asked in every instance what would happen in the future and I have a comprehensive answer because I thought it was extremely important. I hope noble Lords will be reassured both by my probing and these answers, even if I dare not reveal them all. I hope we can therefore write and reassure noble Lords that those working for Public Health England will indeed have access to the same kind of grants that they have at the moment.

Amendments 257A and 257B are minor and technical government amendments to Clause 54. These amendments would allow the Secretary of State or the Northern Ireland department acting alone to exercise functions in relation to biological substances for the whole of the United Kingdom. I was asked about sub-national structures. Indeed, Public Health England will have hubs. The precise details of these arrangements will be published shortly. As stated in Healthy Lives, Healthy People, we will provide further detail on the operating model for Public Health England.

I was also asked about emergencies. As I mentioned on the previous occasion when we debated public health, Public Health England will act on behalf of the Secretary of State as a category 1 responder. It will also be able to offer support or leadership in dealing with local incidents short of a full-blown emergency.

Reference was made to one or two other areas. If noble Lords will forgive me, I will write to them to sweep up what needs to be covered. I hope that noble Lords are reassured by what I have said. It is extremely important to the Government and to both Ministers in the Lords concerned with this matter that Public Health England is very strong and has the necessary independence. As the noble Lord, Lord Turnberg, put it, it should not be the mouthpiece of the Government. It needs to be able to conduct expert research. I hope that I have reassured noble Lords who have raised these very important points that all this is built into the Bill, and that the noble Lord will withdraw the amendment.

[Lord Warner]

My Lords, my reaction is, “C+: Must work harder”. The noble Baroness has given some reassurances but they are certainly not sufficient. She should have a lengthy chat with her noble friend Lady Cumberlege on the MHRA. I would be happy to join them as it is an interesting model and has a lot to offer. The noble Baroness, Lady Northover, may remember the Cadbury inquiry’s report on the governance of companies in which it advised that there should be a separate chairman and chief executive. Therefore, the principle of promoting good governance through having a separate chairman and chief executive is well established in both the public and the private sector. She might think about that a bit more.

I do not know about other noble Lords but I was not swept off my feet by the assurances on research. We would like some good assurances in writing, particularly with regard to the ability of the new body to compete for MRC research funds. I continue to have concerns about the ability of any body in this position to publish peer-reviewed articles and findings from research that are uncensored. The road to hell is paved with good intentions. Once a body is inside the Civil Service code, the ability to publish independent utterances and research tends to become a bit more circumscribed. Therefore, we want further assurances in that regard.

I will want to discuss with my colleagues whether we will come back to this issue on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 257ZA withdrawn.

Clause 53 agreed.

Schedule 7 agreed.

Clause 54 : Functions in relation to biological substances

Amendments 257A and 257B

Moved by

[Earl Howe]

257A: Clause 54, page 85, line 2, at end insert—
“( ) Any function conferred on the appropriate authority by this section may be performed by either the Secretary of State or the Department of Health, Social Services and Public Safety in Northern Ireland acting alone or both of them acting jointly (and references in this section to the appropriate authority are to be construed accordingly).”

257B: Clause 54, page 85, leave out lines 4 to 6

Amendments 257A and 257B agreed.

Clause 54, as amended, agreed.

Clauses 55 to 57 agreed.

House resumed. Committee to begin again not before 8.45 pm.

Arrangement of Business

Wednesday 7th December 2011 Lords Chamber

Announcement

19:45

[Earl Attlee]

My Lords, before we start the Question for Short Debate, I am pleased to announce that due to changes in the speakers list, we now have six minutes per Back-Bench speaker.

Teaching School-Age Sport

Wednesday 7th December 2011 Lords Chamber

Question for Short Debate

19:45

Asked By

[Lord Addington]

To ask Her Majesty’s Government what proposals they have to ensure that the quality of teaching of school-age sport increases the levels of participation in sport in later life.

[Lord Addington]

My Lords, I thank everybody who has found time in their schedules to speak in this debate. I pass on the apologies of my noble friend Lord Storey, who is unable to join us due to an illness in his family. I hope that he will catch up next time round.

When I tabled this Question a long time ago, I used the words “school-age sport” because I am rather wary of talking exclusively about school sport as it has never encompassed everything that is required in the education of sportsmen, particularly at amateur level. Indeed, most of my speech concerns amateur sportsmen. We have never had a system within schools that has reached out to everybody and provided them with a basis for the rest of their sporting life. When you are considering embarking on the next stage of your sporting career, you usually have to join a club at some point, certainly if you are an enthusiastic amateur. One of the great fault-lines in our sports participation is the high drop-out rates at the ages of 16, 18 and 21. At those ages our education process changes and work can intervene. We should aim to achieve a balance whereby people continue their participation in sport throughout their lives, or at least make a lasting commitment to it. If one is a very fit and healthy 16 year-old but becomes an unhealthy, paunchy 30 year-old, what was the point of bothering to be fit and healthy at 16? Although the picture of a trophy that you won at an under-15s event which hangs on your wall may help to incentivise you, exercise should be treated as the wonder drug in terms of gaining health benefits from sport. The Health and Social Care Bill should be ringing in our ears in that respect. If you are fit and healthy, virtually everything else that you do will become easier. Your school reports will announce that you are studying better. You are also better able to interact and less liable to catch some of the more debilitating diseases. Obesity will rarely be a part of your life.

What I am trying to get at is how we encourage sports participation throughout life. Schools alone have never achieved this. In the past few years many initiatives have come forward, many from government, on what we should try to do to integrate the state and the private sectors in this regard. There was a great deal of consensus on how you should reach out to both sectors, certainly until fairly recently. I have complained at times that there were so many initiatives on the part of various sports that you felt that the same kids were turning up to the same events and swapping tennis rackets for rugby balls, cricket bats or footballs, with a couple of other smaller sports thrown in. The same people tended to turn up for the different sports, but that was possibly a personal impression. I have asked my next question before, but have we ever established which of those schemes was the best in retaining participation in sport through to adulthood? That is the real test. I do not think that we have found that out. Once we have established that, we can build on it. To go back to the amateur sports clubs, something like 22 per cent of our volunteers are involved in them and 2 million people take part in them. They are the big society writ large. In this country that sector is largely self-generating and self-funding. We have a tradition of owning our own sports clubs as regards some of our major sports. That is not the case for all sports but it is for many of them. The funding is provided by the individuals taking part in the various sports and by activities such as running a bar. They have taken on a huge amount of sporting activity which, in other nations, is provided by the state at local government level. These people should be supported, and the main way we can do this is to make sure they have a steady supply of recruits.

When I tried to plan what I was going to say, I used the phrase “elephant in the room” about the School Sports Partnership, something which has led to a degree of controversy in sport which those of us who looked at it a few months ago were not used to. Ofsted praises the project very highly. I have not heard too much against it, but since its demise I have heard some people say “The one I met was not that great”. Its objective was to make links between club and sport and to make use of the expertise and enthusiasm of the club, an environment you are in because you actually love the sport—or at least like it. I do not care what you call the scheme or how you do it, it is the enthusiasm that is the important bit. In times of austerity, it might look like something that was ripe for the picking—particularly to someone who was not tuned into this process.

What have we learnt from this process? What is the best way to achieve our aims? The particular individual scheme does not matter, in the end, nor does its name. What matters is how we take the benefit that was created in the good examples and go on with them. We can talk long and hard about what we actually think should be in this process of transferring from school-age sport to adult sport but we can be absolutely sure that, unless we have input from the top down that encourages this, we will miss out on a lot of youngsters who want to get involved. The social benefits—the value of the company of adults who are not your parents but who are interested in you and supportive—cannot be underestimated.

Some parents become a taxi service that runs the child everywhere to get on with their sporting life—the ones who say, “If it is summer it must be cricket”, or “If it is winter it must be football”, and “Oh, we have basketball in between”; I quote one of my neighbours as he helped me change a tyre the other day. We need to reach the group that do not have that support, or at least make it easier for them to access it. If we can do this then we are achieving and expanding our base in one of the most valuable community activities we have.

The world will not change if local team X manages to get a couple more trophies. It will change if we can encourage people to take part in that sport, right down to the third team. If we can encourage people who do not play at the highest level to take part—even if it is just a social activity—we are achieving most of our aims: the regular exercise, the social interaction, the bonding that goes on. If we can encourage people to come into that process early enough we can build on it and do what we can with it.

The political class has put a great deal of effort into encouraging this. We will be making a mistake if we allow doctrinaire activity to get in the way of school-age participation. I have heard quite a lot of worrying things from the Government about the importance of competitive sport. I do not know what uncompetitive sport is: exercise and training? I promised, a while ago, not to use the example of the football match in the film “Kes” again, but I am coming back to it. Those who are familiar with it will remember bored, cold people kicking each other and the ball, half of them not taking part at all. For too many, that is the experience of sport. If, in order to have a competitive match you go down to lower ability groups who are not interested and not tuned in, you can go back to that kind of situation. I hope the Minister can tell me that the importance of good education and connections with outside sporting bodies will be given priority; and that, although we want people to be involved in sport, we will not sacrifice the chance of an enjoyable experience for the sake of simply saying, “You are competing”.

19:56

[Baroness Heyhoe Flint]

My Lords, within the understanding and appreciation of the debate proposed by my noble friend Lord Addington, who I thank greatly, there has to be a key assumption that the quality and quantity of teaching of school-age sport is such that both factors are perfect: in other words, enough weekly hours of sports tuition and of a high enough standard to enthuse youngsters at school so that they wish to continue with such activities when they leave full-time education.

Let us look on the bright side and assume that both these key factors of school sport—quality and quantity—are answered in the positive. Both the current Government and the previous Administration have made efforts to increase the hours devoted to school sport and to improve the qualifications of the tutors and coaches in schools. Even in these difficult economic times, it is therefore very good news that the Department for Education announced £65 million of funding for school years 2011 to 2013 to release secondary school physical education teachers to organise competitive sports and train primary school teachers. Additionally, Sport England announced £35.5 million of lottery funding up to 2014-15 to support the new school games initiative inspired by the values and profile of the soon to be upon us 2012 Olympic and Paralympics.

Common sense decrees that if school sport is an enjoyable and uplifting experience, and if the encouragement is there from the PE staff, youngsters may wish to seek similar happy sporting experiences when they leave school. However, there are many negatives looming that can be erased only by a higher level of investment, and therein lies a drawback—a lack of facilities and organisers for casual sport and recreation and lack of ability to unlock the doors of sports venues in community schools to enable community sport and recreation activities to take place. Just drive around your own city, town or village and observe how many facilities are barred and shuttered after school hours. How many amateur sports clubs have expired through lack of funding to enable them regularly to hire costly indoor sports arenas or artificial turf pitches and the use of floodlights, which help when it is dark? The desire to take up sport after leaving school may be thwarted by lack of local organisations.

However, all is not doom and gloom. Data from the Taking Part survey—a national survey of culture and sport by the DCMS—show that a higher number of adults who currently play sport definitely played sport while at school. Perhaps I could indulge in an initiative promoted and actioned by the England and Wales Cricket Board, again, and show how a governing body of sport—and there are 320 such organisations recognised in the UK—can grasp the nettle and mirror the ECB, which has invested focused resources into increasing participation and growth in the adult game through its adult participation strategy as part of its Whole Sport Plan programme.

Cricket has established strong links between school sport and the club game through the Chance to Shine programme. Chance to Shine is a charity that aims to establish by 2015 regular coaching and competitive cricket opportunities to 5,200 primary schools and 1,500 secondary schools. Last year, more than 1 million boys and girls took part in the schools cricket programme —44 per cent were girls, I am pleased to say—but the most heartening factor, which is perfectly in tune with the theme of this debate, is that more than 29,000 children, 30 per cent of whom were girls, migrated from Chance to Shine schools to local clubs, thus demonstrating the success of the programme in getting more people to play sport once they leave school.

This is just a small case study that shows how the responsibility and drive of just one national governing body has solved a funding problem by working with partners to introduce more opportunities to schools and colleges to reduce barriers, such as extra time commitments and travel, in order to support the retention of young people in sport at the traditional drop-off age of 16. The ECB has also put increased resources into volunteering in sport, which means that young people can be organised, coached and umpired by their peers—not by us noble Lords, I hasten to add—rather than by teachers, who may not have the time or facilities to hand to be of value. Through the adult participation strategy, the ECB is ensuring that cricket is delivered to the 16-plus age group as a continuation of its previous involvement. The ECB is also increasing its investment in colleges of further education and universities.

Maintaining participation in sport, once youngsters leave school, is the biggest challenge facing policy-makers, and we all know the inherent benefits of a fit and healthy nation. Looking to London 2012, the DCMS has developed programmes for school leavers to embrace sporting activities—in particular in Places People Play, which is a £135 million initiative that is being delivered by Sport England in partnership with the BOA and the British Paralympic Association.

Government must continue to take up the responsibility of helping to provide the sporting pathway for school leavers to journey into an adult sporting environment and at least help to provide the opportunity and facilities. After all, you can take a horse to water, but unless that trough is filled, the poor old horse will go very thirsty.

20:02

[Baroness Howells of St Davids]

My Lords, I, too, thank the noble Lord, Lord Addington, for raising this debate. His opening speech and that of the noble Baroness, Lady Heyhoe Flint, were enlightening. What I am about to say about the merits of sport in schools will take a different turn.

On Monday night, I attended an awards evening hosted by Tessa Sanderson’s foundation. Tessa is a gold medallist. The foundation, in collaboration with Newham College, seeks out talent, trains and gives much support to those who, because of poverty or ill health, may have missed the opportunity to get involved in sport. Many recipients of the awards paid tribute to the help that they received and talked of how their lives had been turned around. Most of the audience were so moved that there was hardly a dry eye in the room.

One awardee, sitting in his wheelchair, told his story. He left his school at 16 after the break-up of his parents’ marriage. He got into drugs, gangs, stealing and so on, and became a “no-good person”—those are his words—until one night, he decided to steal a motorbike, which he drove into a wall. He broke his back and lay in a hospital bed for some considerable time, contemplating suicide. He said he blamed no one, and said that it was his fault and that he needed no sympathy. That was until his mentor came into his life. His mentor introduced him to sport and he has been the recipient of many medals. He is hoping to go for gold in the 2012 Olympic Games. His mentor says that he has a good chance of raising the union jack with pride. His one regret is that he was not introduced to the buzz of sport during his school days. He is now financially secure, enjoying life and would like to influence others.

For most young British black males, sport of one sort or another has been the only means of upward mobility. The have used their talents across as many athletic fields as they have been exposed to. There are too many names to list them here, but noble Lords will have heard those names, Saturday after Saturday. I ask the Minister to consider new ways to improve the quality of teaching sport in schools.

I should also like to introduce the Minister to a programme that I have been involved with through my trusteeship of the Windward Islands Research and Education Foundation. With the enormous support of St George’s University, we launched in 2010 a programme called “Sport for Health” in the primary schools on the island of Grenada. In one year, this project has taken off so well that we are hoping for a gold medal in 2012. The prospective gold medallist is a champion for the project. Also, many footballers of Caribbean origin are working with us. Our patron is Garth Crooks, and he is very much a working patron.

There is considerable evidence of the adverse effects of non-communicable disorders on the quality of life. Those disorders should not be an inevitable burden on society, given that it would cost so little to attach sport to school programmes on healthy diets. Already, those pupils in Grenada are using sport to reduce obesity and other non-communicable diseases. Let us shift the paradigm through healthy eating—which we already encourage in schools—and add sport for health. There is no disgrace in dying healthily. Let us go for gold in our schools.

20:07

[Baroness Grey-Thompson]

My Lords, I thank the noble Lord, Lord Addington, for raising this debate and asking some very important questions about what it is that works in sport so that we can improve on it.

It is incredibly important to think about school sport at this time while we all become obsessed with the Olympics and Paralympics. With 233 days until the start of the Olympics and 266 until the Paralympics, we have a unique chance to inspire people to be healthier. I admit to having mixed views on attaching participation rates to the Games. I do not believe that this is the right way to measure the success of the Games, but we have no better time to target people.

I declare interests as a board member of UK Athletics and the London Marathon, as a trustee of Laureus Sport for Good Foundation, and as chair of the Commission on the Future of Women's Sport. As a Paralympian, although I have a background in competitive sport, these days I am learning a lot more about participation, which just means that I get slower every year. However, I am passionate about what school sport can encourage, and not just because I was successful. Actually, I was not that great as a child. I spent a long time doing physical activity before I became good at sport, and I had the opportunity to be okay for a long time.

In sport we need role models, whether they are the gold medal-winning athlete or an amazing PE teacher. Like others in your Lordships' House, I do not believe that what we have is right. Perhaps instead of asking questions, I shall make some suggestions for change. Girls leave school half as likely as boys to meet recommended activity levels. Competitive sport is great for some people. I loved it. It works for sporty girls, but it is important not to forget the rest. Girls are missing out on the health and personal development benefits that participating in sport can bring.

Head teachers and governors should be doing all that they can, and in my opinion a lot more, to ensure that PE and sport is provided in such a way that girls find engaging and establish healthy activities and habits for the rest of their lives. If I could wave a magic wand and be just a little radical, I would extend the school day and have PE every single day of the week, to encourage that habit. It would not be something that girls did twice a week; they would do it five days a week. The schools that give more choice on the type of activities in which girls become involved, and where PE teachers pay attention not just to the talented girls, will achieve far higher participation rates.

So, for once, I am asking the Government not for more money for this area but to encourage schools to do more and be more creative, because 80 per cent of women do not currently do enough exercise to be healthy. I do not forget that parents have a role to play in their children's lives and I do not want to negate their responsibility, but it is a challenge for some parents. If you are a mum around my age, you probably had a fairly miserable time in PE in schools. You will have been sent out on cross-country runs and to play hockey wearing gym knickers and not allowed to wear gloves. I speak to so many women whose expression, when I mention sport to them, just turns cold. Because their experience is negative, they do not understand some of the benefits that they can pass on to their children by encouraging them to do sport.

I also understand that sports development is really hard. I did it as a job for two years—my first job on graduation. I understand that that cultural change will not happen on its own. British sport will be better for more girls taking part at school. As the noble Lord, Lord Addington, said, I do not really mind what it is called, but we have to do something to encourage change. If more girls do sport in school, more will carry on afterwards, more will get involved in coaching, volunteering and administration. If the Government want to change representation of women at all levels of society, what better place to start than school sport?

Journalist Liz Jones wrote recently what I would describe as an “interesting article” about women in sport. She was right in some aspects, saying that some girls do not like competitive sport, but we should not throw the baby out with the bath-water. I disagree with her comments about women with sinewy arms not looking attractive and that they should not be involved in competitive sport. I prefer to think about a woman looking strong. We have to encourage girls and women to think differently about what is attractive and what being a strong woman really means for them. In January next year, the Women's Sports and Fitness Foundation is releasing a report on girls’ attitudes to sport and physical activity, and I think that this will provide valuable insight into how we can make improvements. I will take the liberty of personally delivering it into every noble Lord’s pigeon hole.

Having travelled around the world with the Sport for Good Foundation, I have seen some amazing examples of good practice—projects that have recognised how hard it is to engage girls, and so have worked with their mums. I would love more of this. What better way to encourage daughters and mums than to do sport together?

Just this afternoon, I visited a wonderful school: Highbury Grove in Islington. Yes, it is on a new site, which has the most amazing sports facilities. It has a 200 metre track; it has a swimming pool; it is absolutely stunning. Through sport and music the school has turned around attendance and improved academic grades. Credit should be given to the head and the staff, who see the importance of physical activity. They also work with the local community. Like the noble Baroness, Lady Heyhoe Flint, my plea is for more of that. School sites that are open to a wider community can help change the patterns of participation.

My second favourite topic around school sport is young disabled people being active. There is so much more to do in this area, and I know of many positive changes through Sport England and the other home country sports councils. I do not see enough disabled people being active enough, whether at school or beyond. I am pleased that there have been some positive moves in the direction of more clearly being able to measure participation of disabled people—it is a real challenge. So many reasons are given for the barriers to participation, but I have never believed that something being a challenge is a reason to not try.

This is where schools can make a massive difference to young disabled people, because, if we want a more inclusive society, what better way to do it than through sport? It is even more important that disabled children, very young children, are encouraged to play and be active, because those benefits carry on for the rest of their lives. I also believe that, if we have more disabled people active, that contributes to wider government targets of helping to get more disabled people into work. What I would love to see in this area is better teacher training so that there is far greater understanding of adaptive PE. Where I probably am very radical is that I think we need specialist PE teaching at primary level. I know that there is a cost to that, but I would love general teachers at primary level to have much greater understanding of working with everybody in their class. Finally, teachers need to understand what talent is in disabled pupils so that they encourage and give realistic goals, not tell them they are brilliant just because they are disabled and are having a go. There is a big difference between participation and elite sport.

I do not believe that it is all doom and gloom, but neither do I think that we have it right. If this were a school report, it would read “Could do better”, and our young people deserve much better than the provision they currently receive.

20:14

[Lord Smith of Finsbury]

My Lords, it is a privilege to follow the noble Baroness, Lady Grey-Thompson, and a pleasure to be taking part in this very short but important debate. I thank the noble Lord, Lord Addington, for tabling the subject. I want to make three brief points about why school-age sport—that means sport in schools, sports associated with schools but outside school hours and sport completely separate from school—is so important. It is important because it can and should be preparation for sporting endeavour and even sporting excellence in later life. The quality of the teaching, of the facilities and of the enthusiasm that is communicated to youngsters at school are crucial in helping the transfer from school age to later life. It can be life-changing. I know that because I first found informal sport—through hillwalking and mountaineering—at school. It became a very important part of my life subsequently. As an aside, I say that I hope very strongly that we can rediscover a spirit of adventure for young people, the ability to take risks in engaging in informal recreation in the outdoors, because we have lost a lot of that in recent years and we need to find it again.

In both informal and formal sport, sport at a young age can lead to riches later in life. Secondly, sport can enhance the educational original experience and overall quality of a school. Sports, both competitive and non-competitive, can make a huge contribution to the atmosphere and culture of a school and the ability of pupils to engage with academic subjects, as well as with their sport. That is why, when I was Secretary of State at DCMS, I encouraged Sport England to come forward with a substantial programme of funding for school sports co-ordinators. That is why we endeavoured, with a modest degree of success, to prevent the selling off of school playing fields. It is why the school partnership programme was a valuable attempt to link the enthusiasm of sporting clubs and societies with the engagement of pupils in schools. These things are not just important for sport; they are so important for the quality of the education as a whole that pupils receive.

My third point links a little to what the noble Baroness, Lady Howells, said. We do not need to read the recent report, Reading the Riots, about what happened back in the summer to understand why some young people get into trouble, hang about on street corners, join gangs and smash windows. It is not just because of poverty of circumstance—housing, environment and upbringing. It is because of all those things and more, but often it is because of poverty of aspiration. The starting point for any process of regeneration, either physical or social, has to be giving young people a chance to find self-esteem, to find something that they can be proud of themselves for having done, something to give them a sense of real achievement. Sports can give them that.

I would say the same about music, drama, dance and the arts in general as well, but the chance to play sport and to become part of a team, part of a league, to endeavour to excel—the chance to do all those things that sports can be to young people in an exciting and enthusiastic way—can be life-changing. Let us make sure that more of our young people get that opportunity.

20:20

[Lord Lexden]

My Lords, we are all indebted to my noble friend Lord Addington for bringing to our attention once more the twin and linked issues of sport in our schools and in adult life. This topic of course grows steadily in importance and preoccupies public attention to an ever greater extent as we get closer to next year’s Olympic Games. However, the Olympic Games concern the world’s sporting elite. It is the rank and file amateur sporting associations and schools across the country with which this debate has rightly been mainly concerned.

If the state of school sport in the United Kingdom were all that we would like it to be today, with the majority of children being classified as having demonstrated “exceptional performance” under the national curriculum level descriptors on leaving school, we would all be confident that they would be likely to flock with enthusiasm of their own accord to the plethora of amateur associations and clubs that operate in every corner of our kingdom. Sadly, however, in many of our state schools sporting performance leaves much to be desired. Departmental figures for 2010 reveal the depressing statistic that only one in five state schools regularly played in competitions with other schools and that only two children in five regularly played competitive sport, even within their own school, and all this despite more than £2 billion having been spent in attempts to rectify the position.

The independent sector, on the other hand, continues to provide many centres of excellence, as shown by Millfield School, for example, with its outstanding sporting record. At school level, partnerships between the state and independent sectors—a point that as a former general-secretary of the Independent Schools Council I always stress wherever appropriate—offer an immensely important way forward, as I think more and more people have come to appreciate over recent years.

Although the report is some years old, the Institute of Youth Sport at Loughborough University has analysed sporting partnerships between the independent and state sectors. The report mentions numerous benefits to the pupils involved, including increased self-esteem, motivation expectations, new chances to try sports that had not previously been available, the establishment of new links between schools and local clubs, and the dispelling of misplaced preconceptions that the pupils in the two sectors had about each other. As many speakers in this debate have stressed, schools must be opened as fully as possible to the wider community. Such great gains—to individuals and to society as a whole—should be extended as widely as possible. School partnerships between the two sectors must be conducted on an equal basis, bringing enjoyment and satisfaction on both sides. For my part, I continue to regret that as soon as possible I fled from the rugby field and the cricket pitch for the tranquillity of the school library.

What should be our overall aim? If we could work towards ensuring continuity for pupils, we could end the distinction between school sport and sport in later life, and the two would become merely different points along the same spectrum, as my noble friend Lord Addington stressed at the outset. My noble friend Lady Heyhoe Flint also lent strong support for that view. I believe that this is what we should be trying to do, especially if we are to avoid squandering that increased enthusiasm and participation created by the Olympic Games for which everyone hopes. In too many previous Games in other countries, participation has soared in the immediate aftermath, only to tail off sharply over a longer period. If Britain’s Games serve as a catalyst for the mixing of schools and local sports clubs, its legacy will last longer than the stadium’s own steel.

Success in this venture will spring from partnerships between sports organisations and the nation’s schools, underpinned by a high degree of volunteering. Apart from areas where government agencies such as Sport England could help to facilitate such partnerships, progress should proceed as far as possible without heavy-handed bureaucratic intervention. Perhaps more responsibility for the initiatives that are undertaken could rest primarily with school heads, although of course the local clubs themselves would be equally important partners.

Finally, and most importantly, such a strategy would go a long way towards improving the health of scores of children and encourage the virtues of sportsmanship that are just as important off the field as they are on it. It was Cicero who taught us that:

“It is exercise alone that supports the spirits, and keeps the mind in vigour”.

20:25

[Baroness Billingham]

My Lords, we do indeed thank the noble Lord, Lord Addington, for this interesting Question. I shall just repeat it to remind the House what it says:

“To ask Her Majesty’s Government what proposals they have to ensure that the quality of teaching of school-age sport increases the levels of participation in sport in later life”.

Well, my straightforward and brief answer to that is, “None whatever”. I have to say that I am outraged, as are thousands of others, that the actions taken by the coalition so far have destroyed the hard-won foundation for sport laid by the previous Government. I can tell noble Lords that it was not easy. Successive Labour Sports Ministers, supported by the health and educational lobbies, battled to increase the reality of PE in schools and to open up the reality of sporting extracurricular activities, which other noble Lords have mentioned. They succeeded, and when the coalition took over, it had the potential to improve not only the health of the nation but to bring about a fair and broad introduction to sport at grass-roots level. Within that framework, school partnerships had offered expert, well trained staff and the network of school sport partnerships that held the prospect of high-level professional input into schools, which had been lacking in the past and which we had all bemoaned.

So let us fast-forward to the arrival of Michael Gove, Secretary of State for Education for the coalition Government. He promptly announced a cut of more than £160 million of funding for sport in schools. He did this by removing the ring-fencing of that money, allowing heads to decide where the extra money should be spent. When league tables of academic achievement dominate the priorities of heads, the likelihood of that money being spent on academic subjects becomes, for them, irresistible. That decision, taken by the Secretary of State without any public consultation or discussion within the schools themselves and, I understand, without even any discussion in Cabinet, will have the most profound and devastating effect on the sporting lives of future generations.

To take away basic school sport is to wreck grass-roots sport—the vehicle by which individuals may later choose a specialist sport to provide a lifelong interest and involvement in that sport. The Secretary of State ignored at a stroke all arguments about the benefits of sport across the nation, as others have mentioned—health, well-being and educational advantage. It is clear that Michael Gove is sport-phobic, even philistine, and it is even more astounding when viewed against the promises of sporting legacy to be achieved against the background of the 2012 Olympics.

All promises are broken. As the Times wrote just last week:

“2012 legacy plan for a fitter Britain is quietly scrapped”.

So much for the promises which helped London to win the Games, and so much for the vision of the noble Lord, Lord Coe, of a healthier sporting nation. Even the Prime Minister is a very keen sportsman. However, they all find themselves well and truly rumbled. The coalition fails to understand the crucial role of schools, both secondary and primary, where well taught sport can be embedded as the foundation for children’s future sporting lives. Instead, the DCMS, the Secretary of State and the Sports Minister show their total lack of understanding of the nature of a sporting heritage. Grass-roots sport is the key to success. Their belief that competitive sport is the answer—that Olympic-style competition might be the spur—completely misses the point. As has been said, for a small minority of very talented individuals that may be the case. For the vast majority, however, it will prove disastrous.

All the evidence shows that Labour’s investment in sport was having a rich return. Our ambition of 2 million more people becoming physically active by 2012 and for 60 per cent of young people to be doing at least five hours of sport per week became a reality. This is now on the scrapheap of coalition dogma. That is why I am so angry. For the first time, students in state schools—93 per cent of the school population—were provided with a well funded framework for a sporting legacy. The statistics of the outcome of the Labour investment of £1.5 billion from 2003-08—specialist school colleges, as have been mentioned, school sport co-ordinators, school and club links, and a host of other initiatives—showed a 10 per cent increase in active participation across the community. By his draconian action, Michael Gove has put paid to this, with only government support for competitive sport to hide his nakedness.

But noble Lords can relax. Public schools, which educate just 7 per cent of our children, know better. Their comprehensive programme of expensively funded school sports continues unabated. They provide a full range of sport, competitive and non-competitive, and they will be richly rewarded. In future, even more privately educated athletes will hold aloft the winning trophies and wear the gold medals around their necks. The rest—the 93 per cent—will look on to a world that has been ruthlessly denied them.

Finally, to put the tin lid on it, the Government have announced an additional £41 million for the Olympic opening ceremony, presumably for hundreds of synchronised maypole dancers. What a total lack of judgment. That money should have gone back into schools and grass-roots sport. It is most dispiriting. The coalition has lost its way.

20:32

[Baroness Garden of Frognal]

My Lords, I thank my noble friend for calling this debate, the importance of which is exemplified by the calibre and the expertise of those who have spoken this evening and the quality of their contributions. It is not often that we get the chance to debate the quality of teaching of PE and sport and the positive impact it can have on lifelong participation, and I am very pleased that we have been able to do so today.

Ofsted’s report, Physical Education in Schools 2005/2008, published in April 2009, found that the overall quality of teaching in physical education was good or better in two-thirds of the schools it visited, although it was more variable in primary schools. The previous Government’s PE and Sport Survey 2009/10 found that 84 per cent of pupils aged five to 16 participated in at least two hours of physical education per week in curriculum time. However, the survey also found disappointingly low take-up of regular competitive sport by young people, with only around two in five pupils taking part in regular competitive sport within school, and only around one in five in regular competitive sport against other schools. That is hardly a good platform on which to base lifelong participation in sport. I rather share with the noble Baroness, Lady Grey-Thompson, some memories of those miserable days on cross-country runs and foggy sports pitches. For those like me who were not in any way built for sport, this did nothing to enhance self-esteem.

However, noble Lords throughout this debate have spoken of the very wide-ranging benefits of sport which of course start with a good teaching experience. The noble Baroness, Lady Howells, the noble Baroness, Lady Grey-Thompson, the noble Lord, Lord Smith, and others indicated the importance of enthusiastic and motivated teachers at school to ensure that young people regard sport as fun. This is really important if we are to encourage young people to continue sport after school and into their adult life. We know that there are ages and stages when participation drops. As my noble friend Lord Addington indicated, 16, 18 and 21 are the key ages at which participation drops. There are particular concerns about cohorts, including girls and young women, and indeed young people with disabilities who are not encouraged to continue in sport, as might serve them well. We heard from the noble Baroness, Lady Howells, about the life-changing effects of sport, the inspiring programme in Grenada, and the event she attended recently at Newham College.

I will pick up one or two of the references to particular sports. My noble friend Lord Addington asked for examples of the best schemes targeting community participation. We have an example from England Netball, which developed the Back to Netball programme aimed at tempting women who have dropped out of the sport to return through a fun and flexible offer. This approach is driven by a network of netball development officers around the country, appointed by England Netball. The success of the programme is evaluated and monitored in the partnerships which are created locally to deliver and provide the necessary support and exit routes to sustain women’s participation beyond their initial engagement. England Athletics also developed a programme, and my noble friend Lady Heyhoe Flint talked about the Chance to Shine cricket programme, which has been so successful in increasing participation, and in appealing to women to take part in cricket. If only we could read more in the media about the success of women’s sport and teams, that would help to enhance sport across the board for girls and women.

As part of delivering a legacy from the London 2012 Olympic and Paralympic Games, the Secretary of State for Culture, Media and Sport has stated that he wants to create a culture of people playing sport for life and has already written to all the national governing bodies of sport saying that they will be required to focus more on youth from 2013—specifically the 14 to 25 year-old age group. He will be making an announcement in January about a new strategy for participation which will include better links between schools and sports clubs in the community. Contrary to what the noble Baroness, Lady Billingham, was saying, we are not walking away from increasing participation. Every sports governing body will have individual targets in their 2013-17 sports plans that they will have to reach.

The ambition is for every secondary school club to be linked to a multi-sport club in their area and for sport governing bodies to have much stronger relationships with schools. As we have heard today, young people who join a sports club are far more likely to continue playing sport when they leave school. By providing the right coaching or activity at the right time and in the right place, we can bridge the gap between school and community sport through satellite clubs and sports hubs. Sport England is working with 34 national governing bodies of sport to increase the number of five to 19 year-olds taking part in club sport or taking on leadership and volunteering roles within sport. Those roles are also extremely significant in involving and enthusing people.

Places People Play, Sport England’s £136 million lottery-funded mass participation legacy programme—which was mentioned by my noble friend Lady Heyhoe Flint—includes Sportivate, a £32 million programme that gives 14 to 25 year-olds access to six-week courses in a range of sports including judo, golf, tennis, wakeboarding, athletics, and parkour—or free running. That programme is aimed at those who do not currently choose to take part in sport in their own time, or who do so for a very limited amount of time, and will support them to continue playing sport in their community after the six weeks is up. There is also the Sports Makers programme, which is recruiting tens of thousands of new sports volunteers, aged 16 and over, to organise and lead community sporting activities across the country.

My noble friend Lord Addington and the noble Baroness, Lady Billingham, have berated us once again on the School Sports Partnerships front. The noble Baroness is quite right that my right honourable friend the Secretary of State for Education announced in October last year that ring-fenced funding would not continue beyond the summer term 2011. On average, each of these partnerships costs £250,000 to run, and while many were successful in generating interest and increasing participation, this was not true of all of them.

We will build on the good work already being done by schools to encourage more pupils to play competitive sport both in their school and against other schools. I stress that we are not trying to dismantle school sport partnerships. We are happy for schools to continue to work in partnership with other schools if they wish to do so. We are simply not requiring them to and instead entrusting partnerships to schools for them to continue to fund them from within their school budgets if they want to.

There are all sorts of partnerships. My noble friend Lord Lexden spoke of the very successful schools partnerships between state and independent schools, which enhance the prospects of a range of children and young people who would not otherwise have access to particular facilities. We are encouraged by the fact that more than 10,000 schools have signed up to be part of an exciting new competition, mentioned by my noble friend Lady Heyhoe Flint, which will harness the power of the London 2012 Olympic and Paralympic Games to inspire a generation of young people to take part in competitive sport, and will culminate in a national finals competition. The first of these will take place in May next year at the Olympic Park. In response to the noble Baroness, Lady Grey-Thompson, I say that more than 30 sports are involved in this, so there should be something for everyone to participate in. We hope that all young people—boys, girls, young men and young women, the disabled and the fully able—will find something that will be interesting and fun to participate in.

The noble Baroness, Lady Grey-Thompson, mentioned the difficulty of engaging girls and women in sport. It was great to hear that England's netball team recently became 2011 world series champions. Following the World Championships this year, we have 12 world champions in Olympic sport, of whom six are women; and 18 world champions in Paralympic sport, of whom eight are women. The participation figures for women’s sport do not make great reading. The Government will be much tougher at holding sports to account and encouraging them to ensure that girls enjoy sport as much as boys.

My noble friend Lady Heyhoe Flint also mentioned the community use of school sports facilities. The Government are encouraging more community use of school sports facilities through extended schools programmes. We hope that they will remain open for more people to enjoy.

The noble Lord, Lord Smith, talked about sport giving young people self-esteem, and about how life-enhancing that is in all sorts of ways that range far wider than sport. Significant evidence shows that sport can have a positive impact on behaviour. When it is used as part of a wider development programme of education and support, it can certainly lead to reduced offending and better social and educational outcomes. A great scheme called StreetGames works with six NGBs to build a sporting infrastructure in deprived areas and has had great success in recruiting and training coaches, community sports leaders and volunteers.

The contributions to this short debate have focused very much on the wider impact of sport on life-enhancing skills. We have heard about a sense of achievement. My noble friend Lord Lexden spoke of the virtues of sportsmanship and my noble friend Lord Addington of the social benefits and of a wide range of other activities that add to them.

I am conscious of the time. I end by thanking all noble Lords who took part in this stimulating debate, and give special thanks to my noble friend Lord Addington for raising this important issue. We are all shaped by our experiences. No doubt the shape of many of us here reflects the amount and quality of PE and sport we experienced and enjoyed at school, and the extent to which we took that participation with us into adulthood. As we count down to the Olympic and Paralympic Games we can be excited and proud of all that is going on in school and community sport. The Government will continue to work hard to ensure that sport remains a key part of our national life.

Health and Social Care Bill

Wednesday 7th December 2011 Lords Chamber

Committee (11th Day) (Continued)

20:45

Amendment 258

Moved by

[Lord Willis of Knaresborough]

258: After Clause 57, insert the following new Clause—
“The Health Research Authority
(1) There shall be a body corporate called the Health Research Authority (referred to as “the HRA”).
(2) The Secretary of State shall make all necessary regulations to establish the HRA within 12 months of the Act receiving Royal Assent.
(3) The HRA shall manage a co-ordinated process for all aspects of the approval of health research involving human participants or their data, including—
(a) the provision of ethics committee opinions and other approvals,(b) with the National Institute for Health Research and NHS trusts, delivering a consistent, efficient process for obtaining permission for research carried out under the scope of the Research Governance Framework for Health and Social Care (referred to as “NHS R&D permissions”),(c) with the Medicines and Healthcare Products Regulatory Authority, improving the regulation of clinical trials of medicinal products, and(d) other such functions as may be specified in regulations including those currently being undertaken by organisations which will cease to function following the implementation of future legislation.(4) The HRA shall have the following general functions—
(a) providing general oversight and guidance as it considers appropriate in relation to activities within its remit,(b) publishing annual metrics and indicators on all research approvals within its remit, (c) working with relevant bodies across England, Wales, Scotland and Northern Ireland to address differences in practice and legislation, and providing supporting guidance or codes of practice that apply across the UK,(d) superintending compliance with requirements imposed by legislation relevant to its remit,(e) monitoring developments relating to activities within its remit, and(f) facilitating and promoting health research involving human participants or their data.(5) The HRA must carry out its functions effectively, efficiently and economically.
(6) In carrying out its functions, the HRA must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed).
(7) The Special Health Authority known as the Health Research Agency is abolished and its functions transferred to the HRA.”

[Lord Willis of Knaresborough]

My Lords, I beg to move, at last, Amendment 258 and will speak to Amendments 260A, 260B and 260C, which stand in my name and those of other noble Lords. I put on record my thanks to noble Lords across the Chamber for the way in which they have supported a series of proposals and amendments concerning research. This has been a non-party political area of the Bill and I am deeply grateful to them.

On Monday, the Prime Minister launched a new strategy for UK life sciences with all the hype that he could muster—quite right too, as it is an outstanding document and contribution to life sciences. Our research is world beating, our National Health Service has a patient database unrivalled anywhere in the world and we are putting together a research and governance framework that will make the UK the place to do health and medical research. It is UK patients who will benefit by having novel and ground-breaking treatment literally years earlier than could have been hoped for five years ago when the noble Lords, Lord Darzi and Lord Sainsbury, set out with a very similar message. There is no difference between either side of the House on that issue.

By coincidence, the amendments before us today will help deliver that strategy—and deliver it earlier. At the heart of the delivery platform for the strategy for improved outcomes for patients is the Health Research Authority, established not as a creature of Government but as a full NDPB. In essence, the amendments in this group would put in the Bill the commitments that the Prime Minister gave this week, and that the Secretary of State gave when he accepted the proposals made by the Academy of Medical Sciences in its ground-breaking report, A New Pathway for the Regulation and Governance of Health Research.

To date, establishing the Health Research Authority via the Bill has not been the Government’s preferred option; I think I am safe in saying that to the Minister. Instead, the usual cautious Civil Service-driven approach of creating a temporary vehicle meant that a special health authority was set up on 1 December to carry out many of the functions of a future NDPB. However, much of the confusion, duplication, delay and obfuscation outlined in Sir Mike Rawlins’s report will continue to exist, as we wait for another Bill that may or may not come in the next Session of this Parliament. If a single Member of this House actually believes that any Government would be enthusiastic about bringing in a new Bill, having sat through this particular Bill—which is by no means finished—then, quite frankly, they are on a different planet.

The Minister argues that the special health authority will do almost everything that such a Health Research Authority will do, but is this really the case? Will it really have the authority or the power to change much at all? The research community welcomed, as I did, the transfer of the National Research Ethics Service to the special health authority, but what about the plethora of other regulatory bodies? Ethical approvals, including the storage of tissue, from the HTA, and embryo project licences from the HFEA will still be required. Ethics and Confidentiality Committee approval will still be needed for exemptions to common-law confidentiality. Permissions from the Administration of Radioactive Substances Advisory Committee will be needed if research clinicians wish to administer radioactive substances. All the powers of the Medicines and Healthcare products Regulatory Agency will remain exactly where they are.

As a special health authority, the Health Research Authority has absolutely no authority to deal with the different legislative regulatory arrangements across the devolved nations. It was quite interesting that with Amendment 260, tabled by the noble Lord, Lord Patel, the Government prayed against creating a special health authority because it would be able to deal only with England; it would not be able to deal with the rest of the United Kingdom. This is exactly the sort of organisation that has been set up to deal with this crucial area of health research.

Crucially, there will still be the vexing issue of individual National Health Service research and development approvals. Unless the HRA is set up as an NDPB in this Bill, approval processes, which are often taken sequentially rather than in parallel, with often conflicting advice from different bodies, will continue to cause confusion, delays and frustration, and the UK will continue to see research programmes haemorrhage away to international competitors as clinical trials persist in being problematic—exactly the opposite of what A New Pathway for the Regulation and Governance of Health Research is preaching to us this week.

Amendment 258 would establish the Health Research Authority in primary legislation—now—as an NDPB and set out the HRA’s role in co-ordinating the approval and regulation of health research. Subsection (3) provides for the transfer to and the management of,

“all aspects of the approvals of health research”.

Subsection (3)(a) covers the transfer of functions of the National Research Ethics Service to the HRA when it is established as a full NDPB, but the wording is broad enough to cover other research approvals that could be transferred—for example, those of the Human Fertilisation and Embryology Authority, the Human Tissue Authority, the Ethics and Confidentiality Committee and the Administration of Radioactive Substances Advisory Committee—all without the need for further legislation. This could all be done through secondary legislation in an orderly time and allowing for full consultation.

Subsection (3)(b) covers the HRA’s role in providing NHS R&D permissions, which it would undertake jointly with NHS trusts. Amendment 260C, which I will come to in a minute, allows for a more detailed exploration of the exact role of the HRA in NHS R&D permissions. Subsection (3)(c) covers the HRA’s role in supporting the MHRA in the regulation of clinical trials.

Subsection (4) explores the general functions of the HRA. At the moment, some regulatory organisations are very good at providing advice and support; others, quite frankly, are not. High-quality guidance is needed in some areas, and where this is currently absent or confusing—for example, in the use of patient data in research, which is an absolute minefield—subsection (4)(a) would ensure that researchers apply appropriate standards consistently across all studies, with the HRA becoming an authoritative source of guidance both to support researchers and NHS trusts and to build patient confidence in research.

Subsection (4)(b) would support the HRA’s quality remit, as it would be required to publish,

“annual metrics and indicators on all research approvals”,

while subsection (4)(c) addresses the important area of UK-wide research frameworks. The regulation and governance pathway is currently fragmented across the whole of the United Kingdom. Some research approvals, such as those of the HFEA, apply to the whole of the UK; some apply to England and Wales, with different arrangements in Scotland, as happens with the HTA and the ECC; and some are managed separately in each Administration, as happens with the NHS R&D permissions in individual healthcare trusts. The complexity of the system can create additional barriers for researchers, which is a huge barrier to the UK being the prime destination in terms of research.

Subsection (4)(f),

“facilitating and promoting health research involving human participants or their data”,

is a massive issue, which again, if it were on the face of the Bill, could be dealt with in secondary legislation.

Put simply, Amendment 258 would allow the Health Research Authority to be set up with a minimum of detail, allowing the details to be worked out in consultation with the broad community, and indeed with public consultation, but it would mean that any future government would have to work on putting it into action, rather than waiting for some legislation, which may or may not come down the track. The real issue is that if we are left with a special health authority, we will be left with it in four, five, or perhaps even 10 years’ time. We will have lost the opportunity to move forward. It is that serious.

Amendment 260A is a probing amendment, which sets out the specific health research functions that should be transferred to the Health Research Authority. What we are saying is that, in addition to the National Research Ethics Service, it would be easy in this piece of legislation, which the Government may or may not take forward—and this is entirely a probing amendment—to bring in, in addition to the Ethics and Confidentiality Committee, the research functions of the Human Tissue Authority, the Human Fertilisation and Embryology Authority and the Administration of Radioactive Substances Advisory Committee. It does not require a new Bill to do that. It could simply be done on the back of this Bill.

Amendment 260B is again a probing amendment, which seeks to strengthen the link between the Medicines and Healthcare products Regulatory Agency, the MHRA, and the proposed Health Research Authority. In effect, it would establish a duty of co-operation between the two organisations. It is expected that the new Health Research Authority will take on most aspects of the regulation of health research, except for the regulation of clinical trials of investigational and advanced therapy medicinal products, which will continue to be regulated by the MHRA. This simple amendment seeks clarity from the Government around their expectations for the relationship between the Health Research Authority and the MHRA.

Finally, Amendment 260C is the crucially important probing amendment because what it would do is establish an organisation called the “National Research Governance Service”. This is hugely important because one of the biggest barriers to effective development of clinical trials at the moment is getting NHS R&D permissions. It took one hospital five weeks to get the necessary permissions for a kidney research clinical trial; in another it took 29 weeks. Getting a stroke programme up and running took one week on one site and 35 weeks on another. The average time it takes to get a cancer trial up and running is something like 80 weeks. It is absolute nonsense, and how the Minister can turn to this House and say we have an opportunity to do something about that and not take it is something only the Minister can respond to—which I am pretty sure he will do very strongly and very supportively of these amendments in the near future.

NHS R&D permissions are currently the greatest barrier in the regulation and governance of health research, with multiple, duplicative checks undertaken at every NHS site. The Academy of Medical Sciences recommended creating a national research governance service—this comes directly from the AMS report—within the HRA to centralise as many of these checks as possible to avoid duplication. The Government have ignored this recommendation and instead introduced standard operating procedures and incentives to make improvements to the current system. Only a civil servant could have done that, when in fact what we want is action.

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I say to the Minister that these developments are welcome but it is far from clear whether they will be sufficient to remove this major barrier. Amendment 260C would provide the framework to remove vast amounts of duplication. Subsection (2)(a) of the proposed new clause would mean that the governance checks that apply to every site would be undertaken just once by a central body and would therefore reduce duplication. Let us imagine the effect that that would have on getting clinical trials up and running, particularly large trials.

Some may argue—the Minister may in his response—that it is not possible for a central body to undertake governance checks or to grant NHS R&D permissions on behalf of NHS trusts because trusts are autonomous bodies. I say that that is nonsense. It is essential that we find a way to deliver that. The idea that trusts will not work together and will not rely on a responsible body to do that work for them is something for which there is no evidence to support those claims. Many trusts currently are able and willing to delegate responsibility for the checks, provided that they trust the body undertaking the checks. An independent body, an NDPB, would deliver that, rather than what is proposed by the Government.

I now draw the attention of noble Lords to subsection (2)(c), which deals with the urgent need for,

“NHS trusts to determine local feasibility”,

swiftly. On the recommendation of the Academy of Medical Sciences, we have set out a 20-day timescale for NHS trusts to undertake this part of their governance checks. At the moment, NHS R&D permissions are the time-limiting factor in all research approvals and examples have been given where it has taken in excess of a year to get a permission at a single site. Twenty days is ambitious. The role of trusts in the process would be reduced as more things are done centrally. But all in all this is a real opportunity for us to deliver a major change in the way in which we put together research programmes.

I hope that my noble friend in his reply, and other noble Lords who will speak to these amendments, will accept that this is a one-and-only chance for us to do something momentous in this House. I trust that the Minister will give full support. I beg to move.

[Lord Walton of Detchant]

My Lords, I give very warm support to these amendments, which were so expertly introduced by the noble Lord, Lord Willis. As he said, the report of the Academy of Medical Sciences, after a long period of study and a committee chaired by Sir Michael Rawlins, made a number of important proposals, which the Government, in principle, accepted.

This takes the matter very much further. Following last night’s very exciting and far-sighted Statement by the Government about the developments in research and their sponsorship of translational research, the need to translate the discoveries of basic medical science into practical developments in patient care, the crucial importance of making access available to the NHS database to enable clinical trials to be carried out, and the crucial importance of more rapid access to new medicines and so on through the NHS, it is crucial to recognise that all those proposals are very important. These amendments would carry that forward.

It is also important that the Health Research Agency, which has already been established, is as yet an inadequate vehicle to further the developments to which the noble Lord, Lord Willis, referred in great detail. It is essential to recognise that to carry forward the developments envisaged in the Government’s Statement last night on translational research on the governance of clinical trials and the overall governance of research as a whole in the NHS, something like these amendments must be put in the Bill.

I want to comment briefly on the proposals set out in one of the amendments, to the effect that it would be sensible to remove from the Human Tissue Authority and the Human Fertilisation and Embryology Authority their research components and that these would much more happily settle in the newly defined Health Research Authority. There is a lot of sense in that, because the research carried out by these organisations is important, and it is research that is in many ways crucial to the development envisaged in these amendments.

However, it is important to recognise too that the Human Tissue Authority in its present existence has a major responsibility for regulation—regulating the departments, for instance, in which anatomical work is carried out, and regulating departments of pathology and other teaching functions which are absolutely vital. Similarly, the Human Fertilisation and Embryology Authority is not primarily concerned with research but also has major licensing functions, in licensing organisations in which work under the Human Fertilisation and Embryology Act can be carried out.

I understand that there has been a proposal by the Government that the functions of the HTA and the HFEA might be transferred to the Care Quality Commission. I would only comment, as John McEnroe said, that you cannot be serious. The Government cannot really be serious. This is not an organisation which is set up to handle that type of information. It is crucial to recognise that the Care Quality Commission has very specific responsibilities. It has taken on the responsibilities of three previous bodies, which were involved in looking at healthcare, social care and psychiatric care. It is carrying a major load—

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

Will the noble Lord give way? I am sure the noble Lord will know that through this Bill we cannot transfer the functions of either the HTA or the HFEA to any body at all. Indeed, that was the substance of my undertakings to this House under the Public Bodies Bill debate—that we would defer consideration of those matters until a later Bill. This Bill simply covers the reform of the health service, obviously, and my noble friend has sought to introduce an amendment to set up the Health Research Authority as a statutory body. But I gave an undertaking to this House that I take very seriously: that the consultation process on the transfer of functions from the HTA and the HFEA has to take place. It would be premature for this Bill to cover that matter. For that reason alone, I urge noble Lords to be very cautious about my noble friend’s amendment, about which, nevertheless, I will say some warm words.

I wanted to specifically cover that matter, as I notice the noble Baroness, Lady Warwick, looks as if she wants to rise to her feet. I can understand why, because it is important for the Committee to understand that the matters to which the noble Lord has just referred are matters which we will reach in due course, rather than today.

[Lord Walton of Detchant]

I am very grateful to the noble Earl for clarifying the position, but it is important that in the longer term we shall have to learn more about the future of those two very important authorities. In the mean time, the crucial importance of these amendments is to clarify in the Bill the responsibilities of this new organisation which is going to be responsible for regulating research in the UK, and which will streamline and improve the present mechanisms for research approval in many different situations. Therefore, I strongly support these amendments.

[Lord Patel]

My Lords, I hesitated to rise last time because I saw the Minister getting up, and I thought he was about to make a pronouncement to stop the debate because he had a solution to it all, but I realise now that was not the case.

I strongly support the amendment of the noble Lord, Lord Willis. I have my name attached to it. It is crucial that we hear more than just the setting up of the authority, as the Government have announced a few days ago, to take charge of the National Research Ethics Service. I was part of that organisation until I finished my time in the National Patient Safety Agency and was responsible for setting up much of its work, so I take the blame for its shortcomings, if there were any.

The issue we are discussing is why there is a need to set up the Health Research Authority with wider functions than those of NRES. The report produced by the Academy of Medical Sciences identifies serious issues which are important if we are going to deliver on the life sciences strategy announced yesterday and on which I have highly commended the Government; it is excellent. But if we are to deliver on it, we need to streamline the regulatory processes that currently are so cumbersome. For instance, an NHS research and development permission is required at every NHS site where the research is to take place, and the review by the Academy of Medical Sciences confirms that this is perceived to be by far the greatest barrier within the regulation and governance framework. The current process for obtaining research permissions across multiple NHS sites is inefficient and inconsistent. Local negotiation about research contracts and costings is a further source of delay, together with a lack of agreed timelines within which approval decisions are made. Governance arrangements are therefore very important, and the noble Lord, Lord Willis, told us that the report has highlighted that there should be a governance board as part of the Health Research Authority.

The noble Lord gave some examples of delays which had been highlighted by respondents, including in kidney research, stroke research and multiple clinical trials involved in heart research. The solution is to set up an authority which can provide a national research governance service as a part of it. Clinical trials are another example. The noble Lord mentioned how our global share of clinical trials has fallen dramatically. This is particularly related to the fact that it is cumbersome to conduct clinical trials in the UK. To address the challenges identified around clinical trials, improvements are clearly necessary at both the European and the UK level. I know that discussions are going on and that the department is involved in a revision of UK clinical trials, and I hope that they will come to some fruition. The noble Lord also said that the relationship between the new Health Research Agency and the Medicines and Healthcare Regulatory Agency will be crucial in improving the current system. That is an important point, because it was the relationship between the MHRA and clinical trials that at times caused problems.

The problem is that the existing regulation and governance pathways, which evolved in a piecemeal manner over several years, have now become dysfunctional. Although new regulatory bodies and checks have been introduced with good intentions, the sum effect is a fragmented process characterised by multiple layers of bureaucracy and uncertainty in the interpretation of individual pieces of legislation and guidance. This has produced a lack of trust in the system along with duplication and overlap of responsibilities. There is no evidence that these measures have enhanced the safety and well-being of either patients or the public, so the answer lies in now creating a Health Research Authority with multiple functions in order to go forward.

[Baroness Warwick of Undercliffe]

My Lords, I declare an interest as chair of the Human Tissue Authority, whose work is affected by the review of arm’s-length bodies and is referred to in one of the amendments. The desire to streamline the governance and regulation arrangements to support high-quality research underlies both the Government’s intentions and the amendments relating to the new Health Research Authority. These are laudable aims which I certainly support and which the HTA also supports wholeheartedly. Researchers want to get on with their research, and from their perspective what is important is that they see a seamless end-to-end and proportionate process for regulation and governance. The HTA has always striven to do exactly that within its focused regulatory remit relating to research while ensuring that the interests of the public are protected. But transferring the HTA’s work in research to the new body, as Amendment 260A proposes, may undermine these aims. I want to focus my brief remarks on that point.

The Department of Health clearly has favoured an option to keep all the HTA’s functions together, including research, and will consult on that basis shortly. I believe this is to a large extent because of the HTA’s track record of collaborative working to ensure that the regulatory burden on researchers is minimised. I would be happy to provide a range of examples dealing with NRES, the MHRA, the HFEA, tissue banks and clinical pathology accreditation, but in the interests of brevity I certainly will not iterate them now. Suffice it to say that, in the absence of detail at this stage about how the HRA will operate, it would be premature to make decisions now in haste that we may live to regret later. However, I will briefly set out three reasons why I believe that the HTA’s research functions should not be part of the Health Research Authority.

21:15

First, if the HTA research function transferred to the HRA, some organisations that now have a single HTA licence for all their human tissue activities, including storage of tissue for research, would then be regulated by both organisations, because their other functions would also need to be licensed. There would, inevitably, be duplication. That could affect 200 establishments or more in the post-mortem sector, which also uses tissue for patient treatment, and the anatomy sector, which also uses tissue for the training of healthcare professionals. Not only would there be duplication but it would increase complexity, increase the burden and increase costs, particularly within the NHS.

Secondly, and perhaps most importantly, the HTA is the guardian of consent. Splitting it up, which would be the result of this amendment, could risk a different understanding and interpretation of consent and create potentially lower or conflicting standards in different sectors over time.

Thirdly, when the Academy of Medical Sciences review looked at the key issues for researchers, it identified clinical trials approval, NHS R&D approvals and patient information. It is a misnomer to talk about the HTA’s research functions in the same breath as these. Although the HTA has a broad regulatory remit, its licensing remit in relation to research is relatively discrete—it extends only to storage of tissue and its removal from the deceased. The HTA does not license the use of tissue for research, approve clinical trials or approve individual research projects.

The HTA reduced licence fees by 30 per cent in the research sector this year and it will make further reductions in 2012-13 as a result of improved efficiency. The marginal cost of regulating research among other activities is relatively low.

The HTA will work closely with the Health Research Authority to provide the single point of access for researchers that retains all the strengths of its current systems and fully meets the requirements of the legislation. The HTA wants and expects to be judged on how it achieves that for the benefit of research.

[Lord Turnberg]

My Lords, I had a previous bite of this cherry when I spoke at some length in my prayer to take note of the statutory instrument to set up the Health Research Agency a few weeks ago, so I will not be long and will not repeat what I said on that occasion about the need for a research regulatory authority that was more than simply a home for the national research ethics committee. Highly important though that is, my message was that it was essential but not sufficient. If we are to get over the barriers to research posed by the regulatory processes that delay research approval, we must include more functions.

I was very taken by the Statement that the noble Earl repeated yesterday on the life sciences. It was a marvellous demonstration of the Government’s commitment to research and innovation—I could not have said more myself in many of its aspirations. However, if you were looking for a reason for us to have a fully functioning research regulatory authority, as set out in this group of amendments, you need look no further than that Statement. It points out quite clearly where the barriers to innovation lie—with excessive regulation, access to patient data and delays in taking up innovation into practice.

On regulation, the Statement says:

“Excessive regulation can mean that the uptake of new treatments and technology is slow. That is a challenge felt acutely by an industry that sometimes feels that the return is not there quickly enough to satisfy investors. It is felt even more acutely by patients”.—[Official Report, 6/12/11; col. 685.]

There it is; we need a more strongly established research regulatory authority. Let me give one example of where we are in danger of losing out. The NIHR—the National Institute for Health Research—sponsored the North West Exemplar programme to see whether it could engage both the pharmaceutical industry and the NHS in trying to get approval for multicentre clinical trials in a reasonably short time. This involved getting the strategic health authority in the north-west to convince the various hospital trusts in its area to approve the research as efficiently as possible. It has worked—their rate of research and development committee approvals are rapid and compare very favourably with the rest of Europe. They are certainly better than the rest of the UK.

However, there is a danger of that being lost when we lose the strategic health authorities. The driving force of the strategic health authorities will disappear shortly. That is another reason for a research regulatory authority to take on this leadership role: to drive this exemplar forward and spread its message more widely. We need it, therefore, not only for the National Research Ethics Service and the ethics committee on the use of data—a separate ethics committee—but for many of the other functions described so forcefully by the noble Lord, Lord Willis.

I heard exactly what the Minister said about the HTA and the HFEA, and what my noble friend Lady Warwick of Undercliffe said about the HTA. I accept that that should be looked at as a separate set of items. These amendments would allow that; I do not think that they are obviated. However, we need this critical role if we are to take advantage of our excellence in research and if we are to fulfil the Government’s ambitions, as set out yesterday in the Statement. The dangers are evident already, as we see the pharmaceutical industry withdrawing and moving elsewhere. If we are to draw it back, we must have something in the Bill that sets up a full—and fully empowered—health research authority. I hope that the amendment has some sympathy in the Government.

[Lord Warner]

My Lords, my name is on Amendment 258. I speak as a former Minister responsible for NHS R&D in the pharmaceutical industry in 2003 and 2004. We were having exactly the same discussions then. Since that time, the National Institute for Health Research has been set up, we have had the Cooksey review, OSCA has been set up, and we have had the review by the Academy of Medical Sciences. All these cases come back to the issue of a faster, smoother regulatory approval system. The same blockages that are being talked about now were being talked about five, six, seven years ago.

In that time the UK has lost large numbers of clinical trials. We continue to lose trials and we are going to lose more to south-east Asia. UK plc suffers while we continue with these present arrangements. I understand the Minister’s anxieties about this. However, at the end of the day it is difficult to see that a new authority would be in place, even with a very smooth passage, until at least a year later than if we went along with the amendment. We need to move faster on this.

I end with one question to the Minister. Have the Government actually talked to the big beasts in science research in this area—to the Wellcome Trust, the MRC, the Academy of Medical Sciences? Have they asked them directly whether they would you sooner have the Willis amendments or wait for a Bill in the next Session. I would like to know what their straight answer to the Minister would be on that particular question.

[Baroness Finlay of Llandaff]

I have my name on the amendments about setting up the authority. In his response to the questions posed, I hope that the Minister will address how exactly we are going to streamline the process, as has been outlined so eloquently, and whether mechanisms such as commencement orders could be used so that we do not delay the process of speeding up research, because some parts, such as the Human Tissue Authority and the HFEA, are not yet clarified. It would be very sad to go at the slowest pace rather than storm ahead. This Government have demonstrated an understanding of research as an important economic driver to the UK as a whole, but that infrastructure, as suggested in these amendments, has to be in place and cannot wait. I hope, therefore, that the Minister will also address the timetabling in detail when he replies.

[Lord Beecham]

My Lords, I come to this debate unencumbered by any particular knowledge or experience of the issues addressed by the amendment, but it is apparent that today’s debate is but the latest instalment in a long-running saga, which in a sense reached its peak almost exactly seven months ago on Report of the Public Bodies Bill; many of the arguments that we have heard today were rehearsed on that occasion. It is not without significance that the noble Baroness, Lady Deech, complained at that time that no full and impartial public review of the risks and benefits, including the financial risks, of the proposed abolition of the HTA and the HFEA had actually been undertaken. Members of this Committee are clearly of the same mind as most noble Lords have been.

At that time, the Minister set out his reflections on the points that had been made in that debate. He pointed out that there was a common theme: a desire for greater clarity on where the Government intended to transfer the functions of the HFEA and HTA, and concern that the dispersal of functions across a range of bodies would risk fragmenting regulation. Clearly, those matters are still in the air. The Minister said that he intended to consult in the late summer on the options for where certain functions would be most appropriately transferred, and intended to proceed on the basis that the preferred option was for the HFEA and HTA functions to be transferred to Care Quality Commission, except for certain research-related functions that would transfer to the health research regulatory agency. Consultation would therefore take place. It is now seven months since all that was said. The main justification for not proceeding with what was sought then, and indeed still is now, was that:

“We do not want to add to what is already a substantial Bill”.—[Official Report, 9/5/11; col. 699.]

It might be thought that there were matters of less importance in the Bill, and certainly matters that in many respects were more controversial, than the topic that we are addressing today.

Having said that, I have listened with interest to my noble friend Lady Warwick, who takes a somewhat different view of this. Without the in-depth knowledge that other noble Lords have exhibited on this I hesitate to disagree with her, but for my own part I am persuaded by the force of the arguments made by the noble Lord, Lord Willis, and those distinguished noble Lords who have supported him. It is not good enough, particularly in the light of the Government’s clearly confirmed intention to press on with giving greater emphasis to the role of research, specifically in this field, that we should be told, as I anticipate—perhaps wrongly—that further consultations will take place and at some time there will be a conclusion and then a Bill. Given that legislation must already be piling up for the next Session, which, presumably, unless the rules have changed again, will be a year long, it is unlikely, with pressure from other departments, that this department will obtain the space for a Bill of this kind, so the uncertainty will continue. Uncertainty is almost the worst feature of the present situation; it cannot be good for anyone concerned with the problems of research, from the point of view of either pure research or, more particularly, its development into industry and production. Equally, the ethical side clearly cannot be allowed to drift.

I hope the Minister will, if he cannot commit tonight to reviewing the position, undertake seriously to discuss matters again with the noble Lord, Lord Willis, and those who have supported him tonight, with a view to seeing whether, even at this stage, the Government can change their position and deal once and for all with a significant issue around which there seems to be a considerable degree of consensus in this Committee and in your Lordships’ House.

21:30

[Earl Howe]

My Lords, the amendments in this group aim to create a Health Research Authority. My noble friend has explained the rationale for the authority very succinctly and I want to make it clear at the outset that I am on precisely the same page as him as to what he is seeking to achieve for health research. We announced in the Plan For Growth in the Budget in March that we would create a body to combine and streamline the approvals for health research, which are at present scattered across many organisations. We also said that wherever we can achieve this simplification without primary legislation, we will. We have already laid legislation to establish the Health Research Authority, which started its work on 1 December 2011 as a special health authority, as was reported in Monday’s Statement on our strategy for UK life sciences. In that form it will take on a number of key functions and I will come to those in a moment.

Looking ahead, as I mentioned earlier, we will be consulting on the future of the HFEA and the HTA. That consultation, as the noble Lord, Lord Beecham, has pointed out, has been delayed but we are still very much intent on launching it and hope to do so shortly. We look forward to stakeholders’ views on the option of passing the research-related functions of the HFEA to the HRA as proposed in the AMS report. In that regard, where primary legislation is required to consolidate functions, we intend to subject it to pre-legislative scrutiny during the next Session and to introduce it as soon as parliamentary time allows.

It may interest my noble friend to know that I am upbeat. I am advisedly upbeat and want to stress to him and other noble Lords that contrary to the apprehensions that have been expressed, the Health Research Authority will have substantive functions as a special health authority. It will combine and streamline approvals for health research through unification of functions and processes wherever that is possible without additional legislation and through co-ordination where it is not. I say to my noble friend without any hesitation that we can achieve a very high proportion of what we wish to achieve with the HRA in this form as a special health authority. It will bring together functions relating to research ethics committees currently performed by the Secretary of State, the National Patient Safety Agency and strategic health authorities. It will operate a single system for researchers to apply for approval to research ethics committees, NHS trusts, the Medicines and Healthcare products Regulatory Agency, the National Information Governance Board and the Administration of Radioactive Substances Advisory Committee.

By April 2013, it is intended also to bring in functions currently performed by the Secretary of State on the advice of the National Information Governance Board’s ethics and confidentiality committee. The Health Research Authority will also work closely with the bodies I have just mentioned, as well as the Care Quality Commission, the Human Fertilisation and Embryology Authority, the Human Tissue Authority and the National Institute for Health Research to co-ordinate relevant functions, processes and standards. That is why, despite my noble friend’s understandable desire to see an NDPB established as soon as possible, I suggest to him that for practical purposes, setting aside the HFEA issue for one moment, the amendment is unnecessary.

However, there is another reason why it would not be right to establish the agency in this Bill—it would not be for the good of research in this country. I say that for the following reasons: it would weaken parliamentary scrutiny by stopping Parliament being able to debate primary legislation on the functions of the agency because it would consign much of the detail to secondary legislation—I do not think that is something that in the past your Lordships’ House has been keen on. It would pre-empt public consultation; for example, on the future of the HTA and the HFEA, and in my view it would put haste ahead of getting it right by dealing with a complex issue without due discussion and consideration.

[Lord Willis of Knaresborough]

I am listening carefully to what my noble friend is saying. However, Amendment 258 would not compromise in any way the consultations which he has rightly promised on the HTA and the HFEA. The proposed new subsection (3)(a) in Amendment 258 refers to,

“the provision of ethics committee opinions and other approvals”.

It does not state what those other approvals are. Therefore, if the amendment were passed, the Minister could consult in a year’s time or in two years’ time and come to a decision without compromising those approvals.

[Earl Howe]

I hear what my noble friend says but I cannot agree that his approach is the best for research in this country. Very real risks would accompany trying to shoehorn a very important and complex issue into this Bill in what I have to say to my noble friend is an inappropriate legislative form. The noble Lord, Lord Warner, asked about the view of the Academy of Medical Sciences on this matter. The last time that I spoke to staff at that body, which was not very long ago, they were dead set against my noble friend’s approach. They believe that the approach the Government are taking, which is a step-by-step approach, is exactly right. They recognise that the Special Health Authority can achieve a very great deal, we do not need to rush into primary legislation and we would do very much better to take our time over that process.

My noble friend mentioned the devolved Administrations. We have also directed the Health Research Authority to collaborate with the devolved Administrations in the exercise of its functions. We expect it to maintain effective communications with the UK health departments on the practical implications of implementing legislation, policy and guidance, building on the success of the national research ethics service at developing a single UK-wide system for research ethics committee review. Therefore, I do not regard that problem as at all insurmountable.

We agree with the intention behind Amendment 260C of improving the consistency and efficiency of reviews of the bodies carrying out research. We consider the National Institute for Health Research to be a more appropriate mechanism than the Health Research Authority for taking action to achieve outcome improvements, such as those called for in the Academy of Medical Sciences report. My noble friend may wish things were otherwise but noble Lords need to remember that NHS trusts are autonomous bodies. It is important that there is a clear division between the responsibilities accepted by them when planning and conducting research and the responsibilities of the body that regulates their practice. In this environment, the NIHR is in a strong position to support and influence them. The NIHR has already introduced mechanisms to achieve the effect of Amendment 260C through its co-ordinated system for gaining NHS permissions, its research support services framework of standard operating procedures and good practice guidance and its research passport scheme. It is also introducing benchmarks for NHS trusts’ performance in the initiation and delivery of research. NIHR funding will become conditional on meeting such benchmarks, so there is a direct incentive for NHS organisations to comply with those benchmarks.

As regards the Health Research Authority monitoring developments relating to activities within its remit, I thank my noble friend for raising the horizon-scanning point. I will gladly consider that further to see what can be done.

In sum, I do not see this amendment as appropriate. I appreciate that my noble friend intended it as a probing amendment, but I hope that I have set out clearly why I do not think that this would be the right way to go. Noble Lords can be relaxed that we are already embarked on a course which should deliver major improvements in all the areas where we want to see improvements as regards the clinical trials process in this country. As I say, I am optimistic that we are embarked on the road to the sunlit uplands in this sense. We will in due course—I hope that that will be sooner rather than later—come to a point where we can embody these things in primary legislation. However, I urge noble Lords to consider the need to take our time and to consider those matters very carefully.

[Lord Willis of Knaresborough]

My Lords, I thank the Minister, as always, for his courteous and passionate reply to this debate. He has used the words upbeat, relaxed and enthusiastic about the amendments and the aim behind them and I appreciate what he said. He made the point—and has made it often—that the Special Health Authority, which was set up on 1 December, will be able to take on, over a short period of time, many of the functions which I have outlined in Amendment 258. I would be grateful if the Minister would put in writing the timetable for delivering all those elements. It would be hugely advantageous to know just how they would fit and dovetail in.

My noble friend Lord Warner—well, he is a friend—commented on the views of the Wellcome Trust and the Academy of Medical Sciences; the Minister said that the Academy of Medical Sciences was against the Willis amendment. In fact, the last time that we met the Academy of Medical Sciences—the noble Lord, Lord Turnberg, and I were on the same platform with it about a month ago—the academy made it clear that, while it did not want to have any detail in the Bill because that would compromise the detailed discussions, it was happy to see the architecture in the Bill. This is something which the Wellcome Trust supported; in fact, I was helped by both the trust and the Academy of Medical Sciences in drafting these amendments. The Association of Medical Research Charities, which I chair, was also incredibly helpful. There are, perhaps, some crossed wires here.

On Amendment 260C, I hear what the Minister says about bringing those two issues together, particularly for the R&D functions of NHS trusts. I said that there is a real issue about autonomous organisations. Why has the NIHR not actually done it? If this is the biggest obstacle to getting clinical trials developed quickly in the UK, why has it not already forged those relationships, and what confidence do we have that it will be able to do so over the next year or so?

This has been a good debate and I am incredibly grateful to noble Lords throughout the House for their support for these amendments. I still believe that the proposals in Amendment 258 could be in the Bill but given the Minister’s assurances and his willingness to debate these issues further, I beg leave to withdraw the amendment.

Amendment 258 withdrawn.

Amendments 259 to 260C not moved.

Amendment 260D had been withdrawn from the Marshalled List.

Amendment 260DA not moved.

Amendment 260E

Moved by

[Lord Fowler]

260E: After Clause 57, insert the following new Clause—
“Charges to overseas visitors
(1) The National Health Service (Charges to Overseas Visitors) Regulations 2011 (S.I. 2011/1556) is amended as follows.
(2) In regulation 6 (services exempted from charges) for paragraph (e) substitute—
“(e) the diagnostic test for evidence of infection with the Human Immunodeficiency Virus (HIV) and counselling associated with that test and its result;(ea) all other services for the treatment of HIV provided to an overseas visitor who has been present in the United Kingdom for a period of not less than six months preceding the time when services are provided;(eb) treatment for sexually transmitted infections other than HIV;”.”

[Lord Fowler]

My Lords, I will be brief. The amendment aims to remove an anomaly in the law which is both absurd and damaging. As the Select Committee on HIV and Aids said in its report, the priority with HIV should be prevention. For every case we prevent we save, in financial terms, about £300,000 in a lifetime’s treatment, as well as the human cost of that lifetime’s treatment. Antiretroviral drugs preserve life, and thank God for that, but they do not cure. The vast majority of National Health Service treatment for HIV is free, but the present law charges for treatment for a small group of people in this country, which has obvious and, frankly, baleful, effects.

First, if the charges result in no treatment, it is dangerous to the individual and endangers his own life. Secondly, it means that the man or woman affected is likely to spread the disease to others and add to the casualty list, although effective treatment reduces onward transmission by something like 96 per cent. Thirdly, such a charging law acts as an obvious deterrent to people coming forward for treatment and testing, which is the whole aim of policy, and negates it. Therefore, the effect of the present law is against all the policy aims of public health—a point very strongly put by the National AIDS Trust, to which I pay tribute.

21:45

What is the current position? Most people in England who live with HIV have free access to treatment. The exceptions who are charged for treatment are refused asylum seekers, visa overstayers and undocumented migrants. Many of these people are destitute and, frankly, unable to pay for the essentials of life, let alone for expensive HIV treatment. The treatment of those with HIV contrasts with the free treatment given for TB and all the other sexually transmitted infections, with the exception of HIV. As regards the other sexually transmitted infections, the Government rightly take the view that charging for treatment would undermine all the efforts to prevent spread. Public health considerations come first. The only exception is HIV.

[Lord Davies of Stamford]

This is a very difficult situation and I am very much in sympathy with the noble Lord’s amendment, but I wonder whether he would address the one reservation and concern on which I imagine I may not be alone: if we cease to charge for HIV treatment and diagnosis, as the noble Lord suggests, that could constitute an incentive for people to come to this country to exploit that possibility, given what he has already said about the expense and difficulty of receiving that treatment. Indeed, it could be an incentive for people to deliberately overstay their visa or become illegal immigrants to this country.

[Lord Fowler]

I will obviously deal with that issue, because it is crucial. If the noble Lord would be as patient as I have been in waiting for the opportunity of this debate, then all will be revealed to him.

It is probably the black African population who are most affected by the current policy, yet it is here that the Government’s policy of prevention has been most concentrated. We need to remember that late diagnosis of HIV, leading to the late start of treatment, is one of the major causes of serious ill health and early death. Yet, here we are, pursuing a policy that deters treatment and testing, from which the only logical result can be that late diagnosis. If you want a monetary argument, you have to add the additional costs of treatment for that individual plus the cost of those who may be further infected. On the face of it, it is not a prudent financial policy.

Why do we therefore pursue such an apparently reactionary and foolish policy? Here I come to the noble Lord’s point. Only one argument has ever been put forward. It is that if the rule were to be lifted there would be a danger of “health tourism”. This is an argument based entirely on assertion. As far as I can see, there is no evidence whatever for it. My Select Committee looked at this point, as the noble Lord will know because he has read the committee’s report on this matter. The same rule is not applied in Scotland, Wales or Northern Ireland—either as policy or in practice. Has there been an influx of those suffering with HIV to Edinburgh, Cardiff or Belfast? Of course not. My Select Committee could find absolutely no evidence in this respect. If there is such evidence, I invite the Minister to give it or any other evidence that she may have on health tourism, because, so far, it has never been put.

The crucial point against the law in England is that it is not enforced in any event. It is incapable of being enforced. The patients are usually destitute. A hospital gives the treatment. Then it pursues the charges. Then it finds out that the patient cannot pay and it writes off the whole amount. As one of our witnesses said, it is a constant circle of nonsense. That is the position that is being defended at present.

I have not yet heard any sensible defence of the present position. As a matter of principle, Parliament should not pass laws which cannot be enforced; and as a matter of practice, Parliament should not pass laws which add to the problems of public health and do not reduce them. If the Government are serious about their intent to put prevention first, this law should be repealed. I beg to move.

[Baroness Gould of Potternewton]

My Lords, I am very pleased to support the amendment. I was also very pleased to see that, in the response to the HIV Select Committee report, the Government are reviewing their current policy, which excludes some people from HIV treatment. The HIV Select Committee was absolutely right to say that it is wrong to charge anyone with HIV treatment and care.

For me, it is not only a question of health, it is a question of humanity. I find it incredible that this position survives. I have to say this with great regret, because I spent a long time trying to persuade my Government that something should be done about this, with little success. The argument was made very much in the way that my noble friend said about health tourism. I hope, although I am not clear from the words of the Minister in replying to the debate in December, whether that is still in their thinking. She said,

“we must avoid creating any incentive for people to come to the UK for the purpose of free HIV treatment”.—[Official Report, 1/12/11; col. 492.]

As my noble friend Lord Fowler said, there is no evidence to support the claims of HIV health tourism if the charging is ended. In 2008, the National Aids Trust produced a report on the myth of HIV tourism, demonstrating that such claims are wholly unfounded. Data from the Health Protection Agency show that the average time between a migrant arriving in the UK and an HIV diagnosis is almost five years. That is an awfully long time for someone coming on the basis of health tourism. For me, it is the absolute clincher as to why this is all such nonsense. Further, government reports have suggested that asylum seekers have no prior detailed knowledge of the UK's asylum policies, welfare benefits or entitlement to treatment. That would apply equally to HIV.

HIV charges, as the noble Lord, Lord Fowler, said, are not applied in Scotland, Wales or Northern Ireland. We would have seen some movement from London or anywhere in England to those nations if people wanted to access free treatment. If individuals do not move from London to Edinburgh to access free treatment, it is difficult to believe that they move from, say, Harare to London, for that reason. Another reason makes that claim somewhat ludicrous. A report published yesterday by the HPA shows that 5.9 per cent of TB patients are HIV-infected. TB treatment is free for those people; but the HIV treatment is charged. I do not know how one differentiates between those treatment costs, and, again, it just shows how stupid the position is.

In addition, since 2004, when the charges for HIV treatment were first implemented in England, there has been a 13-fold increase in access to anti-retroviral treatment in low and middle-income countries around the world, with sub-Saharan Africa seeing the greatest increase in the absolute numbers of people receiving treatment. ART coverage of all those who need it now stands at nearly 50 per cent in those regions and continues to increase. It is most unlikely that those able to purchase a flight to the UK will be unable to purchase ART in their own country. Having HIV does not in itself prevent removal from this country if a person is in breach of the Immigration Rules, as was established at the European Court of Human Rights in the case of N. Therefore, there is no reason for someone who knows they have HIV to migrate to the UK believing that their HIV-positive status will secure settled residence and ongoing access to treatment.

However, there is another criterion which, again, I had not appreciated until yesterday. A situation arises from the new Immigration Rules that have just come into force which further entrenches the way that HIV treatment charges deter African men and women in particular from finding out about their HIV status or going for treatment. Now, anyone with an unpaid NHS debt of over £1,000 will routinely have further immigration-related applications, whether to remain or for re-entry, refused. In the past, it was possible to encourage people coming forward for testing and treatment on the basis that it would have no impact on their immigration status. That is no longer possible as, if you are not entitled to free HIV treatment, your immigration status can be affected. As the noble Lord, Lord Fowler, said, these people are destitute and do not have the money. As a consequence of this change, they could now be removed from this country, which is something that never happened before.

There is also the whole question of costs. It seems to me that not removing charging continues to increase the cost to the NHS arising from HIV treatment charges. Ending charges for HIV treatment will actually save the NHS money by preventing new HIV infections and by identifying HIV early, when it can be effectively treated, so reducing the need for hospitalisation and other costly care when people with HIV become seriously ill. Reducing the level of undiagnosed HIV and increasing the proportion of people with HIV on effective ART will reduce the number of HIV transmissions occurring in the UK. I think that the noble Lord, Lord Fowler, said that preventing one onward transmission of HIV saves between £280,000 and £360,000 in treatment costs over a lifetime. People who are diagnosed late or who do not access treatment become seriously ill and will often require expensive in-patient care—a week’s stay costing between £15,000 and £25,000, and there may be many repeat visits to hospital. Surely it is cheaper to provide no deterrents to early testing and treatment.

It is sound common sense to remove this costly and inhumane restriction from the NHS (Charges to Overseas Visitors) Regulations. I hope that perhaps, not today but when the review is over, we will hear sound common sense from the Government.

[The Lord Bishop of Newcastle]

My Lords, I strongly support the amendment, and I shall be very brief. I believe that it is high time to put an end to the singling out of HIV as the only infectious disease which is subject to treatment charges. I believe that exempting HIV from charges is necessary to save lives, to protect public health and to safeguard NHS resources. Ensuring that everybody who needs treatment receives it is the key point. Charges deter people from accessing treatment and from testing for HIV. Why is it that HIV is the only serious communicable disease for which treatment is not provided free of charge? It is inconsistent and confusing, and undermines efforts to prevent further infection. Removing the charges will prevent many premature deaths in the United Kingdom, and will reduce long-term costs and transmission of HIV. This is why I hope the Minister will look very kindly on this amendment.

22:00

[Lord Hunt of Kings Heath]

My Lords, I congratulate the noble Lord, Lord Fowler, and my noble friend Lady Gould, on their perseverance. I think they have been waiting for about three days for this amendment. Clearly, they have pointed out the anomaly in the law and the perverse incentive under the current situation; in particular, the fact that if charges result in no treatment, there is danger to the individual and risk of spreading the disease, and that knowledge of charging prevents people from coming forward for testing and treatment. As my noble friend Lady Gould has just said, the contrast with other infectious diseases such as TB clearly points this out as an anomaly.

I too was interested in the answer to the question about health tourism. We have been given a pretty convincing response. The experience of Scotland, Wales and Northern Ireland is very clear. I also found very interesting the question of cost against benefit. It appears that very little money is raised by the charge, but that it is a disincentive for people to come forward. If they do not come forward, the cost to the system in the end is much greater. It seems to me a pretty convincing argument. I know there is a review, but we encourage the noble Baroness to anticipate that review and give good news to your Lordships tonight.

[Baroness Northover]

My Lords, I am very grateful to my noble friend Lord Fowler for the constructive way in which he has raised this amendment and I pay credit, as others have to done, to his continuing, enormous commitment to improving HIV services for all. I also pay tribute to other noble Lords who contributed to this debate and to this long battle over many years. I will commit to having considered by Report the arguments and proposals set out by my noble friend.

The Department of Health is indeed currently concluding an internal review of the current policy to charge some people for HIV treatment. We will be concluding this review by the new year, including any discussions with the other government departments which will have an interest. The review has considered many of the issues raised by noble Lords today. These include the increasing evidence of the public health benefits of early diagnosis and the role of HIV treatment in reducing onward transmission of HIV.

In the UK, around 25 per cent of people with HIV are unaware of their infection, which means they are unable to benefit from effective treatment and risk transmitting HIV to others. Promoting HIV testing to reduce undiagnosed HIV and late diagnosis remain important priorities for HIV prevention. We would be very concerned if our current policy were to deter people from testing for HIV, even though testing has always been free of charge to all. Those already entitled to free HIV treatment and care include asylum seekers and, from 1 August this year, failed asylum seekers receiving specific support packages from the UK Border Agency. Further, failed asylum seekers who are already receiving HIV treatment when their asylum application and any appeal fails continue to receive free HIV treatment up to the point that they leave the country, regardless of whether or not they receive the UK Border Agency support.

However, I acknowledge that a small number of vulnerable people will not be covered by the current exemptions and they may be deterred from accessing HIV testing services because they cannot afford treatment or are confused about the entitlement to free NHS treatment.

The world has made huge progress against the HIV epidemic in the 30 years since AIDS was first identified. Globally, new infections have fallen, and nearly 7 million people are on ARV treatment. While there is currently no significant evidence of health tourism in relation to HIV, in considering any changes to our current policy we must make sure we that we do not create an incentive for people to come to the UK for the purpose of free HIV treatment, without compromising our overriding responsibility for public health. I stress again that our overriding responsibility is to public health. As my noble friend Lord Fowler said, the Select Committee on HIV examined the issue of health tourism.

In conclusion, the department's review identified and considered many of the issues raised today. We are now looking urgently at how these can best be addressed. I assure my noble friend that we will provide a clear position in time for Report. I hope that in the light of this he will feel able to withdraw his amendment.

[Lord Fowler]

My Lords, I thank the Minister for that very sympathetic and understanding reply. We obviously understand that a review is taking place and take comfort from the fact that it will be complete by Report. She will have noticed that support has come from all parts of the House. I think that it would have come from the Liberal Democrats; I know that they share this view. Therefore, every party, including the Bishops' Bench—for which I am very grateful—is represented. Perhaps I may say that the House has left its visiting card on the issue. We look forward to Report and to the statement of policy that I am sure will come by then. Given the Minister’s assurance, I beg leave to withdraw the amendment.

Amendment 260E withdrawn.

House resumed.

House adjourned at 10.07 pm.