Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Colwyn)
My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes or for a time at my discretion if there are more Members than usual.
Public Bodies (Abolition of the National Endowment for Science, Technology and the Arts) Order 2012
Baroness Wilcox
That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of the National Endowment for Science, Technology and the Arts) Order 2012.
Relevant documents: 51st Report from the Merits Committee, 39th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, let me start by reassuring noble Lords that, while this order will abolish the National Endowment for Science, Technology and the Arts as a non-departmental public body, NESTA’s future is secure. It is being reconstituted as an independent charity with the National Lottery endowment transferred to a separate charitable trust. There is no anticipated negative impact on NESTA’s work as a result of these changes.
NESTA was established by the National Lottery Act 1998 with an endowment from the National Lottery, currently valued at £321 million. Over the past 14 years, it has promoted innovation through a combination of activities. In recent years, its focus has been on delivering practical programmes, such as the Big Green Challenge, providing early stage capital to innovative companies and carrying out research into innovation.
NESTA’s future was considered as part of the Government’s public bodies reform programme and our commitment to reduce the number and cost of quangos. NESTA performs a valuable function—it delivers highly regarded programmes and research—and we wanted to see its activities continue, but it did not need to remain a public body. Therefore, the Government put forward a proposal to abolish NESTA using the powers of the Public Bodies Act, which, as noble Lords know, received Royal Assent in December.
BIS launched a consultation in October last year on the proposal to change NESTA’s status. Some 85 per cent of responses agreed with the preferred policy option as the most suitable choice for NESTA. Furthermore, more than 90 per cent of responses agreed that NESTA would benefit from increased independence from government. BIS carried out a full impact assessment of the transition and it is estimated that there will be a net benefit over 10 years of £1.84 million.
I should like to give noble Lords more details about the changes once NESTA is abolished as a public body. It will be reconstituted as an independent charity with the National Lottery endowment held in a charitable trust. Both the charity and the charitable trust have already been registered with the Charity Commission and the objects of the charity are sufficiently broad to allow NESTA to continue with current activities. If the noble Lord, Lord Warner, were here, I am sure that he would be pleased to note that, as he asked during the passage of the Public Bodies Act whether NESTA’s activities would be accepted as a charitable purpose by the Charity Commission.
All property and rights relating to the National Lottery endowment will be transferred to the charitable trust. All NESTA’s other property and rights, and its staff, will be transferred to the independent charity. The new NESTA charity is the sole trustee of the charitable trust and will apply returns from the endowment to advance the charitable objects of the trust. The NESTA charity also plans to obtain income from other sources, which it can use for its wider objectives. A final transfer scheme will be laid in the House once the order is made and the transfer will take place at the same time as NESTA is abolished. Subject to parliamentary clearance, the changes will come into effect on 1 April.
In order to maintain assurance for propriety of the way in which the National Lottery endowment is used, the Government are currently appointing a protector of the trust. The protector will have a fiduciary duty to ensure the integrity of the administration of the trust and the propriety of its procedures. He or she will be able to report any matters of serious concern about the way the endowment is being used to the Charity Commission and to Ministers. This model is already in use by the Millennium Awards Trust.
Following its change of status, NESTA will remain a UK-wide organisation and I understand that it is keen to increase its level of activity in Scotland, Wales and Northern Ireland. As required by the Public Bodies Act, we have obtained the consent of the Northern Ireland Assembly, and the Scottish Parliament will be considering our order on Wednesday. We have also consulted the Welsh Government and continue to keep them informed of progress. I commend this draft order to the Committee.
Lord Razzall
My Lords, I welcome the explanation given by the noble Baroness. Of course, I fully support this proposal, as does, it appears, virtually everybody who has been consulted. My one question relates to the retention of the endowment within the public sector. As I understand it, the Government do not want to transfer the endowment out of the public sector, as the endowment is held more in less in government securities and, if those were to be transferred out, that would lead to an increase in the public sector net debt. Could the noble Baroness assure me that the retention for national accounts purposes of the endowment in the public sector does not imply any form of control of those assets by the Treasury? Clearly, the whole purpose of doing this is to get this out of the public sector entirely. Will she assure me that this is purely a technicality and that there will be no attempt by the Treasury to control that flow of money?
Baroness Hayter of Kentish Town
My Lords, the central question facing us on this issue is to ensure that, after replacing NESTA with a charity, it will continue with NESTA’s fine role in helping to grow our innovation economy and have an appropriate level of public accountability and scrutiny, which are not the same as diktats from the Treasury.
NESTA was one of the very successful measures introduced by the last Government to improve the translation of new research ideas into business and jobs. It used lottery money, which is, after all, the people’s money, to make the UK more innovative. As part of that, NESTA forged some interesting partnerships between innovators and policy-makers. As well as the investors, community organisations and educators have been there from the start. Some £50 million of the £320 million of the endowment that the noble Baroness mentioned was invested in start-up businesses. NESTA became the UK’s single biggest seed capital investor, which is something that we probably all applaud. That meant investing in life sciences and the healthcare sector, diagnostics, devices and biomaterials. These went into areas such as immune regulation, using some interesting new research and translating it very closely to patient use, a new generation of nerve repair from an innovative material and even being able to find a means to regrow teeth where they have been lost.
That work continues through the running of programmes with health service providers to improve the way that patients can work with doctors in managing long-term healthcare and, in a different sphere, through helping arts and cultural organisations to develop new business models and reach new audiences. The work also continues through developing with local authorities ways of looking after the elderly and young people and funding new ways to increase the giving of time, skills, assets and money through the Innovation in Giving Fund—something that I think we all welcome. We hope to see NESTA’s work continue to develop, but it has also played a role in encouraging high-flying early-stage researchers to be aware of the possibility of working across other disciplines and communicating science and its innovations to the public. I hope that the Minister will assure us that that work will continue.
As the Public Bodies Act was going through, I never accepted the necessity of moving NESTA from the public sector. I thought that that was being done simply to add another tick to the list. However, as it is now about to become a charitable company limited by guarantee, I hope the Minister will reassure us that it will not be caught by a lot of Charity Commission rules which were developed for a different purpose; that is, to protect normal beneficiaries of normal charities. We hope that it will not therefore have to answer a lot of questions designed for a different reason. Perhaps more importantly, we are about to lose some public accountability over the expenditure of money which has been raised from the public. The Minister mentioned the protector, which is an interesting name. It seems that the protector will ensure that the money is spent only on charitable aims and that NESTA’s procedures have integrity—I think the Minister used that word—but the protector will not be able to ask whether better things could have been done or other projects helped. At the moment Parliament can ask those questions about how NESTA is fulfilling its role and about its record, priorities and effectiveness. It seems to me that this accountability will now disappear. Therefore, the population whose money was spent on the lottery and then given to NESTA will have no say over the new charity via their elected MPs, this House or the Government. I hope that the Minister can reassure us on that point.
I am delighted—I have a feeling that the Minister will agree with me on this—that half the new trustees are women, which is an improvement on the fact that 100 per cent were men when the body was in the public sector, so some good things are happening. However, who in the future will appoint those charitable trustees? Will there be any public accountability over the decisions that those trustees will take on the use of the endowment? As I say, I regretted the original decision that was taken in this regard but we have probably ended up with the best possible outcome. However, I hope that the Minister will reassure me as regards public accountability and how the charitable trustees will be appointed in future. I also hope that she will reassure us that she will encourage the Government to use NESTA as a vehicle for promoting innovative ideas. It will be much better placed to do that outside the public sector. I hope the Government will give it every encouragement to do that.
Lord Young of Norwood Green
My Lords, I will not repeat what was said by my noble friend Lady Hayter, or by the noble Lord, Lord Razzall, so I shall be brief. As my noble friend said, we are discussing a casualty of the quango bonfire. Given the praise that the Minister heaped on NESTA, I wonder: if it ain’t broke, why did we bother to fix it? However, that question was covered by my noble friend.
I have a couple of points. The Minister spoke of staff being transferred. Am I right in assuming that they will be transferred under TUPE arrangements? I see a nod: that is good. I, too, am interested in the question of accountability and found the title of “protector” interesting. It has a Cromwellian overtone, so I hope that it will not go to his or her head. My noble friend Lady Hayter made a point about the fiduciary duties of the protector to ensure that the charitable trust performs its duties and to report to the Minister. I, too, would be interested in the general activities—apart from ensuring financial probity—of encouraging innovation and investment in the kind of areas to which my noble friend referred. If a report is made by the protector to the Minister, will we be able to question the Minister on it? I would also be interested to know how trustees will be appointed in future. I will not comment on the more technical points made by the noble Lord, Lord Razzall, and await with interest the Minister’s response.
Baroness Wilcox
I thank noble Lords for their consideration of the order and will try to answer the questions asked by my noble friend Lord Razzall, by the noble Baroness, Lady Hayter, and by the noble Lord, Lord Young. I can assure my noble friend that there will be no attempt to control how the endowment is spent by the Treasury once the transfer scheme comes into effect. I hope that he will find that answer reassuring.
The noble Baroness, Lady Hayter, asked several questions. I will try to answer most of them. Of course I agree—as I did in my earlier speech—that NESTA has done a wonderful job. The idea is to set it free to be able to do even more. Its objectives were registered with the Charity Commission and the Office of the Scottish Charity Regulator. Perhaps the noble Baroness did not ask about the Scottish Charity Regulator, so I have given her a bit more information than she asked for—but it is jolly nice to know these things.
In answer to the noble Baroness’s next question, once NESTA is reconstituted as an independent charity and trust, it will continue to support innovative companies, both as part of a diversified portfolio invested for financial return and through grant funding and programme-related investment in line with the charitable objectives that have been cleared. I hope that the noble Baroness will accept that reassurance.
In answer to the noble Baroness's third question, the new NESTA trust and charity will be subject—as is the case with all charities—to charity law and charity accounting rules. There are currently four trustees of the charity. The appointment of trustees to the charity will be a matter for the charity itself. We understand that the NESTA charity intends to appoint a number of new trustees in April 2012. It has established a nominations committee to consider the skills and experience required for the board, and is currently running an open applications process for new trustees. There will be no government involvement in that.
I am as delighted as the noble Baroness that half the charitable trustees are women. We will see if that continues—or perhaps it will finish up as an all-women board, whereupon the men will start to complain that they are not getting in anywhere. However, we will deal with that when we get to it. She mentioned that the previous Government had done a lot of work with NESTA, and we have been able to take on a concern that is going extremely well. We think that it will be very happy with this new move.
The noble Lord, Lord Young, asked about the protector—like him, I immediately thought “Cromwell” when I heard the word. There are no plans for the protector’s report to be presented to the House. The Government will continue to collaborate with NESTA in the future. As I said, there is a previous organisation; the model is already in use by the Millennium Awards Trust. We are watching carefully how that runs.
NESTA promotes innovation and creativity to help tackle social and economic problems, and provides the independent, well informed commentary on innovation policy that we have been asked should continue. However, after consideration of the conditions set out in the Public Bodies Act, the Government have concluded that NESTA does not need to be in the public sector to carry out its work. Abolishing NESTA as a non-departmental public body and reconstituting it as an independent charity and charitable trust will give NESTA greater freedom to pursue its valuable activities, which noble Lords have praised this afternoon.
I thank noble Lords for their contributions to this interesting debate, and I commend this draft order to the Committee.
Companies Act 2006 (Amendment of Part 23) (Investment Companies) Regulations 2012
Baroness Wilcox
That the Grand Committee do report to the House that it has considered the Companies Act 2006 (Amendment of Part 23) (Investment Companies) Regulations 2012.
Relevant documents: 41st Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, investment companies can benefit from a special distributions regime in the Companies Act 2006 if they satisfy conditions. These draft regulations amend those conditions to ensure that they remain in step with tax rules, which have recently been amended.
Investment companies are professionally managed, pooled, risk-spreading investment vehicles. They are publicly listed and invest in a diversified portfolio of shares, securities or other assets with the aim of providing a return to their investors.
These draft regulations amend the Companies Act to ensure that company law and tax rules work in harmony. Part 23 of the Companies Act regulates distributions by a company to its shareholders. It aims to protect the company’s creditors by ensuring that funds are available to meet the company’s debts in the event of it winding up. The most common form of distribution is the payment of a dividend.
The Companies Act allows investment companies to benefit from more relaxed distribution rules compared with other public companies when making distributions out of revenue profits. Investment companies do not have to comply with the net asset test, which permits a public company to make a distribution to its shareholders only if the amount of its net assets is at least equal to its called-up share capital and those reserves not available for distribution. Instead, an investment company must meet a condition that requires the company’s assets to be at least equal to one and a half times the aggregate of its liabilities to its creditors.
This concession for investment companies takes partial advantage of an option in the second company law directive. It recognises that during periods of falling share prices, investment companies might not be able to pay dividends to their investor-shareholders if required to satisfy the net asset test. This would undermine the purpose of these companies.
These draft regulations allow more types of investment companies to qualify for the relaxed distributions regime. It simplifies some of the conditions to ensure that they are compatible with the recent changes to the tax rules. They remove a restriction that prohibits investment companies from paying dividends out of capital profits. Investment companies, like other plcs, will be able to pay dividends out of capital profits and still benefit from the relaxed distribution rules. This change will allow the tax rules to work as intended.
The amended tax rules may require investment companies to distribute a proportion of their capital profits if they are to benefit from the corporation tax exemption. BIS, HMRC and the Treasury issued a joint consultation document on 27 July 2010 and a summary of responses was published on 9 December 2010. The draft regulations were published on the BIS internet site on 4 November 2011. A full impact assessment has been completed, stating that these regulations have a zero net cost to business. While we have been unable to monetise the benefits to business, the investment industry considers these amendments to be beneficial. Companies choose to opt in to the investment companies regime and will do so only if they consider that the benefits exceed the costs.
In summary, these regulations amend the existing rules for investment companies to broaden the definition of “investment company” and remove unnecessary restrictions. They are necessary if the recent changes made to the tax rules for investment companies are to have their full effect. This is a deregulatory measure that has been warmly welcomed by the investment industry, and I therefore commend it to the Committee.
Lord Razzall
My Lords, I welcome these regulations. It is clearly not sensible that HMRC should propose amendments which, unless the Companies Act is changed, cannot be implemented. I have just one question, which may be difficult to answer. It is suggested that the objective of HMRC is to try to increase the number of investment trusts that become domiciled in the UK in order to take advantage of these changes in company law and tax law. Page 8 of the impact assessment states that,
“there are 200 registered as ‘investment companies’ under the Companies Act”,
but that there are 320 quoted investment companies, which suggests that there is the potential for an additional 120 companies to register. Is that right? If the objective is to get companies that are quoted on other exchanges to register here, it could be presumed that a limitless number of companies might take advantage of these rules. I assume that the 120 companies referred to here are only UK companies, and it would be difficult to estimate the potential if that is HMRC’s objective.
Lord Young of Norwood Green
I enter this debate with some trepidation because it is certainly not my favourite subject. I listened carefully to the Minister throughout her complex analysis of the benefits, but I am not sure that I fully comprehended it, so I apologise if I have to call for a bit of reiteration. I have two questions to put. The first is on risk-spreading investment vehicles. Given the problems that we have had with risk and financial collapses, is the Minister satisfied that the requisite safeguards are in place in these companies? Secondly, can the Minister explain in a little more detail precisely what benefits, following the changes to the corporation tax regime, will arise from realigning company law in this way?
Baroness Wilcox
My Lords, I agree that it is a complicated subject—it is complicated to read. Consistency in regulation is essential if we are to provide a framework for companies to operate within and thrive. These regulations remove conflicting regulatory requirements between the Companies Act and corporation tax rules.
In answer to the question asked by the noble Lord, Lord Razzall, 320 investment companies are UK-domiciled. He is correct that we do not know how many companies are registered abroad. I am afraid that is the answer that I can give at the moment, but if the noble Lord wishes to take this up with me—
Baroness Wilcox
The noble Lord assumed correctly, of course, which is excellent.
In answer to the noble Lord, Lord Young of Norwood Green, tax issues have been debated in the House of Commons and are now in place. I have not brought these details with me but I would be very happy to provide the noble Lord with those. I do not think that those details will make a fundamental difference to what we are asking for today. I hope he will bear with me on that. The noble Lord also asked about the corporation tax regime, which gives exemption to investment companies from corporation tax on their chargeable gains if they satisfy conditions.
In parallel, investment companies and their investor-shareholders will benefit from the removal of an unnecessary restriction. Investment companies will be able to pay dividends out of capital profits without losing their ability to benefit from the special distributions regime in the Companies Act.
Unless there are any further questions—
Lord Young of Norwood Green
I asked about risk. What are the safeguards in relation to assessing risk?
Baroness Wilcox
We do not consider that safeguards are compromised for risk-spreading vehicles. We regard this as a safe vehicle with no more risks than before. I think that is correct.
These regulations make the necessary amendments and I therefore commend them to the Committee.
Industrial Training Levy (Engineering Construction Industry Training Board) Order 2012
Baroness Wilcox
That the Grand Committee do report to the House that it has considered the Industrial Training Levy (Engineering Construction Industry Training Board) Order 2012.
Relevant documents: 42nd Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, I have a fairly lengthy speaking note, which I have tried to minimise, but I hope that noble Lords will bear with me as I go through the main details of the orders.
The orders seek authority for the Construction Industry Training Board and the Engineering Construction Industry Training Board to impose a levy on employers in the industries they cover. The two industrial training boards—ITBs—whose levy orders we are considering are non-departmental public bodies that operate under the provisions of the Industrial Training Act 1982. The boards are employer-led and their role is to ensure that the quantity and quality of training is adequate to meet the needs of their industries. They provide a wide range of services, including setting occupational standards, developing vocational qualifications, delivering apprenticeships and paying direct grants to employers who carry out training to approved standards. The Industrial Training Act 1982 permits an ITB to raise levies on employers so that the costs of training are shared more evenly between companies in the industry. The orders before us provide evidence that, despite the current economic difficulties, these two industries will continue to invest in the skills of their workforces in the coming years.
The orders give effect to proposals submitted to us for levies to be collected by the CITB in 2012, 2013 and 2014, and for the ECITB in 2013. Both involve the imposition of a levy which is estimated to be in excess of 1 per cent of emoluments, essentially wage costs, for some employers. The orders can be made only if the Secretary of State is satisfied that the amount of levy is appropriate to the circumstances, that the proposals are necessary to encourage adequate training in the industry, and that they have the support of more than half the employers who together are likely to pay the majority of the levy. The Secretary of State is satisfied that these conditions have been met.
The Act also requires ITBs to include proposals for exempting small employers from the levy. Both orders therefore provide that small firms will be exempt if their expenditure on payroll and sub-contract labour is below a certain threshold that the industry considers to be appropriate. Those firms are still able to benefit from grant and other support from ITBs, and many of them do so.
In the Construction Industry Training Board order before the Committee, the CITB proposes that levy rates should remain unchanged from those approved by the House in 2009; that is, 0.5 per cent of payroll in respect of direct employees and 1.5 per cent of net expenditure on sub-contract labour. The rationale for the higher levy rate on sub-contract labour is that most training is carried out by employers with a direct labour force, mainly smaller employers. For the larger employers who use more labour, only sub-contractors are not usually directly involved in training. The higher levy rate on sub-contract labour is intended to share out the costs of training more equally across the whole industry.
As I said earlier, small firms are not required to pay the levy, and therefore employers whose combined payroll and net expenditure on sub-contract labour is less than £80,000 will not have to pay it. Around 50 per cent of relevant employers fall into this category. In addition, with the support of industry, the CITB has tried to mitigate the impact on employers who are just above the small firm threshold by applying a 50 per cent reduction to the levy payable if an employer’s expenditure on payroll and sub-contract labour is between £80,000 and £100,000. Over three years, the CITB’s proposals are expected to raise between £380 million and £390 million on levy income.
In the Engineering Construction Industry Training Board order, the ECITB also proposes to make no changes to its levy rates. The rate for site employees is 1.5 per cent of total payroll and net expenditure on sub-contract labour. Employers who spend £275,000 or less on site employees will not have to pay the levy. The rate in respect of offsite employees, often referred to as “head office” employees, is 0.18 per cent of total payroll and net expenditure on sub-contract labour. Employers who spend £1 million or less in respect of offsite employees will not have to pay the levy. Of all the establishments which are considered to be leviable by the ECITB, it is expected that around 35 per cent will be exempted from paying the levy. The ECITB covers a much smaller industry than the CITB, so the one-year proposal is expected to raise around £20 million in levy income.
The Committee will note that the CITB levy order covers a three-year period, while the CITB order covers only one year. The Industrial Training Act requires ITBs to submit proposals “from time to time”. Those proposals may provide for levies to be imposed for a period of up to three years. In 2009, both orders were made for three years. This time, the ECITB has proposed a one-year levy order because, in view of the current economic conditions, employers consider that they should retain flexibility on the issue of future levy rates. It is anticipated that next year the ECITB levy order will cover a two-year period with the intention of realigning the two orders, so that from 2015 both will again cover a three-year period.
The Committee will know from previous debates that the CITB and the ECITB exist because of the support they receive from employers and employer interest groups in their sectors. As I indicated earlier, there is a firm belief that without them there would be a serious deterioration in the quantity and quality of training in these industries, leading to a deficiency in skill levels. The boards’ own annual employer surveys continue to demonstrate strong support for the principle of a levy system. These draft orders will enable the two boards to continue to carry out their vital training responsibilities, and I ask the Committee to approve them. I beg to move.
Baroness Turner of Camden
My Lords, I thank the noble Baroness for the very detailed introduction. I have only one or two very minor points to raise on it.
First, when I was a member of the Equal Opportunities Commission we had a very successful campaign, known as the WISE campaign, which was conducted under the leadership of the noble Baroness, Lady Platt, who is herself an engineer. At that time I was a full-time union official and we co-operated with the ECITB—in fact the training board had always had a very good reputation with unions—and with the EOC in order to get women into the study of engineering. At that time it was not felt to be a suitable career for women, and that sort of feeling is still around. I would therefore like to know whether any special emphasis is being put on something like the WISE Campaign in view of the changes to the levy now being imposed so far as the training board is concerned.
As for the CITB, in some of the House’s debates on employment conditions and rights I have often been bothered about the fact that the construction industry unfortunately still has a very bad record on health and safety. I would like to know whether the Minister feels that the levy which is to be applied will be sufficient, and whether sufficient emphasis will be placed on the whole issue of health and safety in construction. I think that it is a very important issue at the present time.
Lord Razzall
My Lords, these orders are relatively straightforward. I have two questions for the Minister.
First, I note with interest that in the first consultation only 52 per cent of all levy-paying employers were in favour and in the other one only 59 per cent of the levy-payers were in favour, although in each case they represented slightly more of the estimated payments. Is the noble Baroness satisfied that that is sufficient approval for these proposals?
Secondly, there are quite detailed proposals for minimising the impact of these levies on small businesses. The various Explanatory Statements simply state what the proposals are regarding the exemption for small businesses, which the noble Baroness explained in her opening remarks. Is she satisfied that those exemptions go far enough?
Lord Young of Norwood Green
My Lords, I, too, thank the Minister for her explanation of these orders. Generally speaking, we welcome the levy. Indeed, if it applied across all industry we might find another means of ensuring that we had more training and more apprenticeships, given that only 4 per cent to 8 per cent of employers actually employ apprentices. I welcome the fact that despite difficult times a significant majority of both the engineering construction industry and the construction industry still believe that the levy is a valuable and viable way forward.
I certainly concur with the points made by my noble friend Lady Turner in relation to women in engineering. Significant attempts are being made by companies to ensure that more women are involved in engineering, and in getting those women who are involved to go to schools and spread the word that this is an industry that provides useful employment and good-quality careers. The same can be said of construction. We are gradually beginning to see more women. I do not know if my noble friend Lady Turner has had the opportunity to visit the Olympic site and see the apprentices there, but it was certainly good to see more female apprentices involved in the construction stages.
I do not have any additional questions. I did not draw the same conclusion from the consultation outcome as the noble Lord, Lord Razzall, because when I read through it I felt that they made quite strenuous efforts to ensure that they had a widespread consultation. They recognise that a declining number of employers are involved in trade associations so they have gone for a wider survey. I think that the surveys are valid and can be justified. I understand why there has been only a one-year levy ordered, but I welcome the fact that both those levies will be realigned.
Baroness Wilcox
My Lords, I thank noble Lords very much indeed for the short debate that we have had. As soon as I saw the noble Baroness, Lady Turner, stand up, I almost saw the noble Baroness, Lady Platt, standing up with her because when I first came into this House they were doughty campaigners, and still are. The noble Baroness, Lady Turner, may be interested to know that the noble Baroness, Lady Platt, has stayed in contact even though she has to be at home most of the time and has written most encouraging letters throughout her absence, so she is with us in spirit if not in body.
Although the number of women in this field is increasing slowly, the CITB recognises that the number of women employed in construction remains disproportionately low, and it is directly addressing this issue by actively promoting equality and diversity. It was awarded the equality standard in 2011. Gaining the equality standard is a first for a sector skills council. It is also the first time that an organisation working across the three nations has achieved that standard, so things are improving, although there is more to do.
The noble Lord, Lord Young, kindly mentioned the apprentices at the Olympics site. I have been there and met them. It is lovely to see young girls having the opportunity to take on careers which are stretching them in every way. Both industries are health and safety-intensive industries, as the noble Baroness, Lady Turner, said. We have been told by both organisations that offering excellent training and following rigorous standards is a priority, so they realise that there is further to go in that regard. It is good to hear them say that themselves.
It is important that the levies do not place burdens on small firms, as I am sure my noble friend Lord Razzall will agree. That is why we have the exemptions. As I said earlier, 50 per cent of small firms involved in construction will not have to pay the levy. My noble friend asked about the surveys. I think that they were justified. Getting people to take part in surveys nowadays is not the easiest thing, but given the breadth of this issue, I think that a figure of some 52 per cent or 59 per cent is good. I am delighted that the noble Lord, Lord Young, was happy to welcome that.
The combined figures from associations and the sample showed 85 per cent employer support for the levy, so that looks good. The proposals before the Committee relate to the construction and engineering construction industries, as we have just said. It continues to be the collective view of employers in these two industries that training should be funded through a statutory levy system to secure a sufficient pool of skilled labour. I commend these orders to the Committee.
Industrial Training Levy (Construction Industry Training Board) Order 2012
Baroness Wilcox
That the Grand Committee do report to the House that it has considered the Industrial Training Levy (Construction Industry Training Board) Order 2012.
Relevant documents: 42nd Report from the Joint Committee on Statutory Instruments.
Postal Services Act 2011 (Disclosure of Information) Order 2012
Baroness Wilcox
That the Grand Committee do report to the House that it has considered the Postal Services Act 2011 (Disclosure of Information) Order 2012.
Relevant document: 42nd Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, the two orders in this group are made under the Postal Services Act 2011, which was enacted in June of last year. The overall purpose of the Act is to secure the future provision of the universal postal service. The vast majority of the provisions in the Act came into force on 1 October 2011, including those in Part 3, which covers postal regulation. Part 3 enabled a number of changes to be made to the regulatory framework for postal services, including the transfer of regulatory responsibilities from Postcomm to Ofcom. The two orders before the Committee support the statutory functions of Ofcom as the regulator for postal services. Both extend to Ofcom powers that were previously available to its predecessor, Postcomm, under earlier legislation. I will address each order in turn, starting with the Postal Services Act 2011 (Penalties) (Rules for Calculation of Turnover) Order.
In order to regulate effectively, Ofcom, like any regulator, needs powers to enforce its decisions. The Postal Services Act mirrors the Communications Act in relation to compliance and enforcement notifications, penalties, urgent cases, serious and repeated infringements, suspension or restriction of the entitlement to provide a service, breach of directions and civil enforcement. This is a system that is already in place for the wider communications sector, and with which Ofcom has considerable experience. It is required because Ofcom may at some point need to take action against a postal operator for breach of a regulatory requirement.
There is a range of steps that Ofcom may take if a person is in breach of a regulatory requirement, moving from notification through enforcement notification to imposing penalties. The maximum penalty must not be more than 10 per cent of turnover and must be appropriate and proportionate to the contravention that it is designed to address. The order sets out the rules by which Ofcom must calculate turnover for the purpose of imposing such penalties.
The schedule to the order establishes the general rules for the calculation of turnover for the purpose imposed by Ofcom. Rule 1 sets out that turnover shall be calculated in conformity with accounting practices and principles that are generally accepted in the UK. Rule 2 sets out that the turnover of a person’s postal services business shall be calculated after the deduction of sales rebates, value added tax and other taxes directly related to turnover. Rule 3 makes provision for the calculation of turnover where a person’s postal services business consists of two or more undertakings. The power to impose penalties was available to Postcomm under the previous legislative framework. The order will simply allow Ofcom to exercise the same power in the same way, where necessary, to enforce its regulatory decisions.
I turn to the Postal Services Act 2011 (Disclosure of Information) Order 2012. This is made under enabling powers in the Postal Services Act 2011. Section 55—“Information”—and Schedule 8 to the Act make provision for information to be provided to Ofcom for the purpose of carrying out its functions in relation to postal services. Section 56 sets out the framework under which information obtained under Part 3 of the Act can be disclosed to other bodies for the purposes of carrying out their respective statutory functions.
Section 56(7) of the Postal Services Act 2011 makes it a criminal offence to disclose any information obtained by means of Part 3 of the Act, which relates to an individual or a particular business, during that person’s lifetime or while the business continues to exist, unless it is permitted by that section. Section 56 permits disclosure for the purpose of facilitating the carrying out by a prescribed body or other person of any functions under a prescribed enactment, and in other prescribed circumstances or for prescribed purposes, where “prescribed” means by an order of the Secretary of State. This is the subject of the second order before us today.
This order will prescribe those bodies or persons to whom information may be disclosed, the enactments under which information may be disclosed, and other circumstances and purposes. It will permit Ofcom to share information obtained under the Postal Services Act 2011 with certain public authorities that may require that information to assist them in carrying out their statutory functions.
The order essentially re-enacts disclosure gateways that previously existed under the Postal Services Act 2000, combined with those in the Communications Act 2003, although where appropriate it does replace and add some references to account for administrative and legislative changes. I therefore commend these orders to the Committee.
Lord Young of Norwood Green
My Lords, I thank the Minister for her explanation. As she knows, we were not in support of the major principle behind the Postal Services Act, although I have to admit that we did applaud some aspects of it. We breathed a sigh of relief at the transferring of responsibilities from Postcomm to Ofcom. We can only hope that the regulation will be more effective than it was previously. I have no specific questions on this. As the Minister said, it is just a transfer of existing responsibilities from Postcomm to Ofcom.
Lord Razzall
My Lords, I share the support of the noble Lord, Lord Young. This is the first occasion on which a parliamentary body has met since we read in the newspapers and heard on the radio that the Post Office pension fund will be transferred to the Government. Perhaps I may rather cheekily ask the noble Baroness whether she is prepared to expand on that, and to say whether that means that the European Commission has approved the transfer. Or is that a cheeky question too far?
Baroness Wilcox
My Lords, I think that it is a cheeky question too far, but I am taking my time in saying that in case someone wants to wave at me, in which case I will be only too delighted to give him any information that I can. The Government submitted their notification to the European Commission in June 2011. We continue to work closely with the European Commission and expect to receive a decision by 31 March, which will allow the Government to implement their policy of relieving the pension deficit. I thank the noble Lord for that question.
Perhaps I may close on these orders and say that I am grateful for the debate. The orders are re-enactments of the relevant provisions that were available to Ofcom’s predecessor, Postcomm, under earlier legislation. In the case of the disclosure of information order, the order is re-enacting the gateways that had been available under previous postal legislation. I commend the orders to the Committee.
Postal Services Act 2011 (Penalties) (Rules for Calculation of Turnover) Order 2012
Baroness Wilcox
That the Grand Committee do report to the House that it has considered the Postal Services Act 2011 (Penalties) (Rules for Calculation of Turnover) Order 2012.
Relevant documents: 41st Report from the Joint Committee on Statutory Instruments.
The Deputy Chairman of Committees
My Lords, I suspect that there is about to be a Division in the House, so I am not sure whether it is worth going into the next business now. The noble Lord, Lord De Mauley, also is not here. I suggest that we take a five-minute adjournment now, and if there is a Division in that time we will elongate that by 10 minutes.
The Deputy Chairman of Committees
My Lords, a Division has been called. We will adjourn for a further 10 minutes.
The Deputy Chairman of Committees
My Lords, I adjourned the Committee until 4.51 pm. If noble Lords agree, we will wait for another two or three minutes.
Employment Tribunals Act 1996 (Tribunal Composition) Order 2012
Lord De Mauley
That the Grand Committee do report to the House that it has considered the Employment Tribunals Act 1996 (Tribunal Composition) Order 2012.
Relevant document: 41st Report from the Joint Committee on Statutory Instruments
Lord De Mauley
My Lords, first, I apologise for not being here when your Lordships were gathered. Matters seem to have proceeded apace beforehand.
The effect of the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 is to extend the qualifying period for unfair dismissal from one to two years for individuals beginning work on or after the commencement date. It also extends in the same way the minimum period an employee must have been with their employer before they are entitled to request a written statement of reasons for dismissal.
Workers in the United Kingdom have been protected by unfair dismissal legislation since 1971. Since its introduction, unfair dismissal has always been subject to a minimum qualifying period. The concept of a qualifying period has been accepted by successive Governments, no matter their political persuasion, although the length of that period has been flexed by Governments according to economic circumstances, and today’s amendment is no exception.
We need to generate jobs and growth. Creating employer confidence is vitally important to underpinning the Government’s objective to get the British economy back on its feet. Extending the qualifying period for unfair dismissal is one of a range of measures that we are taking to encourage recruitment and to reduce the burden of employment law.
We have listened to businesses, which have told us that the one-year qualifying period is a barrier to hiring. Business and business representative group responses to last year’s Resolving Workplace Disputes consultation were firmly in favour of this extension. They were clear—a year is not always long enough to be certain that a new employee is right for their organisation. I know this to be true from my own experience. When I started my business in 1999, the one-year qualifying period was a source of concern. In highly skilled roles where training can take a considerable time, I needed longer to assess new staff, particularly given that the notice period is taken into account within the qualifying period. This can also be true when potential employees are young and inexperienced, or have been out of work for some time. The Government are thinking about ways in which we can stimulate employers to take on these groups of workers. Extending the qualifying period will give employers the confidence to invest in new members of staff. It will give them the opportunity to get the working relationship right.
It is important to note that our package of employment law measures strikes a fair balance between employee rights and employer needs. “Day one rights” are unaffected by this order. We believe that it is right and proper that an employer who behaves in a discriminatory way or who dismisses an employee for exercising his or her statutory rights will continue to be subject to employment tribunal claims at any time. So without undermining important employee protections, the Government are committed to improving employer perceptions of employment law and the level of burden that it places on them.
The likely improvements in business confidence are inevitably difficult to quantify. This is because a huge range of factors is affecting levels of employment. The effect of a single regulatory change cannot readily be isolated, but that does not mean that these benefits should be ignored. The majority of businesses say that unfair dismissal rules are an important factor in their recruitment decisions. We are therefore confident that this measure will make a positive impact.
This is about the employer who gives a chance to the school leaver who otherwise may not have been recruited. It is about the employer who might otherwise have let a member of staff go if they have not quite met the mark at a year rather than risk an unfair dismissal claim further down the line. A two-year qualifying period for unfair dismissal is the right policy. It strikes the right balance in the context of our fair and flexible labour market. It creates an environment where employers will have more time to assure themselves that working relationships are right and it will give them the confidence to take on new members of staff.
The Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 will enable but not oblige employment judges to sit alone in employment tribunal proceedings relating to unfair dismissal. This order is about improving the effectiveness and efficiency of the employment tribunal system. It is about replacing prescription with flexibility, but it does so while maintaining essential safeguards to fairness—fairness to the parties and fairness to taxpayers. Of course, judges sitting alone is not a new idea in employment tribunals. The general rule is that panels consist of a legally qualified employment judge and two lay members. Those members respectively are intended to have experience from the employee and the employer sides of industry. Since the mid-1990s, categories of cases have been set out in primary legislation where an employment judge can, subject to judicial discretion, sit alone at final hearings.
Baroness Turner of Camden
My Lords, I will speak on the two orders dealing with employment rights. I say at the outset that I oppose both of them. The first provides for an increase in the time that an employee must be in employment before they can claim unfair dismissal. At present, the employee must be in position for one year. The order increases this to two. It is not at all clear why. Surely it is possible for an employer to assess within one year whether an employee is suitable. Increasing the time to two years could involve difficulties, particularly for young people. Many people younger than 24 have not spent as long as two years in one job because of the current employment situation. I see no reason for the increase—and the majority of consultees disagreed with the proposal.
The second order seeks to remove lay representatives from tribunals, so that they will take place with a judge sitting alone. The reason for this proposed change is also unclear. It is opposed by the TUC, the CBI, the Engineering Employers Federation and Citizens Advice. The Government’s own paper states that of the consultees—there appears to have been some consultation—only 33 per cent were in favour of the proposal and 66.5 per cent were against. Surely it is understood that job loss, particularly for older people—and many of those involved are over 45—is a disaster not only for the employee but for their family, as they will probably face a long period of declining living standards and perhaps a reliance on benefits. If the dismissal is felt to be unfair, the trauma is even greater.
When industrial tribunals were first established, it was felt that cases could be heard in a relatively informal way, with lay people involved who had a knowledge of workplaces, and with a judge in the chair. It was thought that employees might not need legal representation since the hearings were such that the employee could represent himself or herself. A judge sitting alone would create a much more legal atmosphere—and of course, under the legal aid Bill currently before the House, no legal aid will be provided. I believe that the Government believe that more cases are likely to be lost in the set-up that they propose. I believe that this is part of a long-term project to decrease employment rights that have been built up over the past century.
The intention is that eventually lay people should be removed from the EAT—the appeal court—which will remove from the system lay people who have a knowledge of both sides of industry and commerce. It should be noted that organisations with a knowledge of the system believe that lay people provide a very useful element, bringing to bear workplace knowledge and often knowledge of local labour conditions in a way that a judge sitting alone may not do. Again, the Government intend to make it as difficult as possible for an employee to utilise the rights that they have, for which previous generations strove. Moreover, the paper that was issued indicated that the intention was that people would have to pay for the right to have a hearing. That, too, I oppose.
We have a low-wage economy in this country, and the Government are aware of that. Because employment is often badly paid, the benefits system supports low wages. Taxpayers are supporting employers who pay badly. Therefore, employers do not need the extra help of having employment rights removed because they already have the assistance of low wages. Should employees simply put up and shut up? Are working people simply disposable? Should we go back to the conditions that existed at the start of the last century, when employment rights were almost non-existent? The orders are a step in that direction. They are not acceptable and I oppose both of them.
Baroness Donaghy
My Lords, these are two shabby little measures that will lead to the further juridification of employment tribunals and encourage lazy management. I speak as someone who was a member of what used to be called the industrial tribunals. It is amazing how long that brand word has lasted, because even now, years after that name ceased to exist, a lot of people still call them “industrial tribunals”. I was a member from 1974 to 1989, a period of 16 years, when the whole employment regime was simpler. I acknowledge that employment law has become a lot more complicated, particularly in the area of equal rights. Nevertheless, I do not believe that that is an excuse for further eroding the role of lay members. I honestly believe that there have been attempts to undermine their role for the past 25 years. Every time a new Government come into office, the filing cabinet is opened, the file is dragged out and the new Minister is asked, “Can we do something about these lay members? They are very expensive and untidy. We need three phone calls instead of one. It would be much neater and tidier if we could get rid of them altogether”. Time and time again the TUC and the CBI have acted in unison and tried to indicate that the world of work is different from the world of the judiciary, and have said again and again that this would be a backward measure. I hope that they will say the same thing again this time.
I also speak as a former chair of ACAS, from 2000 to 2007, so I do not have any romantic feelings about employment tribunals. I fully acknowledge that they represent a failure of employment relations and that there is not always a similarity between employment legislation and employment relations. Sometimes they are the same, but as often as not they are different. When a case has to go to a tribunal, it represents a failure of employment relations, which is why the role of ACAS is so important. In fact, it diverts the majority of cases away from the tribunal service by persuading the employer to negotiate or the applicant to withdraw, or by giving advice in private to both parties as to how they can settle their case. If ACAS was not so successful then the tribunal system would have been swamped years ago. So I think we that can talk from certain knowledge about how important cases must be if they do end up before a tribunal. It is not always unreasonable people who come before one. I have never met anyone who willingly took their case to tribunal; they would always look for a different way.
You could almost say that the increase from one year to two years is traditional Conservative policy, just as decreasing it from two years to one year is traditional Labour policy. It could be left at that, saying that it is a purely political measure. But when you look at the world of work and the journals of the Chartered Institute of Personnel and Development— I am a fellow of the CIPD—they say everywhere that you need to talk to your new employee on a regular basis; to use the probationary period wisely; and if there is any doubt at all about that employee—if they are not proving to be adequate—you have an outlet. You can extend the probationary period in discussion and agree on how the employee can improve themselves. There is absolutely no need to use the precipice of unfair dismissal eligibility for the promotion of employment relations. The two things are entirely different. To use it in this case is almost predictable.
The Minister spoke of generating jobs and growth by making it easier to sack people. In reply I would say: I don’t think so. He also said, “We value the role for lay members”. I am sorry, but that has a hollow ring to it. I do not think that they are valued, and I think that this is a way of further eroding their role. They are regarded as a bit of a nuisance and, slowly but surely, their role will be diminished over the years. Of course business wants the extension from one to two years. It is a bit like asking a child if they would like two bags of sweets instead of one. It is hardly surprising. Even the Government’s impact assessment says:
“We are unable to infer the causality between Unfair Dismissal (UD) claims and changes in the qualifying period. There are a wide range of variables other than unfair dismissal qualifying period that will impact on the number of unfair dismissal claims such as claimant count inflow. In periods of recession when more workers are dismissed, unfair dismissal claims rise”.
There is no objective justification. This is a purely political measure and we will live to regret both these measures.
Lord Cope of Berkeley
My Lords, perhaps I may start on something with which I agree. The underlying measures—the tribunals and the unfair dismissal legislation—were introduced by the Conservative Government in 1971 by our late, lamented colleagues Lord Carr of Hadley, who, sadly, died the other day. The basic set-up introduced at that time will remain. These are comparatively small changes to the way in which they operate. However, I am sure that we can all agree that job creation is extremely important at this time—as has been said from all sides, at different times—and that we will hear a lot more about that in the context of the Budget later this week, for example, regarding the growth strategy and all that sort of thing.
In my view this is also a small contribution in the same direction, particularly the qualifying period, which I am talking about at the moment, and which I welcome. I have had a lot to do with small businesses in my professional life, although that was quite a long time ago, and in my political life over the past few decades. The whole difficulty of running a small business by comparison with a large business is that the proprietor is on his own and has to think about a variety of things. A large business has a finance director to argue with the bank; a production director to deal with the mechanics of whatever you are producing and doing; a sales director who makes sure that customers are as happy as possible, and all that side of it; and a human resources director to look after the employment side and to make sure that even a small business does not trip up over some of the complicated employment law which we now have.
I am not complaining about the complexities overall. They have all been introduced for various good reasons over time. I have been involved in much of that in different ways and I understand why the various bits have been introduced. However, they add up to an awful lot of things for someone who is running a business to worry about. In that context, a proprietor has to worry about hiring new people, the difficulties of hiring new people and the problems that it may get him into. When he is uncertain about his markets, his finance and the state of his business, that is yet another thing to worry about. This qualifying period arrangement is a small movement to assist him to worry slightly less about that.
Lord Borrie
Does the noble Lord accept that after an employee has been engaged for some 18 months, it is right for that person to be arbitrarily dismissed with no legal remedy of any kind?
Lord Cope of Berkeley
It depends on what he has been dismissed for or what the argument is about. Let us not forget that he still has a lot of rights which can take him to a tribunal; for example, a whole lot of things can apply if the dismissal has anything to do with gender, sexual orientation or any of those things. But there is the question of whether an individual will fit into and is necessary to the firm. The Minister referred to training. Whether the individual concerned has worked out as both sides had hoped is also extremely relevant. All that is important. No one is taking away the ultimate right of unfair dismissal. All we are doing is shifting the one year to two years, as has been outlined.
On the composition, I entirely agree with the noble Baroness who said that originally the idea was that tribunals would be rather informal. Unfortunately, it has not quite worked out like that. This issue has become more complicated and more judicial. I disagree as regards whether having more people on the Bench, as it were, makes it more judicial or less judicial. One can look at that in different ways. However, the intention is to make it easier to arrange sittings, particularly when they have to be rearranged, as everybody knows happens from time to time. This measure will help speed up the process and in so doing reduce costs not only for the Government but for the businesses and trade unions that are involved, as they will know where they are. It is hedged about with safeguards, particularly the big safeguard that either side can request a full tribunal with appropriate lay members. That can be granted, and no doubt often will be granted when there is reason to do it. Some cases will be speeded up by this process. Therefore these two measures are small—I do not claim that they will change the world overnight—but useful improvements to the system, particularly in the interests of allowing small businesses to employ more people.
Lord Monks
My Lords, the UK has the third most flexible labour market among the OECD countries. I would like to explore what that means. Does it mean that we have the third best labour market in the OECD? I am afraid that it does not. Does it mean that we have the third most productive labour market in the OECD? It does not at all. Does it mean that we have the third best trained labour market in the OECD? It certainly does not. However, it does mean that we are in third place in terms of employers finding it easy to fire people unfairly and get away with it. It also means that we are in third place as regards employers being able to exploit the vulnerable and those most at risk, who often comprise young people, women and those who have the least hope of securing stable employment.
The changes that the Government are proposing in these two orders might just get us into second place in the OECD most flexible labour market league table. They will promote poor practice as opposed to good practice and encourage people to do things quickly and peremptorily rather than properly. There are a lot of myths about dismissal legislation. We should not forget that these measures are about unfair dismissal. Employers will win the cases that are taken against them if certain simple procedural rules are followed, particularly in the areas of competence and behaviour. Equality cases tend to be more complicated but if an employer warns a worker about a competence or behavioural matter, gives him a chance to improve and then takes the final decision, the employer wins. That is the reality of the case law that has developed since those provisions were introduced for the first time by Lord Carr, as the noble Lord, Lord Cope, has just reminded us. Irrespective of whether he has a small or a large firm, an employer should follow the basic procedures of giving people a warning and a chance to improve before taking a final decision. That seems to me eminently sensible good practice.
The effect of these measures will be to take thousands of workers out of scope—but for what? I simply cannot accept the argument that employers are sitting there thinking, “I am not taking on another worker because the qualifying period is too short”. I do not believe that it will lead to more recruitment and more jobs—although, as the noble Baroness, Lady Donaghy, rightly pointed out, if you are offering that to employers’ organisations they are bound to say, “Fine, it is a free gift, we will take it”.
I agree very much with what has been said on this side of the table about lay members, who have played a useful role in tempering the application of the law with some understanding of the realities of the workplace. I am glad that the employers’ organisations tend to agree with the trade unions on this. With due respect to judges, the realities of the workplace have not been their particular area of expertise, and they acknowledge that they have been helped. This order makes it a grace and favour provision for the legal chairman to choose whether he needs the lay representatives. That seems undignified and unfair, and it weakens the employment tribunal system in a way that will not be fatal but certainly will do it some harm in the eyes of many.
These measures are shabby, squalid and rather mean-spirited. They will not do anything for employment or for the British labour market, except to make it that much worse than it is at the moment.
Lord Scott of Foscote
I apologise to your Lordships, and to the Minister in particular, for not being here at the commencement at this debate. I intended to be, because I remember seeing this statutory instrument when it came in front of the Merits of Statutory Instruments Select Committee, of which I am a member. I made some remarks about it then and I had intended to make the same remarks here. I hope that what I am going to say has not already been said by somebody else.
The point I wanted to make does not relate to the reduction to one year for the bringing of an application for remedy for unfair dismissal. Unfair dismissal is a statutory remedy, and as the two-year period was fixed by statute it can be changed by statute—or, as here, by statutory instrument. However, I do not understand why it is thought necessary to put up to two years the right of a dismissed employee to obtain a written statement of the reasons for his dismissal.
Whoever has been unfortunate enough to be dismissed, whether or not he has a remedy to make a claim for unfair dismissal—and after this becomes law he will not have a remedy—he will want to know why he was dismissed. He is going to have to go back into the labour market and try to make himself a better employee, not so subject to dismissal as he was with his previous employer. Common courtesy ought to entitle the employee to be given the reasons for dismissal. Why has he been sacked? He needs to be given a reason. There may be other courses of action he may have against his employer for which it would be relevant for him to know why he had been dismissed. I cannot understand the policy behind requiring two years’ employment, rather than one year as previously, for the entitlement to be told why he has been dismissed.
I asked that question when the instrument was in front of the Merits Committee. Nobody knew the answer. My recollection is that the secretary of the committee went back to the department but did not get anything like a satisfactory answer. Perhaps the Minister could help with this. Why is it thought necessary to reduce the right of a sacked employee to be told why he has been sacked? Why must he be employed for two years before he is entitled to that very basic right, which ought to be a matter of common courtesy anyway?
Baroness Prosser
My Lords, I would like to make a couple of points. When moving the proposition, the Minister talked about the responses from employers welcoming the possibility of extending the period during which a person would be on trial, so to speak. That is not exactly surprising, is it? The point has been made around the Room—my noble friend Lord Monks described it as a free gift.
I am reminded of when employers were being asked for their views on the introduction of a national minimum wage. Their response was that its introduction would bring about the end of life as we know it and there would be no jobs made for anybody. In fact, the absolute opposite occurred. The fact that employers are claiming that this will be of great benefit and will encourage them to hire more workers seems to fall pretty far short of producing any real evidence in that regard. I cannot see for one moment that introducing this change will increase the opportunities for people to find employment.
Secondly, should this be introduced, women workers are likely to be hit harder than other employees, because, generally speaking, women change their jobs more frequently than men because of the pressures of other responsibilities. Can the Minister tell us if there has been any equality assessment of the impact of these proposals? Thirdly on the question of unfair dismissal, I would like to support the point made by my noble friend Baroness Donaghy. There would be much more to gain if there were more concentration on the need for management to be trained in how to manage.
The Chartered Management Institute assesses that only 13 per cent of people who are in management positions have ever had any training as managers, which is shameful. That would lead to difficulties when your employee is not up to scratch if after 12 months you could not say that they have had all the training they need. If the manager has had proper training, that matter can be dealt with in a way which is beneficial to the company, the manager and the employee. The cack-handed fashion in which a lot of these issues are dealt with is what leads to people going to the tribunal with a case that maybe is not as good as it might be, or people being dismissed for reasons which are completely and utterly unfair. Any manager who does not know whether an employee is good enough after 12 months needs to look in the mirror and ask who has the problem.
On the question of tribunals, I sat as a member of the Employment Appeal Tribunal for 11 years. When I worked in a law centre before I worked in the trade union movement, I represented people at employment tribunal level for six or so years. So I can speak with some experience of the value of lay members, and I can give two examples.
First, on many occasions, the judge has spoken to the applicant in such language that it is quite easy to tell that the applicant has not the vaguest idea what the judge is trying to tell him or her. So many times I have had to intervene and explain in words of one syllable what it is the person is being asked to do or to give further information on. Who will do that if there are no lay members on the bench? We will have people—who are not stupid by any means—but who are just not familiar with those kinds of phrases, that sort of language, those kinds of rules and regulations.
Secondly, on many occasions I had to explain to a judge whether a workplace situation that was being presented to the tribunal was something that was likely to happen, that was tolerable, or that would in the opinion of most people have led to certain dismissal or a very different outcome—because judges in tribunals do not have the experience of working on the shop floor or dealing day-to-day with people who work there. Not giving that information, advice and expertise to the judge, who no doubt has expertise of their own, would seem to be going down a path that is deeply unhelpful and could lead to decisions being made that are less than fair and less than accurate, and which do not take into consideration all the relevant issues. I hope that the Government will think again on these issues, but I will not hold my breath.
Lord Jones of Birmingham
My Lords, as a Cross-Bench Peer I find myself, on this side of the Committee Room, looking across at the labour relations first XV. I feel like a full-back at Twickenham who has just shouted “Mine” with the sun in his eyes and the All Blacks coming towards him. Perhaps I may start by paying tribute to the noble Baroness, Lady Donaghy. When I was director-general of the CBI she was the chair of ACAS, and she did an incredibly good job. It is just a shame that we will probably disagree in the next five minutes.
The noble Baroness put it extremely well when she said that this was a political football. The Conservatives will vote for one year and Labour will vote for two years, as sure as the sun comes up in the morning. I am here to put neither case. I am not even here solely to put the business case, although I am sure that one or two noble Lords opposite will expect me to do so. However, if we in this country are to get ourselves out of the economic mess that was caused by so many contributory forces, we must trade our way out. We must generate jobs and wealth so that we make profits and pay tax, in order to reduce the deficit, build schools and hospitals and pay public sector workers what they deserve.
To do that, we must do two things more than anything else. We must be the acknowledged location of choice in the developed world for inward investment, and we must get smaller businesses in particular to take on one more person. Those two things on their own will generate a great deal of the wealth and the jobs that we need. For too long—I hope that the problems of the past two or three years have brought this into focus—successive Governments of both parties, as well as European legislation, have worked hard to help people in work keep their job, and have not concentrated enough on getting those who are out of work into it.
Whenever one talks to inward investors—Americans, Germans, Japanese; it matters not—they give one reason for coming here in greater numbers than anywhere else in Europe. We are number one by a mile—in the whole of the developed world we are number two only to America—because of what the noble Lord, Lord Monks, referred to as the flexible labour market. It does not mean that our workforce is the most productive, and certainly not that it is the best trained. In fact, those are both tragedies on which the noble Lord and I have often agreed. However, at the end of the day our reputation is that it is easier to deal here with mistakes of recruitment and the need to be mobile and light on our feet when it comes to maximising investment. It has to be easier on that basis to let people go.
Employers at that end of the game do not want to let people go because it costs a lot of money to recruit them. It costs even more money to train them. The noble Baroness, Lady Prosser, asked why managers in big companies are not well trained enough in the employment relations side of life. At the top end, especially with the overseas investors, you find that they are. They do not work on the basis of wanting to recruit people and thinking, “Well, I can get rid of them if it doesn’t work”. What they want is this aura, this feeling in the nation that we have a flexible labour market, of which only one little bit is this concept of an extension of more than one year. I do not want to get into the two years or one year because it smacks of tribalism. But these employers want the concept of being able to sort things out after a longer period than one year.
The noble and learned Lord, Lord Scott, has a point when he asks why someone who has been let go cannot at least receive written reasons as to why. That has nothing whatever to do with whether the period of time should be two years, 10 years or six months. A person is perfectly entitled to know why they have been dismissed both as a reference and as a reason for understanding. People do not like bad news but they prefer it to no news. In that respect, perhaps the Minister could go back and sharpen his pencil on that point.
One end of the labour market is about attracting inward investment; for example, Tata Motors is building a new engine plant in Wolverhampton, adding 1,000 jobs in a factory on a greenfield site. You will not see that in France, Germany or Italy. You would be lucky to see it in America. One of the reasons—although not the only reason by a mile—is the feeling that there is a flexible labour market, which includes being able to let people go.
Let me take the Committee to the other end of the labour market spectrum. Noble Lords who come from the Labour movement and the TUC will probably identify more with this and will find more fertile, efficient grounds on which to attack the proposition. The proposition is: can we get smaller businesses to employ just one more person and can we get smaller businesses to be this engine of employment growth in the nation? This proposal is dealing with making employers feel that they have the chance and the opportunity to make a mistake but will not fall foul of two or three issues that they are scared of every day.
One issue is of their own making. The noble Baroness, Lady Prosser, is absolutely right. The training qualification in management can be pretty poor. One of the reasons for that, as I heard here, is that on Monday, they are the finance director; on Tuesday, they are the sales director; on Wednesday, they are trying to clean the stairs; on Thursday, they clean the loos; and on Friday they go to see the kids. All that is seen as something that other people do until it lands on their desk because they have not gone through the right process and have not done it properly, and find that they have got a letter from the employment lawyer.
This proposal does not excuse in the slightest an effort that should be made by this Government, the CBI, the chambers of commerce, the Federation of Small Businesses and the local enterprise partnerships. Just like the CBI, the TUC finds it difficult but when it can it should reach into these places. There is no excuse for poor management of people at whatever level of employment or duration of employment. Small businesses fear that they are going to be caught up in something. Therefore, the default position comes in, which is that they will not employ someone. That is not always the case, but it is sometimes.
The second issue is the spectre hanging over the small business job market of constructive dismissal. So often the small businesses that these days I advise or champion tell the nightmare stories of people who handed in their notice; then, on the day before the three months or six months or whatever it was, the letter came in from the lawyer saying, “This person is going to say they were constructively dismissed. By the way, it is going to wrap you up in an employment tribunal. It is going to take your resource, time, effort and money. Tell you what, it could all go away now for a thousand quid”. I saw loads of letters like that, all without prejudice.
Lord Jones of Birmingham
“Not on my watch, guv’nor”. I was not at the CBI when that fight went on. That was the bailiwick of the noble Lord, Lord Turner, not mine. I always said, and I stand by this today, that it was a good thing to do, but the wage should never be set so high that people felt they could not afford it or it was inflationary. Because it has always been implemented very wisely, it has never had those two problems. We were fortunate that the economy had that Goldilocks aspect to it for many years after it was introduced. Many an alarmist employer would have said, “This will be the end of life as we know it”, but certainly not this one.
I am not saying that if this measure is not introduced, inward investors will not invest or small businesses will stop employing. We are not in that alarmist territory at all. All I am saying is that making it more flexible will create some jobs. We must start looking after those out of work and getting them into work, instead of only looking after those in work.
I am in favour of judges sitting alone, but only with the caveat that it is discretionary, that it will not always apply and that it will be left in the hands of the judge to decide every day. We have to get as much value for money as possible out of the system; we must not delay, obfuscate or obstruct. I would like to think that most cases will be heard with two lay people sitting with the judge. I think that will happen a lot and I am pleased that it will. But the judge should be given discretion. I will not fall for the argument that for some reason employment law is so special, specialised and expertise-driven that judges are not qualified to do this on their own. To my knowledge, most judges are not murderers, and yet they preside over murder trials without experts on either side. This is a special field, but so are many others.
Over the past 15 years we have lived through the continuing encroachment of employment legislation. I would love to know what the increase in employment tribunal hearings has been in the past 10 years. I do not know what it is, so I hope the Minister can provide me with that information. How many of those tribunals have involved people in the first or second year of their employment? I would love to know that. However, whatever those figures are, I know that a greater number of employment cases never get to a tribunal as the parties settle. The noble Lord, Lord Monks, said that good employers who have a good case will win at a tribunal. He is right, but the problem is the employer never gets there for anyone to find out. It is in a business’s interests to settle as that stops it committing further resources, time and money to the case. That smacks of blackmail and of saying, “We won’t let the system work no matter how well meaning it is because it is in the interests of wealth creation to get rid of a case”. You thereby create a compensation culture, which is surely what we have to avoid at a time when we need to get some wonderfully skilled people into the world of work for the first time in their lives. If this provision goes just a little way down the path of doing that, it may not be an answer to a maiden’s prayer but it will help us look after those who are out of work a bit better.
Baroness Gibson of Market Rasen
My Lords, I do not have the expertise in this area that many of my colleagues on this side of the Committee have. However, I am a former trade union official, as many noble Lords know, and therefore I am very interested in employment legislation. I should declare an interest in that my husband is a member of an employment tribunal. Indeed, he serves on the central London tribunal. I know that the Minister was lucky enough to go to that tribunal and meet members of it last week.
I wish to make two small points. My husband has served on an employment tribunal for a number of years and I have heard about the cases in which he has been involved and have reached my own judgment on what we ought to be doing in the future. Some of what is being proposed is bothering me. I am well aware that when employment tribunals were first introduced there were industrial relations problems in this country. One of the reasons for bringing in employment tribunals was the hope that they would be a more informal way of sorting out the difficulties that arose in industrial relations issues on both sides of industry. By and large, I think they have worked very well over the years. Unfortunately, we may now be heading in the other direction, and that worries me. Two points worry me particularly. The first follows on from what the noble Lord, Lord Jones, said about job creation. Obviously, I am in favour of job creation, particularly given the position the country is in at the moment. The noble Lord talked about small businesses. My background is in small business. My father and both sets of grandparents had small businesses so I am well aware of the difficulties that can arise when taking on even one extra employee.
I am a little surprised about this measure because last October the Government produced their own statistics which showed that only 6 per cent of small and medium-sized enterprises said that employment legislation was a problem in relation to taking on staff. I understand that about 1,100 businesses were consulted. This means that 94 per cent did not say that employment legislation was high on their agenda in terms of difficulties. There were other problems higher up the agenda. I am rather surprised that this issue is being brought up five months later as something that is definitely stopping SMEs taking on even one extra employee. That is something which, as the noble Lord, Lord Jones, said, I would support.
My second point concerns the expertise of those serving on employment tribunals. We in this House have all come here because of our background and expertise in different areas. It is exactly the same with those who serve on tribunals. It is not just important that a judge sits with one lay person from each side of industry to discuss issues and listen to the evidence put before them; the expertise also comes out when they get together in chambers behind closed doors to discuss what they have heard. I have spoken to judges and I know that they value employment tribunal members from both sides of industry. They value the advice of the lay members and they pick up things which, if they sat alone—whether they are a man or a woman—they would not pick up. I cannot see how one person sitting alone would be better than three people in these circumstances. Perhaps the Minister will give a little more detail on why the Government think that one person alone would be better than three.
Lord Hodgson of Astley Abbotts
My Lords, I support the proposals, which I consider balanced and sensible. I will declare some interests that are on the Register. I am a director of various companies that employ people. Therefore, we will take some benefit from the proposals if they are accepted. I believe that this would increase the likelihood that we would recruit people.
I read the debate that took place in the other place on Tuesday 13 March, but did not find it very helpful. An attempt was made to characterise the orders as a throwback to an earlier age, which was both unhelpful and unfair. Employers are not red in tooth and claw, as was suggested in the other place. The noble Lord, Lord Monks, asked why an employer, if they felt that they had a good case, did not just go through to the tribunal. The answer was given in part by the noble Lord, Lord Jones: it is the enormous time that it takes to get to a tribunal.
In the case I shall refer to later, it took a year to reach a tribunal and a further three months to get the case determined with a written judgment. A small business simply cannot wait for 15 months, with all that that implies for having to pay someone who is clearly disaffected. That is why you are going to a tribunal. There would be a difficulty in the system even if it were maintained as it is now. I do not argue that all employers are saints; far from it. However, as my noble friend pointed out in his opening remarks, and various other noble Lords have said, the basic protections for employees are maintained, with day one rights particularly in cases of discrimination, which are of particular relevance in smaller companies.
Why do I support the case for the extension from one to two years? All the businesses that I am involved with are hungry for talent, and hungry to keep a stable workforce. Hiring people is extremely expensive—and letting them go is expensive, too. It is expensive because they have to be replaced, and expensive in morale terms, because when people are let go, particularly in circumstances that are not their fault, the effect on the morale of the rest of the workforce is very great. By talent, I do not just mean the talent to shoot the lights out. I mean talent at every level to put in the time to carry out his or her allotted task with care, integrity and professionalism, to be a good colleague and team member, and to provide flexibility at times of strain within the organisation. In the business in which I am involved, when we discover that sort of talent at any level, we wish to nurture, engage with and develop it. We do this through the annual performance appraisal cycle. This is an important part of the reason we should extend it from one to two years.
Baroness Prosser
Is the noble Lord arguing that the best way to deal with “free riders”, as he described them—whom I don’t think anybody on either side of industry has time for—is through the extension of the period before protection comes along? Would he not agree that that is a really sensible argument for better management?
Lord Hodgson of Astley Abbotts
Clearly, it is an argument for good management. Identifying free riders is very important. Some people who promise quite a lot in the first few months are unable to sustain the work for various reasons. It is the performance appraisals cycle which sets deliverables and make it clear whether the person has delivered or whether the performance has, over time, drifted away and they have become a free rider. It is a sensitive interaction between what is practically laid down in the performance cycle and what management itself should be doing. There is no excuse for management not being prepared to grasp the nettle and make sure that any issue which clearly causes disaffection is tackled soon.
I turn to the employment tribunals order and the issue of whether a judge has the right to sit alone or can call for lay members. Based on my experience of the employment tribunals I have been involved with, the position has been that a judge has been able for the most part to undertake the work perfectly satisfactorily. I do not argue that this is always the case, but what does happen if you have three people sitting as opposed to one is that the time taken on the case is lengthened enormously.
Last year I was involved in a tragic case concerning an extremely talented man who had set up a small business in the video conferencing sector. I was not a director of the company but I had invested in it because I thought he was a rather talented bloke. Success had eluded him over a period of years and he had become increasingly irrational, and eventually the workforce of 10 to 15 people said to the directors, “It is either him or us. We cannot put up with him any longer”. The company had an internal conciliation process and I, along with another investor, was asked to sit down and talk to the chap. We did so, although it took four or five months to organise that. It was clear that he could accept no criticism of his performance because as soon as we said that, yes, the company had made some mistakes in the process but he was majorly at fault, he said, “Fine, I am going to an employment tribunal”.
It took a year to set up the tribunal, which had three people on it. There was really no dispute about the facts or anything else. This chap, for better or worse, very sadly could not accept that anything was wrong at all. A case that might have taken one or two days took six days, and it took three months for the judgment to be concluded. The result was, frankly, a tragedy. He lost his investment and eight or nine years of his life, during which he had spent all his time working on the business. I lost my small investment, which was a pity, but that was nothing compared with the 15 people who lost their jobs. One felt that the situation should have been capable of being grasped faster, and could have been dealt with more quickly, if it had been handled by one person, not three.
I would say to my noble friend that whereas the consultation document states that the objective is to,
“ensure that where parties do need to come to an employment tribunal, the process is as swift, user friendly and effective as possible”,
I know that there is no doubt that this case and many others that I hear about show that we are not as swift as we should be. If we are to have confidence in the system, we need swift justice because small businesses in particular find it extremely debilitating to have senior management devoted to preparing the case, sitting in on hearings, and in the mean time obviously having a disaffected employee.
I conclude by saying that I support the orders for the reasons I explained. They reflect my view of the changes that have taken place in recent years in both commercial and industrial practice, and they do so without weakening the safeguards we need to ensure that a proper equality of arms between employer and employee is maintained.
Lord Risby
My Lords, first, I apologise for arriving a few minutes late. In supporting the orders before us, I agree strongly with my noble friend Lord Cope. These are not issues that will change the industrial, commercial or employment landscape of the country, but they will certainly make a difference. I will refer to two articles in the papers today. One is by Mr Xavier Rolet, the chief executive of the London Stock Exchange. He points out that there are 4.8 million SMEs in this country, and asks us to “consider the impact” of what would happen if they were given an additional incentive to employ people—particularly young people, where we have a very big problem.
I was interested in the observation of the noble Lord, Lord Monks. Compared with many industrialised countries, we have a flexible labour market, but the truth is that in the eurozone, unemployment is running at 10.7 per cent while here in our country it is 8.4 per cent, which is still far too high. What is happening is that in terms of the UK’s global competitiveness, the World Bank now rates our labour market 35th in the world—down from 17th in 2007. Of course it is absolutely right that we should have proper, civilised protection for people in the workforce. There is no question about that. However, there is a question of balance.
Perhaps I may draw your Lordships’ attention to some issues for SMEs. I declare an interest as deputy chairman of a small business bureau. In the past few days I have spoken to a number of bureau members, to get their views on what we are discussing. I should add that in a previous life I ran businesses, both large and small, and so I know about the associated difficulties, particularly for smaller family businesses that employ between 10 and 30 people.
For SMEs, going to a tribunal is very time-consuming and stressful for both employers and employees. There is no question about that. However, as we heard from a number of noble Lords, for employers it can be a particularly difficult time. There is great anxiety in SMEs about taking on and retaining staff; I know that from experience. It comes on top of all the other issues such as access to bank funding, planning and management. Based on my discussions of the past few days, I suggest that if we can provide something that will give them a small additional opportunity to take on employees, we should support it. Certainly the CBI, the IoD and the British Chambers of Commerce said that the current arrangements were something of an inhibition to taking on additional staff.
It is certainly true that the world we inhabit at every level has become more litigious. For those people in a difficult economic environment, particularly in family businesses, this is a difficult time. That is why I support the orders. I will add simply that the CBI noted that SMEs accounted for 65 per cent of all new jobs created. Its view is that the extension to two years will be particularly beneficial to those without labour market experience. We all know about the tragedy of youth unemployment. As the economy recovers, if these proposals in some way encourage SMEs to feel that there are fewer disincentives to taking on young people in particular, I will support them—and I believe that they will.
I will turn briefly to the issue of tribunal composition. We need to remind ourselves of the discretion under the proposed arrangements. A full panel can exist in appropriate cases. I am not sure that it is appropriate for us to prescribe that that should be the case all the time. In fact, it is not. A principle was established by the previous Government, who decided to extend the scope of judge-only cases. Various surveys have taken place. In 2007 Michael Gibbons was appointed to review the circumstances under which employment judges could sit alone and add value for money.
Under the proposals, parties can consent to a judge hearing the case alone. There is no change there from the long-standing situation. The measures will put in the hands of the judge something that will give more flexibility. Some degree of judicial discretion, with defined criteria, will give judges an opportunity to decide, in consultation with those affected, whether to proceed on that basis. The order does not mandate the exclusion of panel members; it changes the basis for having them and will simplify the process.
I come back to my original point that we want a high level of protection in a civilised country. However, as the noble Lord, Lord Jones, said, we have a problem of international competitiveness. If it is possible through these measures in a small way to begin to deal with the terrific problem, in our country and the rest of Europe, of how to employ more people, I will certainly support them.
Lord Jones of Birmingham
Perhaps I may make two points. I was reminded by what the noble Lord said that I had omitted to declare my interests. If noble Lords refer to the Register, they will see that I am a director of many companies that would benefit from this measure. I am sorry that I did not mention that at the beginning. Secondly, I apologise to the chairman and the Minister as I have a very long-standing private engagement at 6.15 pm quite a few miles from here and I am already very late. I am sorry that I will not be able to listen to the Minister’s reply, but I shall read Hansard tomorrow with great interest.
Baroness Drake
My Lords, the Register of Lords’ Interests will show my 25 years’ membership of either the employment tribunal or the Employment Appeal Tribunal, so I declare that interest. I particularly want to speak to the issue of employment tribunal judges sitting alone on unfair dismissal cases because this measure has nothing to do with debates about job creation. The arguments on job creation are around the qualifying period for when entitlement to protection against unfair dismissal kicks in.
The impact assessment shows that lay members were paid a total of £9.78 million in 2009-10, so the measure that we are discussing is hardly a huge cost-saving exercise, and nor can it be a driver of the employment practices of small to medium-sized enterprises. I worry about the implications of moving towards an industrial jury system whereby employment tribunal judges increasingly sit alone in the heavyweight area of unfair dismissal. The impact assessment states that employment judges are competent to deal with the more “fact heavy” unfair dismissal cases. I fully recognise the competence of employment tribunal judges—their competence is not the issue, and I do not think that it is up for debate.
The noble Lord, Lord Jones of Birmingham, said that an employment judge could sit alone at a hearing because judges do so in murder trials. However, these are not criminal law cases, and the standards of evidence are not those of criminal law cases. That is the point. Employment tribunals are industrial tribunals based on the concept of a reasonable balance of probabilities and on all sorts of other concepts that have grown out of a judicial system that is focused on industry, not crime. The concept of industrial juries should not lose that importance. If one looks at the Employment Appeal Tribunal, the view is taken that employment tribunals have heard the facts and seen the relevant people, and that the decision taken is that of an industrial jury. Those decisions are not overturned lightly. There should be a compelling reason for interfering with an industrial jury decision. However, if it increasingly becomes the practice for judges to sit alone, the decisions will not be those of an industrial jury. The concept of an industrial jury, with practitioners from industry hearing industrial cases on a certain premise, will start to bring its own problems which may not be beneficial to employers.
The concept of an industrial jury is very important for another reason—fairness. Many claimants see a panel of three people when they appear before the employment tribunal—somebody from the employer’s side, somebody from the employee side and the judge. If the tribunal finds against the claimant, the impact of that decision is very powerful because everybody on that tribunal has found against him or her: but if the tribunal judge is sitting alone, the claimant is less likely to feel satisfied with the decision. I suggest that the claimant is more likely to want to argue with the judge and to pursue an appeal. The claimant will not receive the same powerful message as when an industrial jury makes its finding.
I turn to the concept of swift justice—what employers and particularly SMEs want. I will put the alternative proposition, which is that if you interfere with the integrity of the industrial jury concept in unfair dismissals, the number of appeals that will flow from that might well increase. The impact assessment states—on the basis of anecdotal rather than hard evidence—that when it comes to appeals made against the findings of a judge sitting alone as against those of a full panel,
“there is no significant difference between lodgement or success rates”.
However, we are moving to unfair dismissal cases with judges sitting alone, not the narrower issues that are weighted heavily towards payment disputes where judges currently sit alone. We are moving to the heart of activity in industry—disputes over whether a dismissal was fair or not—and taking away the industrial jury concept. There may well be a significant increase in the number of appeals. I must say, as a former trade union official, that if an industrial jury goes against you, you pause. I suspect that if an employment tribunal chairman sitting alone makes a decision, the disposition to go to appeal will be much greater. That is because you would be much more confident about disputing the findings of fact by an employment tribunal chairman sitting alone.
Unfair dismissal is a much more contested and emotional territory. The sense of getting a fair hearing in court is very important in terms of influencing the behaviour of claimants. The Government are unquestionably going to reduce employment rights through increasing the period before there is protection against dismissal to two years, and probably through more changes to employment rights that will come in the area of redundancy compensation. They are also looking to promote further the flexible labour market. It strikes me as unwise and counter-productive to seriously tamper at this point with the industrial jury concept. At the same time as people are getting anxious about the quality and availability of employment rights, the Government are taking away from the key area of unfair dismissal the guaranteed right of access to a tripartite industrial jury. That is a big risk for the sake of saving £9.78 million. I would not take it.
It says in the impact assessment—although I cannot find exactly where—that if claimants are not happy about a judge sitting alone hearing their case, they can put their reasoning to the judge as to why there should be a full panel. Some claimants who come before a tribunal are barely capable of prosecuting their own case, particularly if they are lowly paid or if English is not their first language. The idea that they can mobilise a set of arguments in support of why they should have a full panel as opposed to a judge is laughable. Equally, claimants who are unrepresented and put their own case, even if they are not in low-paid jobs and English is their first language, will be anxious and will not feel confident about legal procedures. They probably will have no idea of how to mobilise a set of criteria on whether their case should be heard by a judge alone or a jury sitting as a panel of three.
On the argument that there will still be judicial discretion as to whether a tribunal judge should sit alone or with lay members, the tribunal judges will be under their own pressures. They will be under pressure to keep costs down and to get the throughput of cases. I suspect that a tribunal judge who allows too many full-panel sittings will be called by the regional chairman and asked why his productivity statistics are lower than other people’s.
I worry seriously that at the same time as employment rights are being reduced—we may well see them further reduced—the concept of the industrial jury is under attack. One cannot have a concept of an industrial jury unless two lay members representing the two participating sides of industry are also representatives on those tribunals. Anybody with experience of dealing with unfair dismissal cases knows how, in the majority of cases, they can be very fact heavy, very contested, very emotional and very influenced by what is reasonable or normal practice in that industrial context. An intellectually brilliant employment tribunal judge may not have an understanding of what is ongoing or normal industrial practice in a particular industry.
Lord Whitty
My Lords, I have left most of the detailed points to my front row. But the essential point that the Government need to address, which they have not done convincingly, is the point of evidence—evidence not anecdote. The noble Lord, Lord Jones of Birmingham, is undoubtedly right that when two or three businessmen are gathered together, the evening rarely ends without some complaint about employment legislation. But does that seriously change their behaviour? There ought to be that evidence because, as the Minister said at the beginning, we have changed the qualification period several times, both in general and in relation to the size of firm it applies to, from 1971 to 2012. We are therefore talking about 40 years of potential evidence that the qualification period made a significant difference to the way in which employers approached staff recruitment.
My colleagues have referred to huge problems concerning fairness, justice and the behaviour of management towards employees. There are also issues in terms of the behaviour of individuals towards employers. But the central economic point which would justify such a change in the regulation is whether that leads to fewer people being employed. In general parlance, it would seem a very strange move by the Government to suggest that we increase employment by making it easier to sack people.
However, there is no evidence to the contrary. No change is identifiable. We have a whole impact assessment of God knows how many pages here, which not only says that we are unable to establish whether the number of cases changes as a result of a change in the qualifying period, but there is not one word about whether recruitment or a decrease in employment follows a change in the qualification period. Unless it does, the central broad argument that the noble Lords, Lord Jones and Lord Cope, the Minister and others have put to us—that this will have a significant effect on the propensity of employers to take on new labour to help solve the youth unemployment problem—must fall. At best, it is unproven. There is a lot of anecdotal evidence, but no statistical evidence.
A lot of other issues affect employers’ behaviour. But, over that 40 years, with very clear break points in the qualification period, one would have hoped that the statisticians available to the department would have been able to exclude or at least minimise the effect of those other considerations and have been able to identify that a clear change took place in the propensity, particularly of small businesses, to take on more employees once the qualification period had changed.
Lord Lea of Crondall
My Lords, following the same line of thought as my noble friend Lord Whitty, the section of the document beginning on page 25, which is headed:
“Resolving Workplace Disputes Government Response: Overarching IA Evidence Base”,
kicks off by saying that the “Problem under consideration” is that “Employers are worried”—employers this, employers that and employers the other. That is what you might call the Mandy Rice-Davies approach to evidence—it may be good or it may be bad but it is not what most of us would be looking for when we think about evidence.
On page 28, after it says:
“The Government will therefore commission an independently chaired fundamental review of the relevant procedural rules, and will ask the judiciary and other stakeholders to play a full part in that review process”,
paragraph 18, which is what I would like the Minister to comment on, says:
“There is therefore little to be gained by introducing major rule amendments now that may shortly be undone or altered as a result of the fundamental review. Further, reform at this stage should seek to avoid any risk of introducing more inflexibility and prescription when that is what the fundamental review is designed to strip away”.
Then there is a sentence that I think can be translated slightly differently from what is on the page:
“However, after an assessment of the evidence submitted in response to the consultation, the Government believes that a more limited set of reforms can be implemented without awaiting the review’s recommendations”.
In other words, as I read it, “We have got a political doctrine that is fundamental to the nature of what you might call the evidence”. Whether or not that is what a judge would normally consider to be the sort of evidence on which a jury should take a decision is rather problematical.
The other point I wish to make relates to that. The anecdotal nature of what is being said is not the way in which you would expect the two sides, if I can call them that, to relate to each other. One anecdote is worth as much as another. That is why the system of Explanatory Notes introduced some years ago is vital to getting good legislation and why we should be very careful about the nature of evidence.
Finally, on a slightly different plane, the noble Lord, Lord Jones of Birmingham, and other noble Lords on the other side have made very general remarks about the monstrous flow of legislation that is making life difficult in this country. If one looks at employment and unemployment in Germany, where the mittelstand offers much more in the way of management training and so on than we do, one wonders why the Government’s kneejerk reaction to almost any problem is to listen to employer’s anecdotes and to accept them as the main base of evidence. The Prime Minister now says that it is a good idea to take a look at Germany. If the Germans saw the basis on which we take our decisions about employment and what generates employment, I do not think that they would see other than a caricature about what you might call a “top-end” and the “well mannered dog business”. We have a vast number of mittelstand-type businesses in this country and many of them are undertrained. It is a long process, but this kneejerk recourse to the worst sorts of politicking with the British industrial system is not a creative solution.
Lord Razzall
My Lords, it looks as though I have to declare those interests and companies that I have set out in the Register of Members’ Interests, although whether they will benefit from the passing of these orders will depend on whose arguments are correct. I have some sympathy with the points that have been made from both sides of the Committee—although having read particularly the debate in the other place, one would have thought that, from the Labour side, these proposals were going to take the country back to the days of the Tolpuddle Martyrs and, from the government side, that all the problems of unemployment in this country will be solved by passing this order.
I do not share either of those views. This is not part of an agenda designed to take us back to the dark days of poor trade union relations or poor employment relations. I have every confidence in the Secretary of State, who happens to be a member of my party, to ensure that that will not happen. As the noble Lord, Lord Whitty, and one or two other Members on that side have indicated, there is a danger that one can overstate the opportunity for passing this order to extend the period of unfair dismissal from one year to two years. One can overstate the argument. Indeed, as the noble Lord said, most of the evidence in the survey saying that this will have an effect is anecdotal. He put it rather well when he said that if you get three employers having a drink in a pub—I do not know why he picked Hertfordshire—that is what they will complain about.
However, as someone who has been involved for a number of years in the SME sector, I believe that there is a marginal case here for saying that employers are nervous of taking on new employees in small businesses because of the impact of the unfair dismissal rules. There is a case for saying that if they were marginally relieved from one year to two years, people would be taken on.
One point that has not been made is that there is very little evidence that under the current one-year rule many unfair dismissal cases are brought by people who have worked between one and two years. There are very few such cases, which leads me to think that what happens is that people take advantage of the one-year rule to lay people off before they get into the unfair dismissal bracket. If we extend that to two years, action will not be taken until they approach the end of the second year, which will add employment of a further year for people who have been taken on. It will also mean that if somebody knows that they can get rid of somebody who turns out not to be very good before the end of two years rather than one, in some cases they may be more prepared to give that person appropriate training that will keep them in employment for longer.
I will make a point about the context in which the orders were put forward. One does not have to be privy to the inner secrets of government—one just has to read the newspapers or watch television—to realise that a huge battle is going on over how our employment legislation should be framed. Mr Adrian Beecroft has been commissioned to look at the laws. He starts from the proposition that almost all employment regulation and restriction should be swept away. On the other hand, a number of people in both governing parties want to see a significant improvement in family-friendly policies such as paternity leave and maternity leave.
While the battles rage, I very much hope that noble Lords will come out on the right side of the arguments. There is no doubt where I stand on them, and I suspect that there is no doubt where the Secretary of State stands on them. If the proposals come to your Lordships' House, I hope that they will be resisted. In the mean time, this is a modest proposal, and if it is the price we pay for averting something that might be a lot worse, I urge noble Lords to accept it.
Lord Young of Norwood Green
My Lords, I thank the Minister for his introduction, even if I did not agree with most of it. It will be no surprise that we oppose the proposals both on unfair dismissal and on lay members. I could not help smiling when the noble Lord, Lord Razzall, suggested that there was some overegging of the pudding. It is true that I could not find the transportation clause in the impact assessment. However, that is not to say that the measure will not have a profound effect.
My premise for being so opposed to it is that if one wants to give small employers—the measure is focused on them—some help and assistance, is this really what one wants to focus on, rather than the quality of management? I could not help reflecting on that. The noble Lord, Lord Hodgson, spoke about waiting for the annual appraisal. With a new recruit, would that be the first time one gave any assessment? As a small employer, it would be one’s first problem if one waited until the end of the year. One would need to look at a new recruit a lot earlier than that.
My noble friend Lady Donaghy pointed out that a probation period can be extended and that therefore this is not the best bit of advice one could give a small or medium-sized employer. Where they make mistakes is in the quality of management. That is why so many employment tribunals are seen as almost a fait accompli because they know that they do not have a proper set of procedures. I have seen that on many occasions. We have even seen things like the failure to issue a contract of employment. I encountered many people who have complained about the terms of their employment, but when I asked them, “Where is your contract of employment?”, they said that they did not have one. When we have management failure on that basic level, saying that extending unfair dismissal will encourage them to hire more people means, to me, that the Government really cannot see the wood for the trees.
Lord De Mauley
My Lords, I am very grateful for all the comments from all around the Committee. I will attempt to answer all the questions. I hope your Lordships have some time available because it might take a while. If I do not manage to answer all the questions, I will, of course, write with a considered response.
The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order is especially necessary for businesses employing people who need to possess a high level of skill. The noble Lord, Lord Young, picked me up on that a moment ago, so let me say a few words about that. Given the importance to the nation’s future growth—which my noble friend Lord Cope spoke about—of value-added products, services and exports in areas such as clean technology, biomedical science, high-tech manufacturing and ICT, as well as many seemingly quite mundane businesses which nevertheless rely on some complicated technology, the quality and depth of skills are vital to an ever increasing number of firms.
I am speaking from personal experience of running an IT business. For those employees who have yet to gain the full skill set necessary, frequently a lot of time has to go into training and assessing whether they have the aptitude to learn the skills and carry out all aspects of the job. For employees who arrive with that training, it can still take quite a long time to assess whether they really do have the skills they claimed on their CV, particularly, as is often the case, when the employer or manager’s own field of expertise is different from the employee’s.
There are two further important factors. First, most employers would want to give someone the chance of continued employment for as long as reasonably possible. However, it is a fact that, under the current regime, some employers decide that it is not worth the risk of retaining someone beyond the end of the first year if there is an element of doubt that they will make the grade. Secondly, as the noble Lord, Lord Jones, said, it is important to have in mind the expense and time involved in recruiting a new employee. It was one of the things that took up most of my time as my business expanded. No one in his right mind would dismiss such a skilled employee if he did not feel he had to, so giving the employer a further year to make up his mind is certain to save some people’s jobs.
The noble Baroness, Lady Turner, asked how we justify the change when the evidence is that it will disproportionately affect young people at a time of high youth unemployment levels. Our top priority is to boost business confidence to take on staff. Young people out of work will benefit from increased employer confidence to recruit. We are serious about tackling youth unemployment. On 15 December 2011, we set out our strategy for helping young people to access education, training and work, and this strategy includes measures to offer more and higher quality apprenticeships, and a youth contract to help get young people learning or earning.
Lord Lea of Crondall
I am grateful to the Minister for giving way, but he has changed the ball park completely now. Instead of saying that we have evidence, he is saying that we have a problem of perception. If there is a problem of perception, it is the Government’s job to change the perception, unless it is evidence.
Lord De Mauley
Exactly, and that is what we are trying to do.
The noble Lord, Lord Young, referred to the Government’s focus for growth on small and medium-size enterprises, for which the impact of a tribunal case is often greatest. This measure is intended to deliver a decrease in the number of cases being lodged against small and medium businesses. A two-year period will also give them enough time fully to assess new members of staff and to benefit from skills retention in cases where they might otherwise have dismissed an employee in borderline cases because they do not have the access to sophisticated HR and legal resources.
The noble Lord, Lord Young, also suggested that this could lead to an increase in the number of discrimination cases. I do not buy that assertion. Already, discrimination actions are frequently brought simultaneously with unfair dismissal claims. That suggests to me that, if a discrimination claim has a reasonable chance of success, it is already being made. Indeed, because there is a time limit on making such a claim, it is already now important that, if a discrimination claim is to have a chance of succeeding, it is made simultaneously, so we cannot see that reducing the availability of unfair dismissal as a route will lead to a significant increase in discrimination claims.
The noble and learned Lord, Lord Scott, asked about the changes to the written statement of reasons. The statement of reasons is linked to the qualifying period and the specified fair reasons for dismissal, which are set down in law. The objective of the qualifying period is to provide both parties with time to get the working relationship right. If it does not work out, this will not necessarily correspond to one of the specified fair reasons for dismissal. Of course, the employee can ask for a written explanation and I cannot see any reason why an employer would not provide it.
Lord Scott of Foscote
Would not a reasonable solution be to say that the period of notice to which the dismissed employee was entitled would not begin to run until he had been provided with a statement of the reasons for his dismissal?
Lord De Mauley
Perhaps I may take that back to the department. I cannot give the noble and learned Lord an answer immediately, but I will write to him, if I may, on that. I am grateful to him for the suggestion.
The noble Lord, Lord Jones, spoke about SMEs taking on employees. He is absolutely right to focus on the benefits that this measure might bring. If every small business took on just one more person, there would be 4 million more people in employment.
The noble Baroness, Lady Gibson, and the noble Lord, Lord Young, pointed to BIS’s survey, which shows that 6 per cent of business view regulation as a barrier to recruitment. In fact, the SME Business Barometer asked small businesses what their main barrier to growth was. The survey does not show that businesses are not concerned about regulation, but business responses to consultation and employer representative surveys on the matters that we are discussing today clearly show that dismissal rules are a concern when recruiting staff.
On the draft Employment Tribunals Act 1996 (Tribunal Composition) Order 2012, calls for reform of the employment tribunal and the wider employment law landscape are not new. In so far as the role of lay members is concerned, Michael Gibbons recommended to the last Government in 2007 that they should review the circumstances in which employment judges can sit alone in order to ensure that, as my noble friend Lord Cope said, value is maximised. The British Chambers of Commerce recommended in 2010 that lay members should be abolished. Since then, survey evidence suggests further support for reform in relation to unfair dismissal hearings. For example, 87 per cent of clients responding to Pinsent Masons’s 2011 employment tribunal survey supported the Government’s then proposal to allow judges to sit alone in simple unfair dismissal proceedings. Academic research from Greenwich and Swansea includes some interesting data. For example, despite perceptions from judges—the noble Lord, Lord Monks, specifically referred to this—and members that members add value in unfair dismissal cases, the number of instances where panel decisions were anything other than unanimous was very small. Across a sample of 191 judges who all hear cases on multiple occasions, there were only 77 majority decisions, of which 60 had one or other of the lay members as the dissenting voice. Given the safeguards built in, with judges retaining the option to determine whether lay members are required in order to deal with the case justly and with judicial decisions made against statutory criteria, including an assessment of the wishes of the parties, the additional flexibility would allow the tribunals to obtain best value for money when deploying lay member resources.
Employment judges are already permitted to sit alone in a range of proceedings, including claims for breach of contract, unauthorised deduction of wages, certain redundancy and national minimum wage complaints, and “holiday pay” cases. While the range of such cases will increase under this order to include unfair dismissal cases, the use of lay members will continue. There is no plan to remove the role of lay members in employment tribunals entirely. The Government recognise and value the expertise which they bring to the system. This order is about replacing prescription with flexibility. It costs the taxpayer more than £80 million a year to fund the employment tribunal system. Lay members account for about £10 million of that sum. It is right to look at how the system deploys and utilises the expertise lay members bring so that they are deployed where they are most needed.
The noble Baronesses, Lady Turner and Lady Donaghy, referred to the fact that the Trades Union Congress believes that the proposal to remove lay members from unfair dismissal cases is a step too far. The TUC asserts that the Government want to remove lay members from unfair dismissal cases, but that is not the effect of the order being debated. As I have said, this order gives judges discretion. Lay members can and will be deployed if they add value, but judges will be able to sit alone wherever that would be better. Where lay members would not add value, it is not right that inflexible legislation should mandate their deployment anyway.
The noble Baronesses also referred to the fact that 63 per cent of those responding to the consultation opposed it, which I acknowledged in my opening remarks. Our consultation was not a referendum, nor should government consultations ever simply turn on weight of numbers alone. We set out proposals and looked to find evidence on the substance. Nothing that consultees said persuaded us that employment judges are not best placed to determine how an unfair dismissal case should be determined, particularly when it is the judge who has the circumstances of the individual case to hand, and not your Lordships when considering framework legislation. We acknowledge that there are some unfair dismissal cases, such as those where there is a significant dispute around the facts of the case, which might be more appropriate for a full panel to hear. Indeed, this was accepted in the consultation paper and our response document. But there will equally be claims which an employment judge sitting alone will be perfectly well qualified and able to determine.
The noble Baroness, Lady Prosser, suggested that there was a risk that employment judges are insufficiently in touch or in tune with industrial good practice. Employment judges come from a wide variety of backgrounds and many have practical experience of managing staff. The fact that a judge might not be in tune with industrial good practice does not necessarily make them less likely to be able to assess evidence. What is critical, irrespective of the nature of the proceedings, is that the person making the determination is able to assess the evidence presented to him or her. Employment judges are trained specifically for this purpose and they carry out their functions to the highest of standards. In fact, the academic research from Greenwich and Swansea suggests that lay members may not always have relevant and recent experience in industry themselves. Indeed, it reported that there was a broad perception that they had less direct workplace experience than previously may have been the case.
My noble friend Lord Hodgson asked whether it was the Government’s view that judges sitting alone will speed the process up. We certainly intend that it will. We will be monitoring that closely. The noble Baroness, Lady Gibson of Market Rasen, asked how one person can be better than three.
Lord Hodgson of Astley Abbotts
My Lords, the point about speeding up refers to speeding up the process as a whole. I agree with that point but if the Minister’s department can spend some time trying to make the wheels of justice grind faster, it would be very helpful. Small firms find this long elapse period very debilitating.
Lord De Mauley
I am most grateful to my noble friend for that point and we will certainly bear it in mind. As regards the point made by the noble Baroness, Lady Gibson, about one person being better than three, her noble friend Lady Donaghy said that the Government’s support for lay members rings hollow. But I assure noble Lords that we value lay members, as do employment judges, as the noble Baroness, Lady Gibson, and others have said. Judges will sit with lay members where they add value. Judges are expert in employment law and they see cases every day. But, as the noble Lord, Lord Jones, said, value for money is important.
The noble Baroness, Lady Drake, said that the industrial jury concept should not be disturbed and suggested that the tripartite panels give confidence, legitimacy and authority to the tribunals. In common with all other types of complaint that might be heard by an employment judge sitting alone, the judge will have, as I have said several times, discretion where he or she thinks it necessary to choose to sit with lay members. Despite the scepticism of the noble Baroness, this discretion, alongside the professionalism and expertise of employment judges, which stakeholders from all perspectives have recognised, should mean that all users maintain the same high levels of competence in the system as now. Civil courts up and down the land have lone judges making decisions and that is not just in criminal cases, as the noble Lord, Lord Jones, mentioned.
The noble Baroness, Lady Drake, also suggested that the potential benefit may not be worth it. Predicting what savings will be made across the 10,000-plus unfair dismissal complaints heard each year is difficult, given the need for judges to exercise discretion and assess what cases might require full panels. The savings, which were conservatively estimated in our impact assessment, might not be considered significant but as a Government we must take all measures to ensure that taxpayers’ money is used to best effect.
The noble Lord, Lord Lea of Crondall, who quoted the impact assessment, asked why we are legislating now rather than waiting for the Underhill recommendations. The terms of reference for the Underhill review relate clearly to procedural rules. The constitution and composition of the tribunals, as distinct from the procedural rules, particularly given the resource implications associated with judicial and member sitting, is a matter properly for Ministers and for Parliament. Furthermore, there is no reason to await the outcome of the Underhill review when the Government have concluded that there is a case for change.
The noble Baroness, Lady Turner, asked about fee charging in an employment tribunal. Although this is not one of the matters we are principally discussing today, let me say that most people will never use an employment tribunal in their lives; yet the taxpayer funds the system at a cost of £85 million. The objective is to transfer the cost burden from taxpayers to the users of the system.
I appreciate the points that have been raised. I will go away and reflect on them carefully. Certainly, if there is anything on which I have not responded, I will write to noble Lords.
Baroness Gibson of Market Rasen
The Minister’s response has shown how controversial these issues are. It has always been the practice that we have discussed in the Moses Room things that are not controversial. Usually when I am in the Moses Room I am in the chair, so I am able to listen to everything that is going on. Will there be a possibility of these orders being discussed in the Chamber? I do not know who took the decision to have them in the Moses Room. I think that this discussion should have been held in the Chamber.
Lord De Mauley
The noble Baroness makes a fair point. Under the process we are going through today, we are asked to consider. We are not asked to come to a final conclusion. As the noble Baroness knows, these orders will come to the Chamber. I believe that there is the chance that the Opposition may lay a Motion.
Lord Young of Norwood Green
I do not know whether the usual channels have yet exchanged views on this but I think that they will soon—I think on that we can rest assured.
Earlier, someone paid a short tribute to Lord Wedderburn.
Lord Young of Norwood Green
I should like to echo that. The debate would have gone on considerably longer but, nevertheless, he made a massive contribution to employment law and is sadly missed today.
Lord De Mauley
I entirely support that comment by the noble Lord, Lord Young. I commend the order to the Committee.
Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012
Lord De Mauley
That the Grand Committee do report to the House that it has considered the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012.
Relevant documents: 41st Report from the Joint Committee on Statutory Instruments.
House of Lords
Economy: Quantitative Easing
(12 years, 7 months ago)
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Lord Barnett
To ask Her Majesty’s Government why the Chancellor of the Exchequer agreed the latest increase in quantitative easing.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, the independent Monetary Policy Committee has operational responsibility for monetary policy. The MPC judged in February 2012 that without further monetary stimulus it was more likely than not that inflation would undershoot the 2 per cent target in the medium term. The Chancellor agreed that an increase in the asset purchase ceiling would provide the MPC with the scope to meet the inflation target in the medium term and gave his authorisation to proceed.
Lord Barnett
My Lords, I thank the Minister for that Answer. That increase was initiated by the Monetary Policy Committee but, under the terms of the original agreement in 2009, the Chancellor had to give his consent—which I assume he did. The current Chancellor took over that policy. As I understand it, he said at the time that it was a “leap in the dark”, designed because all other government policy had failed. Does he still feel that that is the case, or has he changed his mind? What does he now expect from QE?
Lord Sassoon
My Lords, I reiterate that the MPC has operational control and freedom here. The Government, on behalf of the taxpayer, indemnifies the Bank against losses, so of course any increase in the limit of the asset purchase facility has to be authorised by the Treasury. As to what people’s quotes might be, I know that I get into trouble if I start questioning whether the noble Lord, Lord Barnett, has correctly quoted my right honourable friend. I am sure that he did, but in completely different circumstances. The situation now is that we have tight fiscal policy. Against that discipline, the monetary policy of the Bank of England can be conducted with confidence. Tight fiscal discipline and loose money is the policy prescription. I suspect that that was not the policy prescription when my right honourable friend made that quote.
Lord Bilimoria
My Lords, can the Minister tell us of the effect of QE in helping lending flow through to SMEs? We hear about feast and famine with regard to lending to SMEs. Has QE really helped in banks lending to SMEs?
Lord Sassoon
My Lords, the estimate of the effect of QE was set out in the Bank’s Q3 quarterly bulletin in 2011. The Bank estimates that quantitative easing raised real GDP by around 1.5 to 2 percentage points, so it has had a very significant impact on the real economy. As to the flow of credit to SMEs, that is not the purpose of quantitative easing. The purpose of quantitative easing, as I have attempted to explain, is for the Bank of England to meet the 2 per cent medium-term inflation target. Credit easing is a government policy and, in the next few days, details of the £20 billion national loan guarantee scheme will be unveiled. It is targeted at credit easing for SMEs, which is still a very important issue.
Lord Newby
My Lords, will the Minister underscore his last comment in that credit easing is now seen as crucially important in getting funding into SMEs? Can he confirm reports in the papers yesterday that the overall impact or scope of credit easing might not be the £20 billion which he has just mentioned but might increase over time to £40 billion?
Lord Sassoon
My Lords, I am certainly not going to pre-empt any announcements this week of that kind or any other, or I may not be here to answer the next Question at the Dispatch Box. I think that the £20 billion, which has already been announced, and reducing the interest rate that SMEs would otherwise have to pay by the order of 1 per cent would be a very good start.
Lord Peston
My Lords, can I ask the Minister whether he agrees—which he seemed to say—that quantitative easing is part of monetary policy? If it is part of monetary policy, what business is it of either the previous Chancellor or the present one to claim that they have a decision-making role in this matter, since the Bank of England Act makes it absolutely clear, when discussing the reserved powers of the Treasury, that they can intervene only if they lay before both Houses of Parliament an order authorising them to intervene? Have not the Chancellor of the Government whom I supported and the present Chancellor both been acting illegally?
Lord Sassoon
No, my Lords, even the previous Chancellor, I am happy to say, was not acting illegally in this matter and the current Chancellor certainly is not. As I have already explained to the noble Lord, Lord Barnett, the only reason for the Chancellor having to authorise this is because HM Government indemnify the Bank for any losses that it may suffer by exercising purchases under the asset purchase facility.
Lord Pearson of Rannoch
My Lords, does the noble Lord agree that over history printing money has usually, if not always, led to inflation? If he does agree, can he tell your Lordships why quantitative easing will not do so this time?
Lord Sassoon
No, my Lords, I certainly will not. It has actually led to inflation already. In the estimates made by the Bank of England in the third quarter bulletin in September last year, it was estimated that quantitative easing had raised UK inflation by around 0.75 to 1.5 per cent. I firmly believe that the greater benefit of raising real GDP by around 1.5 to 2 per cent was what really mattered in the economic circumstances in which we find ourselves. Then the question is what happens to the unwinding of QE? The stock will be held and sold back into the market in due course.
Lord Eatwell
My Lords, the noble Lord’s reference to growth of GDP is rather odd, since that is no responsibility of the Monetary Policy Committee. Its responsibility is for inflation and, as he said, it added to inflation last year which, as noble Lords will remember, was already at 5 per cent. How does the noble Lord judge the success of QE and how is it to be balanced against the decimation of the annuities of hundreds of thousands of pensioners as a result?
Lord Sassoon
My Lords, first it continues to be the judgment of the MPC that if it had not acted on this operation under the asset purchase facility inflation would undershoot the 2 per cent target in the medium term. I remind this House that inflation has already come down from 5.2 per cent on a CPI measure last September to 3.6 per cent in January and is expected by the Bank, and most other commentators, to fall very considerably during this year. The success of QE will be measured on the performance of inflation.
As to the question of savers and pensions, as the deputy governor, Charlie Bean, said on 21 February:
“While annuity rates have fallen, that is only part of the story. Those pension funds will typically have been invested in a mix of bonds and equities, with perhaps a bit of cash too. The rise in asset prices as a result of quantitative easing consequently also raises the value of the pension pot, providing an offset to the fall in annuity rates”.
Banking: Accounting Standards
(12 years, 7 months ago)
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Lord Flight
To ask Her Majesty’s Government whether they have any plans to review the application of international financial reporting standards accounting standards to the banking sector.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, following the financial crisis, the International Accounting Standards Board has taken steps to revise international valuation standards for complex financial instruments. The question of whether there should be a distinct accounting regime for banks was raised in the preliminary report of the Financial Reporting Council inquiry into going concern, chaired by my noble friend Lord Sharman. The panel is considering the response to this report at present. We await its final report with interest.
Lord Flight
My Lords, in reply to a question on 19 December the Chancellor of the Exchequer advised that there needed to be a debate about the role of IFRS in the banking crisis. On 19 January, the head of financial stability at the Bank of England commented in a speech that banks needed accounting standards other than IFRS. Does the Minister agree that IFRS contributed to the banking crisis, as it served both to exaggerate profits and capital in good times and vice versa in bad times, and is in need of review?
Lord Sassoon
My Lords, having a look at accounting standards in relation to banks is certainly significant. I would not go as far as saying that IFRS had a fundamental role in relation to the financial crisis. There is not significant evidence of that although, as I have had it rather neatly described, you could perhaps describe accounting standards as an accomplice after the fact rather than as being responsible. There are issues that very much need to be looked at. The review that the IASB is doing, very much with the encouragement of the G20, of the financial instruments standard known as IFRS 9, the work that the Financial Reporting Council is doing, which I have referred to, the inquiries coming out of your Lordships’ committee and the most recent hearing last week will all contribute to an important ongoing debate.
Lord Lawson of Blaby
My Lords, is my noble friend the Minister aware that my noble friend Lord Flight is on to a very important point? It is quite clear that accounting standards have created a major reduction in stability in the banking sector. They had a major part to play, and IFRS has simply made this worse. Has my noble friend the Minister read the Hansard report of the debate in the Grand Committee of Wednesday last week, in which these matters were among those discussed? If not, will he please do so and will he also listen to what Mr Andy Haldane, the director of banking stability at the Bank of England, which is responsible for these matters, has had to say on them?
Lord Sassoon
My Lords, I have not read every word that was said in the Committee last week, but I have certainly read the very interesting remarks of my noble friend Lord Lawson of Blaby and the very challenging seven proposals that he made, many of which the Government are already acting on in the structure of banking and regulation. I do not dismiss this issue at all, but there is a tension between the transparency and other requirements of investors on the one hand and the requirements of prudential regulators on the other. There are very difficult issues of conflicting objectives here, which it may be impossible for one set of figures fully to reconcile. However, I take my noble friend’s suggestions very much to heart.
Lord Eatwell
My Lords, as the noble Lord pointed out, the Financial Reporting Council is playing an important role in reviewing the IFRS proposals. However, the FRC also seems to be contemplating the abolition of the UK Accounting Standards Board. Do the Government agree with this, and will it not leave the UK without the expertise and credibility necessary to make an effective contribution to the international debate?
Lord Sassoon
My Lords, the structure of the various bodies that fall under the Financial Reporting Council is a matter for the Financial Reporting Council. I do not believe for one minute that anything it does to the structure of the number of bodies under the FRC will weaken the very distinguished and important contribution which the UK makes to international standard-setting.
Lord McFall of Alcluith
My Lords, has the fatal flaw not been the ability of banks and other financial institutions to book future projected income as profits—profits which did not materialise and on which bonuses were paid, thereby skewing the incentives of the whole financial sector industry? There is a time here for reassessment, and that is a black hole at the centre of these proposals.
Lord Sassoon
Again, this is an important issue. The Government have taken significant steps to increase both the transparency and the FSA rules around the payment of bonuses. However, we should be careful about this. First, it is worth noting that under UK GAAP, before IFRS was introduced, banks were required to account at fair value for their trading portfolios. Of course, accounting at fair value requires assets to be marked both up and down. It is certainly the case that under IFRS there were certain portfolios that previously would not have been counted as trading portfolios, which now are. However, we have to be very careful about attributing all that went on with banking bonuses to the accounting requirements. If I may suggest so, that was a small part of what was undoubtedly a series of inappropriate behaviours at the heart of the industry.
Lord Phillips of Sudbury
My Lords, given the importance of the matters to which my noble friend has alluded in answering this Question, might he put a plain Peers’ guide to the intricacies of the various bodies he has enumerated in the Library?
Lord Sassoon
My Lords, I will see what I can do. I have mentioned everything this afternoon from the G20 through to the Bank of England, the FSB and the FRC. I will see what I can do, but it is a big ask.
UN: Sustainable Development and Family Planning
(12 years, 7 months ago)
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Baroness Tonge
To ask Her Majesty’s Government whether they will promote the connection between sustainable development and family planning at the Rio+20 United Nations Conference on Sustainable Development.
Baroness Northover
My Lords, the coalition Government’s positions on sustainable development and family planning are clear. We will be emphasising the links between them, both in the preparations for and during the Rio+20 conference.
Baroness Tonge
I thank my noble friend for that reply. I congratulate the Government on their commitment to family planning and to stabilising the world’s population by choice. This is essential for sustainable development. However, will the Minister confirm that the Government will seek to have family planning included in the post-millennium development goals framework when it is discussed?
Baroness Northover
The noble Baroness has contributed enormously in this area and I thank her very much for the tribute paid to the department for its expansion of work on this issue. The Government are well aware of the background to the initial MDG negotiations. Discussions are very much in the early stages for a post-MDG framework post-2015. The UK will work to ensure that all the relevant development issues are included in the most appropriate way possible.
Baroness Kinnock of Holyhead
My Lords, it is welcome news that the European Union plans to propose a new section to the Rio+20 outcome document to include population and health, and reproductive health and contraception. Will the Minister assure the House that efforts will be made by DfID to ensure that the delegation to the Rio+20 conference includes a representative who will be able to champion and lead on these issues, and will also be able to ensure that the linkages between population, reproductive health and family planning with sustainable development are understood?
Baroness Northover
My Lords, I will take that specific suggestion back. I point out to the noble Baroness that the Deputy Prime Minister is leading this delegation to Rio and I am very pleased that that is the case. She will know how he has emphasised the importance of placing women and girls centre stage with regard to development, which is what is required here.
Baroness Afshar
My Lords, is the Minister aware that the most effective family planning in the Third World comes through education—that is what makes women into an asset rather than a liability—and that preventing women having children is not the best way of approaching this? This is not a medical matter but a matter of society providing education. What plans are there for helping with girls’ education so that they can progress?
Baroness Northover
The noble Baroness is right. This is a circular issue: where girls have more access to education you see the birth rate coming down, and where the birth rate is coming down girls have more access to education. When families are able to choose, they tend to choose to have fewer children and to invest more in them, and that certainly includes education.
Baroness Gardner of Parkes
My Lords, is it not a fact that, in these countries where health standards are improving and children live longer, there is no longer any need to have a very large family because so many die very young? This comes back to the issue raised by the noble Baroness, Lady Afshar; that educating mothers, in particular, in health processes and in how to care for their children and for their health will have an effect.
Baroness Northover
My noble friend is right, and I emphasise again the importance of investing in education, which then has the effects that she is talking about. I note also what are described as the demographic dividends: if you have fewer children who are dependent and therefore an expansion of the working-age population, there is an economic benefit to the countries in question. That is regarded as one of the factors in the development of the east Asian countries in particular.
Lord Harris of Haringey
My Lords, does the Government’s commitment to education on family planning and contraception around the world extend to education in schools in this country, particularly academy schools and so-called free schools? Will the Government confirm that they will follow a curriculum that has a full range of education including in respect of family planning and contraception?
Baroness Northover
My Lords, that question is slightly wide of scope but I refer the noble Lord to the Answers given by my noble friend Lord Hill assuring the House that this area is extremely important wherever it is found.
Baroness Hussein-Ece
My Lords, is the Minister aware that, following the Somalia summit hosted by the Prime Minister last month, it was agreed that security and justice were essential both to a successful political process and to development, yet when I was part of the recent British IPU delegation to the UN Commission for Women last month, we were told by NGOs there that Somali women would not be part of the delegation to Rio as security is “not an issue for women”? Does the Minister agree with me and with the UN Women Executive Director Michelle Bachelet that listening to and supporting rural women is fundamental to ending poverty? What representations will Her Majesty’s Government be making to address this?
Baroness Northover
My noble friend is right. Rural women and girls currently have limited access to all sorts of resources. Often it is difficult for them to participate in conferences like this, yet it is very important that they do. Ultimately, of course, it is for the Governments themselves to determine the make-up of their delegations. We can but encourage and make the points that my noble friend has made about the importance of this issue.
Viscount Craigavon
My Lords, while accepting that education is extremely important in this area, does the Minister agree that there is already an expressed and unmet need of over 200 million couples for contraception and family planning? She mentioned in her Answer what we wanted to talk about at the summit, but is this subject actually on the agenda, or have we still got to get it on the agenda?
Baroness Northover
It is one of the issues that we are flagging up. The noble Viscount will know that DfID is hosting a large conference in July on this. It is part of the emphasis that we wish to make in development generally and, of course, it is extremely relevant to Rio.
Libya
(12 years, 7 months ago)
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The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, we share the transitional Government’s desire for a stable, prosperous and united Libya. This will be most effectively achieved if all groups are represented and have a voice. We look forward to elections in June, which provide an opportunity to achieve this goal. As in any democratic process, we expect groupings to be represented on a variety of themes. This may include tribal factors, but also regional, ethnic, gender and other political factors.
Lord Judd
I thank the Minister for that Answer. Does he agree that this underlines the imperative of being certain that, when intervention is made abroad, there is the most thorough study of the history and underlying social structural realities of the country concerned? In this context, what have we learnt from Iraq and Afghanistan that is of relevance to the situation in Libya?
Lord Howell of Guildford
Policy-makers seek to learn at all times, but against the noble Lord’s experienced comment I must put the rival comment that circumstances differ enormously in different situations, events, times of history, and as a result of the different histories and past of the countries concerned. We faced in Libya a unique situation: a country that had been in tyranny, had visited terrible crimes on this country, and that was on the verge of further massacres. We should be glad of and applaud the courage of my right honourable friend the Prime Minister and other Ministers when they decided to support from the air the opposition in Libya at the time. It has brought a much happier Libya, as all the statistics show, and it has defied all the so-called experts, who a year ago said that nothing would work and that it would be a stalemate and a disaster. It is nothing of the kind.
Lord Avebury
My Lords, my noble friend said last July that the Tuaregs should be able to enjoy the full benefits of citizenship and that we had made representations to the transitional national council to this effect. What steps is the TNC now taking to confer citizenship not just on the Tuaregs but on other tribes who were deprived of documentation under the dictatorship, such as the Toubou, the Awlad Suleiman and the Shaama people? Have we also asked the TNC to amend as a matter of urgency Article 3 of the electoral law, which provides that voters must have held citizenship for at least 10 years? Otherwise, some 200,000 people may be deprived of the vote in the June elections.
Lord Howell of Guildford
We have already advised on the benefits of a democracy that allows full rights for voting for the Tuaregs and all Libyans; and we will continue to do so. As to the particular issue of Article 3, I cannot tell my noble friend whether we have raised that specific matter in dialogue with the Libyan Government, but I will seek to ensure that Article 3 is raised if it has not been already.
Lord West of Spithead
My Lords, I supported the action in Libya. It was the right thing to do. However, further to my noble friend Lord Judd’s Question, is there not an irresistible logic that if you go into countries—I am not saying Libya per se, but any country—to change a despotic regime that is massacring and killing its citizens, and I understand all the imperatives of that, if the regime that takes its place starts doing the same, we have to go back in again. Would the Minister agree that that is the case?
Lord Howell of Guildford
We are at the same point as we were a moment ago: it is different in different countries. I agree that certain responsibilities are required. If the outside world decides to intervene, whether for humanitarian reasons to prevent a massacre or because there is open, recognised and legally agreed international pressure to change a regime, those who intervene must have some responsibility for the regimes that follow. These are agonising decisions, which are different in every case. They are currently very prominent in Syria, where we see hideous atrocities unfolding. The question of how those who care for human life and want to uphold civilisation should best intervene is very difficult, as I know the noble Lord fully understands from his previous responsibilities.
Baroness Falkner of Margravine
My Lords, does my noble friend agree that democracy is a far better protector of diversity and pluralism within societies than tribalism, particularly if tribalism leads to conflict?
Lord Howell of Guildford
That is unquestionably so. This is the issue that we are now discussing. Libya was and remains a country with many different tribal groups, not all of which necessarily live in tight geographical locations. They are often rather mixed up. Many different forces are at work in Libya, but overall, as a democracy, it is our advice to other democracies that their future will be best assured by pursuing the democratic method.
I should add that the recent survey of what has happened in Libya leaves us with figures that show that 97 per cent of Libyans think that the revolution was absolutely right; 66 per cent support a semi-centralised Government, with ministries spread across Libya; and 79 per cent expect their lives to better a year from now. These are pretty decisive figures, which indicate that if we push for more democracy we are all on the right lines.
Lord Desai
My Lords, do the Government have any plans to help Libya to conduct a good election by pointing to the Commonwealth experience in these matters?
Lord Howell of Guildford
The Commonwealth experience is available, and I know that there are leaders in the Commonwealth who are quite ready to provide any advice, support and help that they can. The Commonwealth’s role in monitoring and administering elections is particularly valuable where new constitutions are in the making, as in Libya. Commonwealth leaders have certainly indicated that they stand ready to help in any possible way.
Health and Social Care Bill
Lord Owen
My Lords, I beg leave to present a Petition from 38 Degrees, which prays that, in considering the matter of the NHS risk register, noble Lords remember that risks posed to our NHS by the Health and Social Care Bill are matters of significant public concern. The Petition, which I have already deposited with the Clerk of the Parliaments, bears over 486,000 electronic signatures.
Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2012
Lord De Mauley
That the draft regulations and order laid before the House on 7 and 27 February be approved.
Relevant document: 41st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 13 March.
Health and Social Care Bill
(12 years, 7 months ago)
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16:41 - Division on Lord Owen’s amendment. - Ayes: 213 / Noes: 328 - Amendment disagreed.
19:33 - Division on Amendment 17 - Ayes: 209 / Noes: 267 - Amendment 17 disagreed.
20:20 - Division on Baroness Thornton’s amendment. - Ayes: 174 / Noes: 269 - Amendment disagreed.
Lord Owen
To leave out from “that” to the end and insert “the Bill be not read a third time until the House has had an opportunity to consider the detailed reasons for the first-tier tribunal decision that the transition risk register be disclosed and the Government’s response thereto, or until the last practical opportunity which would allow the Bill to receive Royal Assent before Prorogation”.
Lord Owen
My Lords, this is rather a strange situation. We are coming to the end of an extraordinarily long process of debate, yet there is still one element that is not directly related to the Bill and much more concerns constitutional questions and the Freedom of Information Act. Throughout the Bill, various attempts have been made—mainly by those on the Cross Benches and the Opposition, it must be admitted—to use the Freedom of Information Act to reveal more information. That is a common situation that will be familiar to all Peers: in opposition we seek to use the Freedom of Information Act and in government we tend to try to clamp down on it. I myself tried to obtain the legal advice to the previous Labour Government in 2006 on the implications for introducing “any willing provider” provisions and other aspects as regards EU legislation. The Information Commissioner rejected my application. I accept that because the Freedom of Information Act has been very well established, with a commissioner who makes recommendations. These can be challenged by government or any other interested party. The commissioners can then decide on whether to uphold them and then there is a further appeal.
What is extremely unusual about the request that this register be disclosed—the transitional register, which relates more to the legislation—is that two decisions under the Freedom of Information Act have upheld disclosure. It was a surprise to quite a lot of us that the first decision by the Information Commissioner was that the register be disclosed—in fact, there are two registers. What became interesting was that the tribunal was going to have the matter referred to it. I pay tribute to the noble Earl, Lord Howe, who, on behalf of the Government, recognising the dilemma that we might be in in this House, having come to our normal discussions on the Bill and wanting to hear a decision, asked the chairman of the tribunal, Professor Angel, to bring forward his hearings. That was done and the tribunal sat on the 5th and 6th of this month. Again, its decision was against the Government and was that this register which relates to the peculiar circumstances of this very complex and long legislation should be disclosed.
It is fair to say that the Government have another appeal procedure open to them. There is another tribunal that they can go to. I make it clear that I do not believe that any Freedom of Information Act worth the name would ride roughshod over the legitimate case of the Government to hold back information and, furthermore, to receive information that is confidential to them during the process of legislation or of good government. As we know, the previous Cabinet Secretary went to the tribunal and argued—and I do not disagree—that civil servants, when asked to make risk assessments, wanted to feel confident that they could raise the unspeakable, if you like, with Ministers and not feel hesitant about bringing forward risks.
However, risks go to the core of this legislation, and that is the most important thing about it. The issue before the House is whether the risks of continuing with the legislation—no one believes that there are no risks—are greater than the risks of stopping the legislation. Few would disagree that there must be some risks in stopping legislation, having continued with it this far. This is, if one likes, a balance of judgment. My premise and my plea to the House is that, before making a final decision, all those who respect freedom of information and the world that we now live in with a viable Freedom of Information Act should at least await the decision of Professor Angel and the tribunal. That is all I ask for.
The question is a practical one. Are there enough weeks or days available to the House before Prorogation? I took soundings and it was very clear—certainly among Cross-Benchers, who I am bound to talk to more than others—that there was no belief that this issue should block the legislation; they did not think that it would be appropriate. There was a lot of substance in their argument. Whatever one’s views about the Bill, that can be discussed at Third Reading. The question here was whether we could frame an amendment that would give the Government the freedom to bring this issue back before Prorogation. I used the words,
“until the last practical opportunity which would allow the Bill to receive Royal Assent before Prorogation”.
We are not therefore discussing whether the Bill should go forward. This is not by any standard a blocking measure. Nor, I suggest to the House, would we really be sensible to make a decision in principle whether the tribunal’s judgment should be upheld. It is anyhow, as I said, open to the Government to go to another appeal.
What seems to me pretty important is to listen to what the tribunal has decided. It has made a complex judgment, because it decided that the overall risk assessment should not be published but the transitional risk assessment should. A lot of people are still not sure how that distinction could have been made, but it has. We passed the legislation for freedom of information. I think it was an extremely good piece of legislation. It was put on the statute book in 2000 and was modified in 2005. As I said, it is not a complete licence for anyone to go in to get everything published that they might want. There are checks and balances. It seems to me that we should respect those checks and balances and await the decision.
There is a political and practical reason also, quite outside that. Those of us who have spent many hours and days on the Bill know that we can easily be in a bubble in which we discuss the line by line amendments and the practical wording of the legislation, but I suggest to the House that we are in a very unusual situation. On Friday, the result of a poll held among members and fellows of the Royal College of Physicians was announced. I have an interest to declare. I am a fellow of the Royal College of Physicians and I voted. Thirty-five per cent voted, which, given the circumstances—ballots also go to overseas members—was a pretty high poll, and 69 per cent voted that the legislation should not go forward. Only 6 per cent believed that it should.
Everyone in this House makes their own judgment about a Bill. Pressures from outside, electronic petitions and opinion polls among royal societies come and go and we still make our decisions. I have no complaints about that and I do not believe that the medical profession has any particular monopoly of wisdom on this issue. What is staggering about the legislation is how it has been opposed by practically everybody who works in the health service. I refer not just to unions such as the BMA and the Royal College of Nursing, which have dual functions, both representing their professional bodies. Every royal college that balloted its members has come up with that conclusion.
All I am saying to the House in all sincerity is that we should follow due process on this Bill. Let us demonstrate to everybody that, even if they disagree with it, if the Bill is passed, they must co-operate with the legislation of the House. They must accept it in good will as the judgment of Parliament and they must work within the legislation. But do not leave unfinished business, do not leave out one massively important issue, which is to hear the view of the tribunal that we erected in the legislation and gave the freedom to make a judgment, and which has twice opposed the Government's judgment. I rest my case.
Lord Fowler
My Lords, I intervene briefly. I listened carefully to what the noble Lord said, but I am not sure that this is just a matter of practice, as he said at the beginning—although by the end he was coming very firmly round to the view that he was an all-out opponent of the legislation itself. I think that there are questions of principle here as well, and not just the principles that he enunciated.
I am not a member of the “keep everything secret” brigade—rather the opposite. If we had taken more notice of the Information Commissioner’s report in 2006 on the unlawful trade in professional information, we might not have had to wait until 2012 for the inquiry into phone hacking, and the rest. I also argued against the 30-year rule for the disclosure of Cabinet papers as wrong and unnecessary and remain critical of the previous Government’s response to that, which was to reduce it to 20 rather than 15 years, as recommended. I think that had more to do with disclosure on Iraq than it did a matter of principle.
I also believe that when it comes to the publication of risk registers, other issues need to be taken into account, not least the relationship between Ministers and civil servants. I suggest that this is why no Government in the past has agreed to a policy of publication. In my view, Ministers are responsible for the decisions taken, and it is for civil servants to advise. That is their skill and their role, and anyone who has ever put a Bill through Parliament knows well enough that if they are any good, civil servants do not simply sit there saying, “Yes, Minister”. They debate and argue with the Minister and warn of the risks as they see them. It is one of the very good features of the relationship between Ministers and the Civil Service in this country.
The problem with publishing all the risks, from the possible to the highly improbable, is that the relationship itself seems to be brought into some doubt. Civil servants, whether they liked it or not, would be dragged into the debate. We all know exactly what would happen: the risk register would be used to undermine the measure being proposed. The aim would be to show that Ministers were in conflict with their own staff. The opponents of a Bill such as the one before us today could say that not only was the BMA against the Bill—it is not exactly news that the BMA is against any new measure put forward since 1947—but also, by selective quotation, that the Civil Service itself had profound doubts. Whether one liked it or not, the Civil Service would be brought into controversy and people would try to portray conflict. I do not see, frankly, how that is in the public interest.
The party opposite has not shown any interest or inclination in the past to go down this road as a general policy line. This would simply place new obstacles in the way of legislation and change. I wonder how a risk register could have been used at the inception of the health service in the 1940s. Doubtless it would have pointed to the problems implicit in such a massive reorganisation and to the risks that costs could escalate. Not every civil servant would have shared ministerial confidence that a better health service would mean improved health and therefore a reduction in costs.
It comes down to the fact that in these cases there is a matter of judgment on the part of Ministers, having listened to the arguments and the advice of the Civil Service, in putting their proposals before Parliament. I entirely understand the later amendment of the noble Baroness, Lady Thornton, which seeks to deny a Third Reading to this Bill. That is perfectly straightforward: she sets out the reasons for it. I do not happen to agree with her, as she knows, but I do not have any doubt about her right to do this. Frankly, however, I cannot see the value of this amendment seeking delay on grounds that I do not believe to be in the public interest.
Lord Mackay of Clashfern
My Lords, since Second Reading in this Chamber, this House has carried out a very thorough public scrutiny of this Bill. In doing so, it has had the advantage of the expertise of practitioners and former practitioners with great experience from across the medical, surgical, nursing and social work professions, and also those with experience of administration of those services. Further, it has had the advantage of former health service Ministers and of the skilled, eloquent probing of the Bill’s provisions by the opposition Front Bench: the noble Baroness, Lady Thornton, the noble Lords, Lord Hunt of Kings Heath and Lord Beecham, and the noble Baroness, Baroness Wheeler. We have also had the expertise of the noble Lord, Lord Owen, himself not only a former Health Minister and writer on health matters, but also a director of a large American pharmaceutical company for quite a number of years. In addition, as the Bill has proceeded, we have received detailed briefing from many people currently working in the health and social work services.
The scrutiny was completed last week. In that situation, we would grossly underestimate the breadth and depth of that scrutiny if we accepted that a register, prepared 15 months ago by civil servants in the privacy of the Department of Health before the Bill was introduced and before the very large number of amendments were made to it, could add substantially to our understanding of the Bill. Therefore, in my submission, at this stage this amendment to the Motion is inappropriate. At the very best, it refers only to the tribunal’s decision; it does not refer, except indirectly, to the register. In my submission to your Lordships, the register prepared so long ago in privacy by civil servants cannot be expected to add substantially to what we know already.
Baroness Jay of Paddington
My Lords, as the House knows, I chair your Lordships’ Constitution Committee, which has produced two reports on the Bill. As everyone has said, the Bill is enormously complicated and very detailed, and we have been very detailed in our consideration of it.
I support the amendment of the noble Lord, Lord Owen, because the noble Earl the Minister has, as we all know—and we have all paid due respect to him on this—been enormously helpful to the House’s consideration and the production of amendments. The Constitution Committee itself produced very important amendments on the Secretary of State’s role on this. All this has demonstrated the very sound, elaborate and good processes by which this House and its Select Committees, as well as the many experts, as the noble and learned Lord, Lord Mackay of Clashfern, has just mentioned, have contributed to the debate. We have proceeded on this in an extremely sensible, measured and considered way.
The Government have been very generous and the Minister has been particularly generous in accepting amendments and entering into discussion. Having listened to the noble Lord, Lord Owen, I think he is saying that the House should continue to follow the very good process that we have had in formulating our opinions on the Bill. We have taken time and have deliberated very carefully. The House has listened to many views, including those of its Select Committees and of its many expert Members. As the noble Lord, Lord Owen, said, we have also listened to many people outside.
Over the weekend, I have been particularly amazed at the last-minute contributions from, for example, the Royal College of Physicians. The noble Lord, Lord Owen, mentioned one online petition, and I have received another from the organisation Avaaz, signed by 110,000 people. The cumulative figures suggest that in the past few days more than 500,000 people have signed online petitions specifically relating to the amendment of the noble Lord, Lord Owen, not to the more general point.
I say to the House that we have followed the processes very well indeed in relation to this Bill. We have agreed to disagree on some things, and the Government have accepted amendments where they have accepted the arguments. In following the processes, which this House has created very successfully over the years, we have used our best efforts with regard to the Bill, and we can lose nothing by continuing to follow those processes and, finally, by taking note of the tribunal’s report, as the noble Lord, Lord Owen, has suggested.
Lord Birt
My Lords, I rise to underline some of the arguments articulated by the noble Lord, Lord Fowler. A risk register is a key prerequisite of any effective organisation, whether public or private. I have had experience of a variety of registers in both the public and private sectors. When I worked at No. 10, I was a member of the Cabinet Office Strategy Board, and one of the tasks of that board was to consider what was effectively the national risk register.
What is the purpose of a risk register? It is to identify all risks. Every risk register that I have ever looked at has been kept highly confidential because it has always been gory and hair-raising to read. The purpose of identifying worst-case risks is to do your best to prevent them and, if you do not prevent them, you need to work out, in advance, what you will do if bad things happen. To create an effective risk register, you need to—
Baroness Thornton
Is the noble Lord aware that all NHS organisations, strategic health authorities, PCTs and local authorities have risk registers and they publish them?
Lord Birt
I shall come to the risks of publication in a second. What are the means of creating an effective risk register? You need to involve those in governance and delivery and you need absolute candour and trust in the process. The consequence of making any risk register public is that it will be anodyne and the risks would simply cease to be managed, which is not in the public interest. I would hope that Governments of any persuasion would resist the notion of publishing any risk register. It is a matter of regret that one risk register in respect of Heathrow was published. It follows from that that I am unable to support the amendment.
Lord Peston
I support the noble Lord, Lord Owen, in what I regard as a special case. I think he, too, is arguing that this is a special case. As background, perhaps I may refer to my experience last week when I spent quite a long time at St Thomas’s Hospital, where I think the noble Lord, Lord Owen, was a most distinguished graduate. I was an NHS patient and my experience was of a service working exceptionally well medically, not wasting resources, and staffed by people devoted to the care of patients. Those to whom I spoke told me that that was why they had entered the medical profession; they wanted to work in hospitals. In other words, my experience was diametrically opposed to the basis on which this whole Bill is put forward by the Secretary of State, who constantly attacks the NHS, constantly argues that it wastes resources and constantly argues that it needs private sector involvement in order to make it work properly.
The reason for wishing to see the risk register, which I regard as fundamental in this case, is to ask the question: was the Secretary of State warned of this? Did anyone place before him the information and the argument that his account of the NHS does not correspond to reality as experienced by those of us who use it? That is why it seems to me that the noble Lord, Lord Owen, is asking to see the documentation. Those of us who have advised Governments are perfectly well aware that Ministers have many different views put before them. We are perfectly well aware that civil servants have their own agendas and there is nothing surprising about that. Equally, those of us who have advised Governments know that all decision-making involves risks, so to try to pretend that there is no risk and that there is a case for keeping it secret seems preposterous.
Last week, we heard the approach of those who are still dyed-in-the-wool opponents of anything appearing in the public domain. I hate to say it but such people were involved with our own Government not that long ago, although I thought that we had abandoned those days and that openness had become our touchstone. Last week, I said to the Minister that when I gave advice, I would have been insulted at the suggestion that I did not say to a Minister what I actually thought and, if I were told that what I had said was in the public domain and asked to tone down my remarks that what they were thinking of was stupid, I would not have done so. Addressing the Minister directly, I add that the 30-year rule has given some of us considerable embarrassment. Some of the things I said in the past turned out to be absolute balderdash but I can live with that because it is what I thought at the time. It turns out that I was wrong.
The path that the noble Lord, Lord Owen, wants to take us down is, as a special case, precisely the correct one. I do not think it will destroy our Civil Service; it will not cause honest men and women suddenly to start telling lies in order to ingratiate themselves with the Minister. I am absolutely certain this is a special case which your Lordships should espouse.
Lord Deben
My Lords, I would like to share with your Lordships’ House, for the first time, my experience of trying to deal with the complicated matter of BSE as it makes clear this distinction. I committed myself to total openness; I knew nothing that the public did not know. It was the only way in which one could be sure of obtaining people’s trust. Nothing was hidden. We did not have risk registers in the sense that we do today but it would be quite wrong to say that we had not considered every possible risk.
I put it to your Lordships that there is a difference between what you know and the extreme cases which you ask about in order to make sure that what you know covers everything that you could know. If in the middle of that terrible crisis newspapers more interested in their numbers of sales had accused the Minister of uncertainty because he had asked about risk—and I do not need to go into the kinds of risk you had to ask about—it would have been impossible to make what were already difficult enough decisions. It turns out now, 20 years later, that the decisions were right but at the time they could only be what you knew, and what I knew I shared.
Consider also what it meant for my civil servants. Do your Lordships really believe that your civil servants would be able to be as frank and direct and complete if they found themselves and their relationships being used as part of a battle? There were some terrible battles at that time between people who had all sorts of other interests. Compare this to another case, which out of kindness I will not be too detailed about. For many years in the ministry of agriculture a particular view had been upheld and we had been told that it was true. When I sought further information I discovered it was not. It was at that point that I tried to establish a very clear distinction between what you know and what you have to ask about which you do not know.
The risk register has come into our governmental structure largely from private business. I sit on the boards of a number of companies and chair several; in all those cases we have a risk register. That risk register is only useful if it is kept entirely to the company itself, because you want to ask questions of a very extreme kind. I ask the noble Lord, Lord Owen, whether he can imagine a Foreign Secretary who had to reveal his risk register asking what would happen if this or that Government did this or that, or what would happen if some Middle Eastern state refused to allow our ships into the Strait of Hormuz at this moment. Would any Foreign Secretary be able to be Foreign Secretary?
Baroness Thornton
Does the noble Lord not think that the Information Commissioner and the tribunal have taken those points into account?
Lord Deben
I would not dream of suggesting that I know what the tribunal and the commissioner have taken into account. All I am saying is that if they have taken it into account and come to this decision, I think it is wrong, and if they have not taken it into account they ought to have done. That is why I come to the point that the noble Baroness raised when she said that it is all very good because the National Health Service has risk registers and publishes them. They are not risk registers, not in the sense that a business has risk registers. They are not risk registers in the sense that the Foreign Office has risk registers. They are such risks as the National Health Service believes will stand being in the public domain. The risk registers that a Government have are a wholly different kind of thing and need to be. I believe that we must protect them.
Lord Harris of Haringey
Before he finishes his remarks, will the noble Lord explain why the National Security Council publishes its own national risk register of security threats to the UK?
Lord Deben
For exactly the same reason that the National Health Service does.
Baroness Williams of Crosby
My Lords, what the noble Lord, Lord Deben, said is well worth listening to, but I shall add one other important factor before I come on to the amendment moved by the noble Lord, Lord Owen. As the noble and learned Lord, Lord Mackay of Clashfern, pointed out—and it is a crucial factor in our discussion—the risk register that was drawn up in autumn 2010 took no account of the changes made by your Lordships’ House. It could not because it could not foresee the future. That means that the risk register of 2010, the transitional register to which the chairman of the tribunal referred, is almost useless in enriching and informing the debate we are having in this House. Therefore, far from being helpful, it will in many ways be extremely misleading because it will confirm the incorrect beliefs of many members of the public who have not understood what has happened in this House. You only have to read the newspapers to see how widespread is the total ignorance of what we have done here, whether we talk about competition, training or constitutional change. That is the crucially troubling aspect of what we are discussing. It leads the general public and Members of this House and elsewhere back to an out-of-date and anachronistic finding.
I have one more thing to say about the amendment moved by the noble Lord, Lord Owen. The House needs to recognise that he has made a very substantial change of great importance in it: he has accepted that there will be a Third Reading in this House. He has accepted that the outcome of the Third Reading will be binding upon everybody in this House and beyond because it will be part of the system of law. What he has asked for is more time and opportunity to have the finding of the tribunal discussed in this House. In that, he is absolutely correct. I do not believe that we have gone anything like sufficiently far in trying to accommodate that reasonable request because there is time left in this Session of Parliament. It ought to be possible to transfer a day or two from the Scotland Bill to the health Bill so that it could be properly discussed; or there is something that the noble Lord indicated he would accept, which is a very narrow redaction of anything in the risk register that would be seen as desperately dangerous to public trust in the NHS.
My view is a rather curious one. It is that the noble and learned Lord, Lord Mackay, is right in pointing to the real dangers of treating the risk register as a source of knowledge and truth, but I also believe that the Government should have gone further in trying to find time somewhere, if necessary—dare I say it?—even taking a day off the sacred Easter Recess to enable this House to discuss in detail what is coming out of the chairman of the tribunal’s decision on the risk register so that we can get it straight.
Lord Wilson of Dinton
I add my support to what the noble Lord, Lord Fowler, and others who have spoken against the Motion said. I am deeply concerned about the implications of the Motion for the Civil Service.
Every day in government, Ministers consider policy issues and depend on the Civil Service for advice. Anyone who has been a Minister understands the private space in which civil servants give their best advice. There is a major public interest in advice being given without fear of it becoming part of the political arena, in the press or in Parliament. If risk registers are published, the very act of publishing them will draw them into the public arena and politicise the advice. This is not about lying, or about being dishonest in any way, but the duty of civil servants is to the Ministers they serve and to the Government of the day. They have a job to do and they must do it to the best of their ability, but they must do it in a way that does not cause difficulty for the Government.
It is in all our interests that risk registers are honest and look at the worst case, and put it in terms that leave the Minister in no doubt about the risks that are being taken. If those documents are going to appear in the public arena, they are bound to be sanitised in some form. Advice will either be put in a way that does not fully expose the dangers, or worse still it will not be given. There is a real risk that important advice will be driven off the paper into oral remarks, which are not what the Minister needs. The Minister needs a document that he or she can read after the meeting, and ponder and mull in the stillness of their own room. If we push these documents into the political debate, we will lose a crucial part of the role of the Civil Service. If we do it a lot, over time there is a real risk that Ministers will want around them civil servants who are themselves political, because they have become part of the political debate.
This is a very dangerous pressure to put on the constitution. I understand the worries about the Bill, but this is not the right way to attack it. It would be a dreadful mistake if this House were, in the heat of the moment, to set a precedent that affected the Civil Service in its ability to serve the Government of the day.
Across all parties there is an understanding about the need to observe the conventions under which the Civil Service operates. I appeal to the House not to add its weight to this issue of the risk register in a way that might do damage, because the damage would be not only to this Bill and this department. Whitehall is watching; it is really concerned about this issue, and if this goes the wrong way it will have implications and reverberations across government in ways that I am sure this House would not want. I urge the House not to support the Motion.
Baroness McIntosh of Hudnall
Would the noble Lord share with the House his view as to what weight should be attached to the Information Commissioner’s judgment on this particular risk register? Is it his view, in the light of his remarks, that the views of the Information Commissioner should be ignored, overridden, or appealed on to the point at which they are no longer relevant? That appears to be the course of action the Government are now trying to take.
Lord Wilson of Dinton
It is not for me to advise the Government on what to do, but I hope they will appeal, because the issue involved is of huge importance. I read the Information Commissioner’s first judgment and I do not find it satisfactory. It is written in a way that suggests that it does not understand the issues in government. I think the issue at stake is of sufficient importance for the Government to fight its corner, and for this House not to add its weight to it.
Baroness Murphy
My Lords, I declare that I am a member of the British Medical Association and a fellow of the Royal College of Psychiatrists.
The risk register is a complete red herring and we all know that this is an attempt to delay the implementation of the policies in the Bill. The Bill has received extraordinarily careful scrutiny. In fact, it has received better scrutiny and a warmer response from government Ministers in addressing amendments proposed by all sides of the House than any Bill with which I have been associated in the past eight years. At the moment, I can think of nothing worse for the National Health Service than to have these policies delayed yet again by further uncertainty and greater procrastination.
The risk register saga was so obviously a political ruse from the beginning that I did not even bother to speak on it when it was first introduced. It was so obviously a red herring, produced for the benefit of the House to debate a slowing down of the Bill, that it was not worth addressing.
Baroness McIntosh of Hudnall
Would the noble Baroness explain to the House whether it is her view that the Information Commissioner has deliberately delayed the progress of the Bill? That seems to be the implication of her remarks.
Baroness Murphy
That is not the implication of my remarks at all. The Information Commissioner has not released his full judgment and will not release his reasons for some time, so we cannot debate that.
This comes back to what my noble friends Lord Birt and Lord Wilson and the noble Lord, Lord Fowler, said about what these risk registers contain. I know very well because I have written risk registers for the National Health Service. I have sat down with my chief executive, and with my chairman when I was a chief executive, and we have written these things for public consumption. The Cabinet Office has a very nice risk register, but it is for public consumption; it is not to do with the private discussions between senior civil servants or advisers. I have worked as an adviser at the Department of Health, and this is not the kind of thing that comes up in conversations between Ministers where you want to be really frank.
We now have an out of date, almost two years’ old risk register that will not be relevant to the passage of the Bill. We have assessed the detailed risks of the Bill better in this House than in any other forum I can imagine. Those who have sat through the progress of the Bill, line by line and word by word, know very well that we have improved it. I am sure there are areas that many of us would still like addressed, but for all kinds of reasons we are not able to do so. I beg the House not to delay the Bill. If we delay it further we will have no guarantee that we will be able to get it through before Prorogation. I see this simply as a ruse not to implement these polices. We would gravely let down the National Health Service by not implementing them, and I urge noble Lords not to support the Motion of the noble Lord, Lord Owen.
Lord Falconer of Thoroton
I support the Motion of the noble Lord, Lord Owen. I understand that he is saying, “Let us look at the reasons for saying that the risk register should be made public”. He understands that it must be done before Prorogation, so I am not entirely clear why the noble Baroness, Lady Murphy, is saying that this will cause delay. I hear what the noble Lord, Lord Wilson, says—you do need to strike a balance between appropriate confidentiality in relation to what the Government do and the need for openness.
The Freedom of Information Act was passed so that it would not be government Ministers or civil servants who determined what was kept confidential but an independent tribunal. We have reached the position on this issue at which Professor Angel, who is regarded as probably the best chair of an information tribunal that there is, has struck the balance. Take it from me that Professor Angel very well understands the need for proper confidentiality in relation to government. He and his tribunal are not remotely people who would make everything public. They well understand that lots of government matters have to be kept under wraps for the purpose of good government. If a tribunal chaired by Professor Angel said that we should see this, and he reached that conclusion on the basis not of politics but of good government, my instincts are that we should listen more to what he said than noble Lords around this House who have an interest in trying to rush the Bill through. I am struck by the modesty of the amendment by my friend, the noble Lord, Lord Owen. It says that we should see what Professor Angel said before we reach a conclusion. I strongly urge the House to take that course.
Lord Martin of Springburn
My Lords, I have sat for many hours with my noble friend Lord Owen on this Bill. We both have an appreciation of the health service that came from our parents. My noble friend’s father was a medical practitioner while my mother and grandmother spoke of how things were before the National Health Service came into being. I have no desire to do any disservice to the health service. In fact, in the amendments put before this House, I voted contrary to the wishes of the Government.
Yet, on this matter, there is a point that information passed between civil servants and their Ministers should be kept confidential. The argument has been put about the Information Commissioner. Is anyone suggesting that the Information Commissioner is doing something wrong? The answer is no. The Information Commissioner works from a piece of legislation that both our Houses gave him. That basically says that if information is in data—in written form—then it should be made public. What will now happen is that when Ministers go to get advice, they will not get written advice. Ministers and other high officers of state are entitled to advice from their civil servants or officials. They get confidential advice. Freedom of information does not cover all information, only written information. No one can force a Minister or any other officeholder to hand over information given orally. That is exactly what will happen now: information will be given orally. That is not helpful to the quality that we look for. When a civil servant or officer puts something down in a document, they give a lot of thought to it. As the noble Baroness, Lady Murphy, said, there are several people behind that document when it is published. It is there for the Minister or officer to look at. On this matter, I cannot support my noble friend Lord Owen. I support the Government.
There was a previous debate on this matter. It was stated that the previous Labour Government should give the risk register for, I think, the third runway at Heathrow. Justine Greening was the MP who pushed for that. First, the Government did not hand over that information in a matter of minutes. It took a long time for them to hand it over. Secondly, this was leading up to a general election where parliamentary incumbents around Heathrow and parliamentary candidates in the Labour Party were deeply worried about that risk register.
I have been very supportive of my friends in the Labour Party, and they know that. In fact, I have a better voting record with the Labour Party than some of its card-carrying members. However, they should ask themselves when the road to Damascus came about. It did not come about two years ago. Every time I granted an Urgent Question to a Minister or to the House, there was a Minister complaining that they did not want to give information to the House but would rather give it to a television studio.
I have had a great deal of criticism—costly criticism—about going to an appeal, so I know about appeals.
Baroness Royall of Blaisdon
My Lords, it is not just a question of the road to Damascus. When the Information Commissioner ruled about the Heathrow third runway we then made the report available. There is also one more difference I would point out to the noble Lord. At that time there was no Bill going before Parliament to which the risk register was pertinent. They are the two key differences that I wish to bring to the House’s attention.
Lord Martin of Springburn
The noble Baroness makes a valid point but I am giving many examples of where certain individuals, such as some of her Cabinet colleagues, were not too keen about the Information Commissioner’s instructions to this House and the other House. She will know that. In fact, some of her fellow Cabinet colleagues came to me and said, “Good luck, we want you to appeal.”. I do not know whether it was discussed in Cabinet but I know that the sparks started flying. What do they say about failure? Failure is an orphan.
I will not go down that road too far except to say that it certainly has been a road to Damascus. There have been a lot of decisions by the Information Commissioner that the noble Baroness and her Cabinet colleagues did not want. I am prepared to put them down item by item and to tell her about the Cabinet Ministers, some at very high level, who were prepared to go against an Information Commissioner’s decision.
Lord Martin of Springburn
Not on a Bill. The noble Lord, Lord Owen, says it is not about the Bill; he says we should wait for the Bill until we get an appeal decision. If people are opposing an Information Commissioner’s decision, it still has consequences for legislation whether it applies to a Bill or not. Let us not kid ourselves. It may not apply to a Bill but on other pieces of business, the Minister concerned is going to say, “Give me that information orally—I do not want anything at all in writing”. Information Commissioners have gone on record to say that if information is in data they want to release it.
Lord Walton of Detchant
My Lords, I have the greatest respect for my noble friend Lord Owen—a noted Health Secretary and Foreign Secretary, and someone who made a major contribution towards peace in the Balkans. He became, obviously, one of the glitterati of British politics. Many of your Lordships may not be aware that he began training as a registrar in neurology at St Thomas’s Hospital and I often contemplate what might have happened to his future career if he had stuck with neurology and not turned to politics.
While I talk of neurology, may I just say to the noble Lord, Lord Deben, that I was the neurologist on the Southwood working party on BSE which gave advice to the Government on that tragic, difficult problem in 1988? I am very glad that we got that advice right—we learnt a lot about the assessment of risk at that time.
To return to this Bill and the amendment moved by the noble Lord, Lord Owen, which, with some difficulty, I feel that I cannot support, I am a fervent supporter of the National Health Service. I spent much of my professional life working in it and in academic medicine, and when this Bill was introduced into your Lordships’ House I joined with the voices of the BMA, the royal colleges, the nursing organisations and many others in saying that in my opinion the Bill was potentially damaging to the NHS and that it was unacceptable. However, we have moved on. I have been involved with many of your Lordships in the lengthy, at times almost interminable, debates which have improved this Bill beyond recognition. It is not perfect, and there are still issues which perhaps need to be handled by regulation, but it is an infinitely better Bill than the one which came originally into this House. For that reason, any further delay would be unacceptable.
Having said that, I was greatly touched by the wise words of the noble and learned Lord, Lord Mackay of Clashfern, and by the very wise words of the noble Baroness, Lady Williams, who has been a tower of strength throughout all the debates in this House. I genuinely believe that if the medical organisations which are continuing to express their complete opposition to the Bill had fully appreciated the enormous number of amendments that have been carried and accepted by the Government in this House, they would not be continuing to take their stance as fiercely as they are. The Bill has been transformed; for that reason, if your Lordships will forgive the cliché, enough is enough. We are where we are. It is time to give this Bill a Third Reading.
Lord Clement-Jones
My Lords, it is a privilege to follow the noble Lord, Lord Walton, who, as we all know, carries such respect on health matters in this House. I do not doubt the sincerity of the noble Lord, Lord Owen, in his fundamental opposition to the whole Bill. Indeed, he expressed it very clearly in his Observer article yesterday. He put the arguments very fairly on his Motion, but I have absolutely no hesitation in disagreeing with it today—and I say to him, in his capacity as a doctor, that I feel no physical or mental discomfort with a whipped vote on the matter, for the very key reason that my noble friend Lady Williams mentioned.
The risk register whose publication is being requested was written as long ago as November 2010. It will certainly not relate to the Bill being considered today, as it was drawn up many months before the pause in the Bill’s proceedings. Many changes to the Bill were made as a result of the Future Forum process, headed up by Professor Steve Field. The Bill was then changed significantly in Committee and on Report in this House, as the recent House of Commons research paper makes absolutely clear. The risks identified in the register are therefore those of the old Bill, long since superseded, or even of the White Paper which preceded it. It will have been based on worst-case scenarios—
Baroness Tonge
In all sincerity, if the risk register is so totally out of date and bears no relevance at all to the new amended Bill, would its publication not be a wonderful opportunity for this side of the House to show how much it has improved the Bill and dispatched all risks?
Lord Clement-Jones
My Lords, my next sentence was about to deal with precisely the point made by my noble friend. It can therefore be argued that publication now by the Government could, and would, wholly distort rational discussion about the Bill in its present form. The job of scrutiny carried out by your Lordships’ House is to look at every scenario and from the experience of its Members, which is considerable, suggest amendments which mitigate the problems identified. That is precisely what this House has carried out and, I would say, to good effect. However, the Motion is not suggesting that we delay the current Bill against the remote possibility that there is some risk in it which the Department of Health has identified and this House has not. It is saying that we should delay it pending the First-tier Tribunal’s reason for its decision being published.
What will passing this amendment to the Motion therefore achieve? When we know the details of the decision, the Government will still be fully entitled to appeal. They have already won with the strategic risk register, and may well take the view that they will be able to overturn Professor Angel’s decision on the transitional register. Do we want to deny them the right to appeal in the face of the very fact that with one limited exception, which the noble Baroness, Lady Royall, has mentioned, the Labour Government did not publish these risk registers when they were in government? Where would that leave us, even if the detailed reasons become available?
I was slightly taken aback by the use of the expression “rush” from the noble and learned Lord, Lord Falconer of Thoroton. I submit that a debate over revealing an up-to-date risk register might just have some merits, but not in these circumstances, where its contents are of historical interest only.
Lord Grocott
I am certain that the House wants to reach a conclusion, but that is a bad way to start.
Lord Campbell of Alloway
Thank you very much. I will make one short point. All your Lordships, wherever you may sit in this House, know perfectly well that if this Bill is delayed, urgent requisite reform cannot be used or done, to the detriment of the public. For that reason alone, I oppose this amendment.
Lord Grocott
My Lords, I am sure that we are about to reach a conclusion. I want simply to make an obvious point which may have been missed. It is that we have had an interesting debate, going on now for the best part of an hour, most of which has not been about the amendment on the Order Paper. I know that this can be disturbing at times, but I would like to remind the House of what it is going to make a decision about—or, perhaps, what it is not making a decision about. It is not making a decision about the freedom of information legislation, on much of which I might find myself in complete agreement with the noble Lords, Lord Butler and Lord Wilson. It has many problems and difficulties associated with it, not least for Ministers. Ministers in this Government are finding that, just as much as Ministers in the previous Government did. However, it is not about the merits of the Freedom of Information Act—that is for another time. It is not about the merits of risk registers, good, bad or indifferent, and there are all those categories of risk registers. It is not about the merits of the Bill, where we are considering whether it should have a Third Reading now. It is about the momentous decision that the House must reach shortly: whether the Third Reading of this Bill should be delayed for, in my estimate, three weeks. That is the decision we are being asked to make.
With respect to previous speakers, that makes one or two of their contributions problematic, if not redundant: those who have suggested that somehow it will be very serious, if not cataclysmic, for the health service in this country if the Bill is further delayed. I have not been involved with the debates on the Bill, but it already seems to have been going on for most of my life, as far as I can see; certainly for 12 months. Are we really being asked to accept the proposition that a further three weeks—that is my estimate, and I will come to my question to the noble Earl, Lord Howe, in a moment—will somehow traumatise the health service? That is an unsustainable proposition. I would not have voted for the amendment had it not referred to the specific point at the end, which is that the House must be able to reach a decision on Third Reading before Prorogation. That is what we are being asked to do. As we all know, the Queen’s Speech is in May—I cannot remember the date—so Prorogation is not too far away.
I know that the House will not vote on the basis of the point that I am making. The proposition is simple and straightforward, and I cannot believe that it is of the cataclysmic significance that one or two speakers have suggested. I have no doubt that we have reached the stage, which we have all been around long enough to recognise with this kind of legislation, where government supporters just want to get it over with, for which I do not blame them, and the Opposition want to ensure, even at this eleventh minute of the eleventh hour, that they have a few more opportunities to point that this really is a bad Bill—a view held not only by the Opposition but by the whole of the medical profession and, as far as we know, most of the public.
Lord Phillips of Sudbury
My Lords, I would like to add to the question well raised by the previous speaker and ask the Minister to go one step further. I reread the wording of the amendment of the noble Lord, Lord Owen, and I am not entirely clear what the effect would be if, when the Tribunal’s detailed reasons were made available, the Government then decided to appeal that decision. Would that put an end to the noble Lord’s attempt to have the risk register available before we finalise the Bill or would it mean, as I think from the wording that it would, that the matter was at an end and we would proceed to Third Reading?
Lord Armstrong of Ilminster
My Lords, I support the noble Lord, Lord Fowler, and my noble friend Lord Wilson of Dinton in advising the House not to support the Amendment to the Motion. I do not want to go into any more detail on the risk registers. They need to be comprehensive and candid; if there is a risk of publishing them, the compilers will be less likely to make them as comprehensive and candid as they need to be in order to be of value. When the Information Commissioner suggests that, even if this is published, people will be equally comprehensive and candid in future, I am afraid that I think he is guilty of wishful thinking.
There is a process with this risk register. I understand that we have not yet seen the reasons for the decision reached by the Tribunal. When that is known, the Government have the right to appeal. I hope that they exercise it because the considerations against publication, as they have been stated more than once today, are very cogent. That process is likely to take a great deal longer than the three weeks that the Amendment of the noble Lord, Lord Owen, gives the Bill. The only sensible course now is to disentangle the business of the risk register and the business of passing the Bill, to let the Bill go forward and not to support the Amendment to the Motion.
Baroness Thornton
My Lords, little needs to be added to the eloquent and succinct arguments deployed by the noble Lord, Lord Owen, and built on by my noble friends Lady Jay, Lord Peston and Lord Grocott, and my noble and learned friend Lord Falconer. These arguments are in the best liberal tradition and should be supported by anyone who genuinely believes in openness and transparency.
Many people inside and outside the House have expressed concerns about the risk posed by this Bill, especially the implementation of the biggest-ever reorganisation of the National Health Service. It was those fears that led to the initial request by my right honourable friend John Healey 18 months ago. I do not think that even the noble Baroness, Lady Murphy, could imagine that it was a plot of some kind to delay the Bill at this point. I can assure the noble Baroness that that it is not the case. What is being considered here is a risk register maintained for the transition programme; for the work necessary to implement the changes in the Bill. That is going to be done together with delivering the Nicholson challenge, so there are huge challenges to our National Health Service. It is not the same as a departmental risk register, which might be closer to policy matters and advice, and the concerns expressed by many noble Lords, particularly those who have been Ministers and Permanent Secretaries.
My noble friend Lord Grocott is right. What is being asked for here are three weeks to see what this says. Surely the balance of public interest lies in disclosure, to enable consideration of this Bill to be as effective as possible. In short, we needed it in November to do our job adequately and we still need it. Noble Lords have said that it will be now out of date, but that is a question I asked many months ago and I was assured that it would not be the out-of-date register that would be available, but the most current. I say to those representatives of Permanent Secretaries in your Lordships’ House that the last time they engaged with this matter—never with the Bill, but with this matter—I quoted “Yes Minister” at them. I shall be less elevated this time. I shall use the Mandy Rice-Davies defence and say, “Well, they would say that, wouldn’t they?”.
I agree that it is time to move on. The issue is simple enough; we need to understand the risks in order properly to consider the Bill. We did need them. We have time to take this matter in hand. The answers are very clear and we should support the noble Lord, Lord Owen.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, as ever I am grateful to the noble Lord, Lord Owen, for speaking in such clear terms to the amendment he has tabled. I am equally grateful to other noble Lords who have contributed to this debate, on both sides of the argument. At the heart of this, I suggest that the noble Lord, Lord Owen, is putting forward two propositions. The first is that the Government have concealed the nature of the risks associated with the Health and Social Care Bill and therefore the House has a right to be made aware of what the department’s transition risk register contains. The second proposition is that the Government’s refusal to publish the risk register is inherently improper under the terms of the Freedom of Information Act. In other words, the alleged sin of concealment on the part of Ministers is compounded by an unreasonable obduracy in not complying with the decision of the Information Commissioner and now the First-tier Tribunal. It will not surprise the House to hear that I fundamentally reject both propositions. First, the suggestion that the Government have consciously set about concealing the risks associated with the NHS—
Lord Owen
Before the noble Earl continues on that path, I have never used the word “concealment” in any of the many speeches I have made on this Bill. I also do not believe that it is improper for the Government to appeal on both those points. I do not mind my argument being destroyed, but if there has been any lack of clarity, I have said neither of those propositions.
Earl Howe
I accept the first point. In his article yesterday in the Observer, he called it “constitutional outrage”— or words to that effect—which was the point of my second proposition. Other noble Lords have made the accusation that the Government have consciously set about concealing the risks associated with the NHS reform programme, but that allegation does not stand up to a moment’s scrutiny.
The Bill was published some 14 months ago. During that time it has been subjected to a level of analysis, both inside and outside Parliament, that is without recent precedent. I am not just referring to the Bill’s impact assessment, which runs to 200 pages and dissects the risks, costs and benefits of the Bill clearly and meticulously. Nor am I referring only to the two successive NHS operating frameworks of 2010 and 2011, which lay out for all to see the risks of putting the NHS reform programme into practice, and how the service can best mitigate those risks. Nor do I wish to highlight only the extensive oral and written evidence that we provided to two House of Commons Select Committees, whose reports took apart a very wide range of risks to which the reforms give rise and made recommendations on the back of that. As much as any of these documents, it is the debates that have taken place in Parliament that have aired the risks associated with the Bill. When added together across both Houses, those debates have been of unparalleled duration and scope.
Noble Lords may recall the statement that I made on 28 November 2011, in which I set out a list of nine headings, summarising the areas of risk contained in the transition risk register. Many of those areas of risk have been the subject of amendments and debates during the Bill’s passage through the House. For example, one of the risk areas was,
“how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively”.
Noble Lords will need no reminding of the amendments that we agreed across the House on the chain of accountability in the NHS or the lengthy debates that preceded them. A further risk area was,
“how to ensure that future commissioning plans are robust, and to maximise the capability of the future NHS Commissioning Board”.
We have debated and passed amendments on health inequalities, conflicts of interest, research, education and training and a whole lot more, all of which will directly contribute to those worthwhile objectives. Another area was how,
“to ensure that the new system delivers future efficiencies”.— [Official Report, 28/11/11; col. 16.]
Our debates on integration, the tariff and many other topics have focused on that theme, and there are more such examples. Therefore, I cannot accept for one minute that without sight of the transition risk register the House has somehow been denied a deep insight into what the Bill means for the NHS. It is an absurd proposition.
Why, then, is there such an issue over the release of the risk register? We heard the answer to that from the noble Lord, Lord Wilson of Dinton. We are dealing here with something for which I make no apology—namely, a point of principle. It is very firmly the view of the Government—here I refer to departments right across Whitehall—that the release of departmental risk registers would seriously undermine the work of civil servants if it became an accepted practice. Civil servants need to be able to formulate policy advice for Ministers fully, frankly and without fear that what they say may be exposed to the public gaze. The moment that officials feel inhibited in setting out the possible risks attached to a course of action in worst-case terms, the process of policy formulation becomes weaker and good government inevitably suffers. It is our belief, as it has been the belief of successive Governments, that to agree to the release of a risk register such as the one associated with the Bill would be to cross a Rubicon. It would remove the safe space that Ministers and civil servants need to do their job thoroughly and properly.
The potential for making that judgment was explicitly recognised and allowed for in the Freedom of Information Act. Indeed, our decision to invoke the Act in order not to release the department’s strategic risk register was upheld by the First-tier Tribunal. We await the tribunal’s reasons for arriving at this conclusion, and for arriving at the opposite conclusion with regard to the transition risk register. When those reasons are before us, the Government will need to take a decision on whether there may be grounds for a further appeal. Until then, no one can tell what the legal basis of the judgment is.
Lord Grocott
The point was not about any length of time that the process of appeal might take. This Motion specifically rules out any delay on that basis. It states that Third Reading should take place whichever is the sooner—when the decision is made or whenever is the final date for consideration of Third Reading before the end of the Session. I put it again to the noble Earl: what is his estimate of the last date that we could consider the Third Reading in time for the Bill to become law in this Session?
Earl Howe
My Lords, I take that to be the meaning of the Motion; in fact, it presents the House will an either/or decision, which if passed, would leave us in an uncertain situation. However, I take it that the Motion of the noble Lord, Lord Owen, means that, failing the first alternative, the second applies.
I have discussed the parliamentary timetable at length with my noble friends, as might be supposed. I am advised that in reality there is little time left in this Session, but there is a great deal of business left to complete: the Legal Aid, Sentencing and Punishment of Offenders Bill is on Report; the Scotland Bill is still in Committee; and we await our amendments to other Bills to come back from the other place, whose own schedule is complicated by the Budget, Easter and the Finance Bill. The clear advice that I have received from the business managers is that to delay Third Reading to await the tribunal’s reasons and a government response would put into serious jeopardy all the excellent work that this House has done to make this a better Bill.
I put it firmly to the House that we need to get on with the Bill. Today is the 25th full day on which we have been discussing it, and during that time it has been greatly improved. There is no major issue in it to which the House has not done justice. Delaying Third Reading would, in my submission, be wrong and wholly unwarranted. We need to get on with it, and the NHS needs certainty—the certainty of the Bill being on the statute book. I therefore urge your Lordships in the strongest terms to reject the Motion of the noble Lord, Lord Owen, and allow Third Reading to proceed this afternoon.
Lord Owen
My Lords, we have heard a lot of speeches and I do not intend to take long, but I reiterate—if any noble Lord has come in late to this debate—that they should again read the amendment. It makes it clear that what we are trying to do is find enough time—a matter of a few weeks—to hear the opinion of the tribunal that has found against the Government on the disclosure of the risk register. That is a provision within the Freedom of Information Act and follows the earlier decision against the Government arguing for the disclosure of the transitional risk register by the commissioner.
It is pretty unusual for the Government to find two such rulings against them, and it seems perfectly legitimate, before making a final decision—which I readily concede has to be made before Prorogation—to give the courtesy, let alone anything else, of hearing the judgment. It is almost as if we are afraid of the judgment.
In fairness to Professor Angel, we heard from the former Lord Chancellor about his credentials. People do not sit on the tribunal for freedom of information just on one case. They have made many different judgments; they know the issues. With respect to the former Permanent Cabinet Secretaries who have spoken, those who sit on the tribunal know the issues—I do not say as well as former Cabinet Secretaries, but they were looking at it from one side of the equation, the well-being of the Civil Service and the service and information they gave to Ministers. The Freedom of Information Act looks at it from a wider perspective. It looks at it for the good governance of the country as a whole. It urges people to look at why we have open government and greater transparency: because people find it much easier then to accept democratic decisions. This is about a democratic process.
Lord Alderdice
My Lords, I have listened carefully to what the noble Lord, Lord Owen, has said. My understanding from his earlier intervention was that he felt it important for your Lordships’ House to understand what was in the transitional risk register so that that would inform its debate on Third Reading. In the light of what my noble friend Lord Howe said—that it is almost certain that that material would not come into the public domain over the next few weeks, as I think that the noble Lord accepts—all that would come into the public domain over the next few weeks would be the reasons why the judgment was made, not the content of the transitional risk register itself. Therefore, I just want to be clear that the noble Lord is saying that all that your Lordships’ House could do would be to debate the reasons of the tribunal, not the content of the risk register. I am not clear how the reasons of the tribunal would inform our Third Reading debate.
Lord Owen
It is exactly the wording of the amendment,
“to consider the detailed reasons for the first-tier tribunal decision”,
if there is sufficient time. This is the issue of freedom of information. I have already openly admitted that Governments tend to restrict information and Oppositions want the maximum amount of information. That is the inherent tension which the Freedom of Information Act was established to try to resolve. It seems wiser to listen to those voices.
The noble Earl raised the question of constitutional issues. The Bill raises some serious constitutional issues. The Government have no mandate for the Bill. They specifically went to the electorate and said that there would be no top-down reorganisation of the National Health Service. That is considered by a lot of people outside this House to be a flagrant lie. That is one constitutional issue.
Lord Owen
I said that people outside this House consider it to be a flagrant lie. I have been around Parliament long enough to know what I cannot say and what I can.
There is another aspect to the Bill. The Government also fought an election on the basis of a constitutional promise that there would be no increase in the powers of EU legislation unless there was a referendum. There are very serious questions about the Bill as to the impact on EU legislation and the extent to which we will see the Commission making decisions on the National Health Service that it has not hitherto thought it either wise or, possibly, empowered to make. That is the second big constitutional question.
Lord Owen
No, the noble Lord has had his say. All I am saying now to the House is that this is a decision on which there are strong opinions in many ways. A lot of Members will vote just on the basis that under no circumstances do they want risk registers published.
I say only this—that when companies are having an IPO, we legislate for them to produce the fullest, most detailed risk register of this. We also empower them in their annual, and in the case of America in their quarterly, statements to reveal risk registers at a penalty of going to court if they lie about it. There were times in this debate when I almost thought we were being asked to give a complete carte blanche to the Civil Service to say what it liked irrespective. I hope that is not the position of the Cabinet Secretaries and the Permanent Secretaries. It is possible that either a commissioner or a tribunal might look at a risk register and think that there were flagrant factual errors.
I think it is very dangerous to use “principle” on this question, if I may say so to the noble Earl. The principle surely cannot be that under the Freedom of Information Act some risk registers might never need to be published in the public good. That is a judgment on which, as he says, one can then go to appeal. However, there comes a point when one would have to judge against the background of repeated demands for disclosure. It is on this that the House must make up its mind. Can we wait a couple of weeks—three at the most—before the House prorogues to hear the words of the chairman of the appeal tribunal to whom we in the Freedom of Information Act gave the power to make that decision? The fact that it is against the Government does not mean we should give them a carte blanche, and I hope that this House will not do so. I wish therefore to test the opinion of the House.
Lord Patel of Bradford
Lord Patel of Bradford
My Lords, I speak to Amendments 1 to 6 in respect of Clause 8 of the Bill. As noble Lords will no doubt have realised, Amendment 1 is slightly different from the one that was debated on Report and I will explain why my noble friend Lord Noon and I have tabled it.
VAT recovery for charities is an important issue and one that has received considerable support. Indeed, my previous amendment to the Bill was passed. I will not repeat all the arguments made on Report but given the changed nature of the amendment I feel I should explain some of the differences.
I am very indebted to Sue Ryder Care for its support and invaluable information in preparing this amendment. It stems directly from its campaign, which started in 2011, to raise awareness about the problem of irrecoverable VAT for charities providing healthcare services. For example, the NHS is able to recover VAT on certain non-business supplies that charities cannot. This may hinder them from taking full advantage of the Government’s agenda, which will see more services outsourced from the NHS to other providers. It can be seen as a significant barrier to entry for charities which may be forced to use their charitable funds to pay the VAT.
Lord Noon
My Lords, I speak in support of Amendments 1 to 6. I add my thanks to the Minister for his support in seeking to improve this Amendment, which I believe has been done in a number of ways. I should also declare an interest in these matters as chair of the Noon Foundation, which provides financial support to charities and other not-for-profit organisations, including those caring for people in end-of-life situations, such as the Marie Curie Cancer Care charity.
As a philanthropist and a businessman, I understand very well the importance of having a level playing field. We all know the immense value that is provided by charities, social enterprises and small voluntary agencies. I believe that they form the bedrock of our society. They provide essential support and care to those who are most in need, and do so on a daily basis.
The VAT issue for me is very clear. As someone who provides funding for charitable work, I do not want to see those funds taken up paying VAT that was not charged to the NHS when it provided the service. However, we need to go beyond VAT and look at all the barriers faced by the not-for-profit sector. As a business man, I understand the significant risks taken on in any new enterprise. There must be adequate time to accumulate capital, contracts must be fair and any additional undertaking such as the transfer of staff must be fully funded. So why should we expect any less of the charitable and not-for-profit sector? Is it fair that those organisations which exist solely for the benefit of those they serve should be penalised for not being wealthy private enterprises?
Even an issue such as insurance can be difficult. Most of these organisations rely on volunteers, people who have chosen to freely give their time because they want to give something back to society. However, as more services are taken on with a wider range of activities, the risks increase and so too do the insurance premiums. These increased costs are not always taken into account in contracts and can represent an excessive and increasing burden for charities.
However, this is not only about levelling up the playing field to be fair; this is about the kind of healthcare organisations we want to see thrive. At a time when government resources are severely challenged and shrinking—we cannot hope to manage solely on charitable donations—bringing the not-for-profit sector more firmly into mainstream provision of services is one of the ways in which we can continue to provide much needed care, but this will work only if we ensure that these organisations can enter the market fairly and with fully costed and supported service contracts.
In supporting these amendments, the Government are accepting that this is a vital issue and they have made a commitment to provide a report with recommendations within a set timescale. This represents a significant move in the right direction and I commend the amendments.
Lord Newby
My Lords, I strongly support the noble Lords, Lord Patel and Lord Noon, in seeking to promote the role of the not-for-profit sector within the NHS, as indeed I do across the whole of the public sector. They have given reasons why within the NHS, particularly at this point, the not-for profit sector can play a valuable role. As the noble Lord, Lord Patel, pointed out, there are a number of serious technical problems facing the sector in successfully bidding for contracts, and he has dealt with some of them.
I remind the House that least week Royal Assent was received for the Public Services (Social Value) Bill which requires all procurers, including those in the NHS, to consider the social value of a tender as well as its financial value, in such explicit terms, for the first time. This is one of the pieces of the jigsaw which I hope will mean that the not-for-profit sector finds it easier to successfully bid for business. The Bill lays a requirement on the public sector, but the problem is whether the public sector will implement the Bill and take the provision seriously. It would be relatively easy for it not to.
Therefore, I and other noble Lords, including the noble Baroness, Lady Thornton, who have been supportive of this principle and the Bill, seek to ensure that the Government put in place specific measures to ensure that procurers take account of the Bill rather than it simply lying idle on the statute book. When we debated this issue at an earlier stage in your Lordships’ House, the Minister suggested that it might be possible to refer to this in the draft commission of procurement regulations, and I hope that he will be able to confirm today that that is the Government’s intention.
Lord Warner
My Lords, I commend the Government on making a move in the right direction with these amendments. At earlier stages in the Bill, I tried to raise the whole issue of barriers to entry for new providers of services. This amendment helps in some respects but the noble Lord, Lord Newby, made an extremely important point. How will we know whether the culture has changed not just in relation to not-for-profits and social enterprises but for new providers, sometimes from inside the NHS? There is a deep conservatism—with a small “c”—about how the NHS goes about allowing new players to come into the game. We need the Government to give assurances that they will keep a close eye on this. As I put forward in a previous amendment, they must get Monitor to keep a close eye on the extent to which anti-competitive behaviour by the existing NHS stops new providers from whatever source—not-for-profit, social enterprise, charities, the private sector and from within the NHS—being able, when they offer a better solution to patients’ problems, to make their pitch for an alternative way of doing business.
Baroness Finlay of Llandaff
My Lords, I very much welcome the fact that these amendments have the Minister’s name on them. He has already made some concessions in relation to indemnity for these providers where they provide services for and on behalf of the NHS for patients. It seems completely right that some of the difficulties that they have faced in being able to provide flexible patient and family-focused services should be considered and looked at separately. As has already been said, in end-of-life care the charitable sector has completely revolutionised what is available to patients. I know that Marie Curie has done that. They even admitted a dog so that a patient would come in, and allowed that dog to be formally adopted, which enabled the patient to die peacefully because the dog was the only person that the man really loved in life. That flexibility makes all the difference. You would not find that provision or ability to meet an individual patient’s needs in many other parts of the sector.
This group of amendments is really important and to be welcomed. This morning, I was with Help the Hospices, which expressed concern on behalf of some very small organisations as to how they would cope in the new world in being able to continue providing the services that they want to. This group of amendments will provide them with a great deal of assurance.
Earl Howe
My Lords, I am pleased to conclude what has been a very good and constructive debate. I am extremely grateful to the noble Lord, Lord Patel of Bradford, for raising these important issues, both now and in Committee. As he stated, since his original Amendment 46 was introduced in Committee, we have worked together on this alternative amendment. While this has to some extent been a joint venture, all credit for the inspiration behind it must go to the noble Lord—along with the noble Lord, Lord Noon, whose strong commitment to the charitable sector is well known.
I can add little more to what the noble Lord has said, but it might be helpful to clarify a small number of points. First, I reassure the House that the Government are committed to a fair playing field for all providers of NHS services. We are particularly keen for voluntary sector organisations and social enterprises of all types and sizes to be involved. These providers are often among the most innovative and can offer highly personalised and bespoke services that meet the needs of local people. We understand that it is not just charities but the full range of voluntary sector providers—mutuals, co-operatives and social enterprises—that noble Lords are keen to see delivering NHS services. The new amendment enables a fair, transparent and impartial consideration of the issues, addressing all providers and possible means of responding to their concerns. I can confirm that the full intention is to look at how existing barriers can be removed, not to create new obstacles.
Secondly, as noble Lords are aware, a variety of barriers affect different providers. This includes not only payment of taxation but also access to and the cost of capital, the difficulty of securing appropriate insurance and indemnity, and the difficulty of bidding due to the scale or scope of contracts. The amendment therefore relates to a review of the full range of issues that affect the ability of providers or potential providers to deliver services for the NHS. I am sure noble Lords will agree that the potential is truly enormous.
We are clear that this is an important issue, which is why we want the report to be statutory and therefore accountable to Parliament and produced within 12 months of Royal Assent. Equally, it is crucial that the duty for the Secretary of State to keep these matters under review is in the Bill.
I can also assure noble Lords that the preparation of the report will involve full engagement with providers from all sectors, commissioners, and other stakeholders, such as Members of this House, to ensure that the full range of issues are considered and each of the concerns addressed. In particular, it will ensure that concerns around treatment for VAT of supplies of healthcare services or associated goods to the NHS by charities, including hospices, are considered. In response to the specific question of the noble Lord, I can confirm we would not see this review as in any way being slanted towards giving private sector firms a ‘leg up’.
This review will look at the barriers to achieving a fair playing field, and recommend actions to be taken to address them. We are already well aware that a number of the most deep-seated barriers affect voluntary sector providers, not those from the private sector. While I would not want to prejudge the result of the review, I fully expect that it will put forward a number of actions which could be taken to remove such barriers, thereby better enabling third sector providers to compete fairly with other providers of NHS services. I hope this reassures the noble Lord that, while I think we should look across all providers, it is our view that barriers facing voluntary sector providers are greater than those facing the private sector and we expect the review to focus accordingly on those.
I turn to the separate but related issue raised by my noble friend Lord Newby. We have also listened to the matters raised in other debates during this Bill and during the passage of the Public Services (Social Value) Bill, about the need to take social value into consideration in public sector procurement more generally. The Government agree that a wide-angle lens on the extended social, economic and environmental benefits when conducting procurement exercises can only be helpful. Today I am going further and put on the public record that the Secretary of State for Health is committing that the requirements in the public services Bill will be fully applied in relation to commissioning of NHS services through the procurement guidance that the board will produce on this. These were issues that were raised very compellingly by the noble Lord, Lord Mawson, and I pay tribute to him for his powerful and consistent advocacy on this theme.
I hope very much that your Lordships will find the amendment of the noble Lord, Lord Patel of Bradford, agreeable and I will be happy to support it.
Lord Patel of Bradford
I am very grateful for the Minister’s support in this and for taking it a lot further than I had done initially. I have learnt an enormous amount while we have been discussing these issues and I am sure that the not-for-profit sector will be very grateful for the support provided by the Government on this issue. I am sure it will raise a number of very important factors that will improve service provision for those areas.
Lord Patel of Bradford
“(2) The report must include recommendations as to how any differences in the treatment of NHS health care providers identified in the report could be addressed.
(3) The Secretary of State must keep under review the treatment of NHS health care providers as respects any such matter as is mentioned in subsection (1).
(4) In this section—
(a) “NHS health care providers” means persons providing or intending to provide health care services for the purposes of the NHS, and(b) “health care services for the purposes of the NHS” has the same meaning as in Part 3 of the Health and Social Care Act 2012.”
Earl Howe
My Lords, I will speak also to Amendments 9 and 10. The three amendments in this group share a common purpose in strengthening the duties on the NHS Commissioning Board and CCGs in relation to reducing inequalities. I am grateful to my noble friend Lady Tyler for highlighting on Report the need to ensure this, and I promised at the time to introduce the necessary amendments at Third Reading to achieve it.
New sections 13G and 14T place duties on the NHS Commissioning Board and CCGs to have regard to the need to reduce inequalities between patients with respect to their ability to access health services, and to the outcomes achieved for them by the provision of health services. As the Bill stands, the NHS Commissioning Board and CCGs must assess in their annual reports how they have discharged this duty. However, they are not explicitly required to plan for this and, in the case of CCGs, not specifically assessed on this in the board’s annual performance assessments. These amendments introduce explicit requirements on these points. They require the board to include in its business plan, and CCGs to include in their annual commissioning plans, an explanation of how they intend to discharge their inequalities duties. I remind noble Lords that CCGs will consult on their commissioning plans with those for whom they are responsible, and must involve each relevant health and well-being board in preparing and revising their plans.
The amendments also require the board to specifically assess in its annual performance assessment of CCGs how they have discharged their inequalities duty. So CCGs will have to set out in their plans how they will take account of the need to reduce health inequalities and report on how they have done this in their annual reports, which is of course already a provision in the Bill. Their performance on this will then be one of the factors taken into account by the board when it assesses their performance. Together, these amendments ensure that from the development of the plans to the reporting on their effects, having regard to the need to reduce inequalities will be given particular emphasis and importance by commissioners. I beg to move.
Baroness Tyler of Enfield
My Lords, I shall speak to government Amendments 7, 9 and 10, to which my name is attached, and in so doing I thank the Minister for tabling them. As he has explained, they all relate to health inequalities; I would like briefly to place them into a wider context. In doing so, given that this is Third Reading, I make one general point. My view from the outset has been that this Bill should be judged ultimately by the health outcomes it produces—essentially, whether and how it improves people’s lives, particularly the most vulnerable. Because so much of the debate over the past year has—necessarily, I guess—been about structures, I sometimes feel that we have rather lost sight of this fundamental point. One specific point that has not received enough airspace in our deliberations, perhaps until today, is about reducing health inequalities—or, put another way, doing something real about unequal life chances. At the very outset, I felt that the fact that this legislation contains a landmark legal duty for the Secretary of State to reduce health inequalities was really significant.
As the noble Earl has explained, as the Bill has progressed through its various stages this duty has been strengthened at various levels in the new structure, so that reducing health inequalities now runs through the whole fabric of the health system in a way that we have not seen before. I will not repeat precisely what these amendments do, because they have been very ably set out. Briefly, however, in relation to the requirement that each CCG’s performance is assessed each year by the board and includes the progress made in reducing health inequalities, we all know that what gets measured gets done. That is what makes this significant.
However, we should not look at these specific duties in isolation from other key aspects of the Bill on accessibility and integration. New duties to join up services between health, social care and other local services, such as housing and homeless support, will have a crucial role to play here. The role of health and well-being boards in promoting joint commissioning should enable more integrated services, particularly, for example, for older people and people with learning disabilities. Finally, the much stronger focus on public health—I greatly welcome its return to local authorities—will be key to tackling issues such as obesity, smoking, drug and alcohol abuse and sexual health, which make a real difference in reducing health inequalities. This all adds up to a much stronger package than we have had before. Of course, the proof of the pudding will always be in the eating, but this very welcome shining of the spotlight on health inequalities has the potential to be a game-changer for some of the most vulnerable.
However, in case noble Lords think that I am being too uncritical, I finish on a point of concern. Local authorities are well placed to tackle inequalities, due to their responsibilities for education, housing and other factors which impact on health. The current proposition for holding councils to account for this is through what the Government call a health premium, to give extra money to those areas that reduce health inequalities. We need to be careful that this does not simply reward those areas where it is easiest to tackle inequalities and divert money away from areas where more fundamental problems may slow down progress.
In thanking the noble Earl most sincerely for tabling these amendments and paying tribute to his strong personal commitment on these issues, I respectfully ask him whether he will keep the health premium under review as it is rolled out.
Earl Howe
My Lords, I am very grateful for the helpful and supportive comments that have been made by my noble friend. I can give her the assurance that she sought in her closing remarks that we will certainly keep the health premium under review. However, she will know that the design of that premium is work in progress at the moment and I take fully on board the point that she made about it.
It is perhaps helpful if I make it absolutely clear that the duties on commissioners in respect of reducing inequalities are intended to be as important as any other duty on a CCG, and are most definitely not subordinate to other duties. In particular, I would like to make it clear that they are not secondary to the duties in relation to patient choice.
I hope that noble Lords will recognise that these amendments give a central place to the duty in relation to reducing inequalities within the arrangements by which the board and CCGs will plan for, and be held to account for, their commissioning activity. I hope that for this reason noble Lords will give them their support.
“( ) the provision of integrated urgent and emergency care at all times.”
Baroness Finlay of Llandaff
I am grateful to the Minister for meeting me with the President and Vice President of the College of Emergency Medicine and for listening so attentively to the concerns raised. This amendment comes from those discussions and aims to resolve the potential lacuna around the commissioning and the provision of unscheduled urgent and emergency care at all times of day and night.
Emergency medicine departments—commonly known as A&E—see 15 million patients a year, of whom about a quarter are children. About 7.5 million patients arriving in A&E are not ambulant. Typically one-third of these on a stretcher need to be admitted, most frequently into an acute medical bed. The extent of seriously ill and injured attendees is illustrated by the fact that one in 50 will need high levels of care. A quarter of all intensive care admissions come through A&E and seriously ill patients go straight to coronary care and high dependency units from the resuscitation room in the emergency department.
The full spectrum of integrated services has to involve acute medicine, acute surgery and orthopaedics, paediatrics, obstetrics and gynaecology and is crucially underpinned by critical care and anaesthesia.
These very seriously ill patients need integrated services along the whole care pathway; care cannot be broken up. The full spectrum of back-up services with radiology and laboratory services needs to be there 24/7. The best outcomes—and we were talking just now about patient outcomes—for trauma and stroke victims are absolutely reliant on immediate cross-sectional imaging, ideally co-located in the emergency department.
There is a need for closer integration and improvement of the services needed to care for emergency department patients. For example, those with mental health problems, both acute suicidal ideation and acute psychosis, and those with drug and alcohol problems, need a comprehensive integrated psychiatry service, as they are a very vulnerable group. Improving primary care, both out of hours and alongside emergency departments, is essential if departments are to deliver the best care and not be overwhelmed. This will require close collaboration, integration and accurately informed commissioning.
Emergency departments are the 24/7 final safety net for all other services in the healthcare system and they are the last open-access point of call. Escalation of a problem, failure in community care and inadequate out-of-hours primary care support all result in urgent presentation out of hours. Such patients often arrive at night, are unstable clinically and cannot be sent home again, as they are alone or unable to monitor the condition reliably. These 7 per cent to 8 per cent of attendees need to be observed for up to 24 hours in a clinical decision unit, where there is twice daily consultant input, either until they are stable enough to be sent home, or until deterioration indicates admission and ongoing management.
Emergency departments are busy places, providing 24/7 care, looking after patients with wide-ranging needs from resuscitation to reassurance, and interacting with many specialties to ensure the best care. The seriously ill initially need the close interaction of typically three to four specialties; any fragmentation threatens the quality of care.
Commissioning of services in emergency care is optimised by direct and close working between those specialists responsible for delivery and the local commissioners. Given the size and complexity of urgent and emergency care, this should mandate such a specialist on the local commissioning board.
The challenge to us with this Bill is to ensure that commissioning processes recognise that patient choice in emergency care is inappropriate, as every patient needs access to a quality service that is fully integrated with pre-hospital services such as out-of-hours primary care and ambulance services, and with all the back-up and specialist services that patients are moved to for ongoing management.
The national Commissioning Board must work very closely with the College of Emergency Medicine to ensure that commissioning guidance drives up the standards of weaker departments, that the integration of services is included in the commissioning and that the urgent and emergency service for a population has the full skill set to deal with the full range of undifferentiated clinical problems that arrive at the only open access point of care. It is key to local commissioning that specialists in urgent and emergency care are directly involved. Without that, we will replicate Mid Staffordshire, but it may not be evident until unnecessarily large numbers of lives are lost. I beg to move.
Baroness Hollins
My Lords, given the concerns among the medical profession which are still evident, I ask the noble Earl for reassurance that, for those services where commissioning is appropriate, competition will always be on the basis of quality, not price, and that providers will not be able to cherry-pick lucrative parts of the care pathway to the detriment of vulnerable patients, such as people with learning disability or severe mental illness—people that I am particularly concerned about as a psychiatrist. The health and well-being of these patients depends on the effective delivery and co-ordination of complex care pathways.
According to the Guardian, NHS Devon and Devon County Council have shortlisted bids to provide front-line services for children across the county, including some of the most sensitive care for highly vulnerable children and families, such as child protection, treatment for mentally ill children and adolescents, therapy and respite care for those with disabilities, health visiting, palliative nursing for dying children, and so on. On the shortlist for the £130 million three-year NHS contract are two private profit-making companies as well as the Devon Partnership NHS Trust, which has been bidding along with Barnardo’s and other local charities.
The contract will apparently be awarded, according to the criteria, to the most economically advantageous bid, which appears to be possible under current commissioning arrangements. I seek reassurance from the Minister that the new safeguards in the Bill also prevent such commissioning decisions risking the perceived risks raised by my noble friend with respect to the commissioning of integrated care pathways in emergency care. I am referring not just to the emergency care part of the pathway but to the whole care pathway, which inevitably requires stable working relationships across organisational boundaries.
Earl Howe
My Lords, this is an important topic. The noble Baronesses, Lady Finlay and Lady Hollins, have eloquently set out the important role that emergency care services play for all of us, and I could not agree more.
The Government are clear about the need to strive continuously for improved quality of urgent and emergency care. The move to clinical quality indicators for A&E and ambulance services will ensure a better reflection of the quality of the services that patients receive, rather than encouraging an isolated focus on time factors. Furthermore, the introduction of the NHS 111 service supports the commitment to develop a coherent 24/7 urgent care service in every area of England that makes sense to patients when they have to make choices about their care.
I hope that I can reassure the noble Baroness about how clinical commissioning groups will be supported in commissioning high quality emergency care. The NHS Commissioning Board will produce commissioning guidance, and also may produce guidance on the exercise of CCGs’ duty to obtain advice under new Section 14W. Both of these will reinforce the importance of effective and informed commissioning of emergency care. We have had many debates about clinical advice for commissioners during the course of our deliberations and, as I have previously mentioned, we anticipate that the clinical senates and networks that the Board will host will provide a resource of expertise, including in urgent and emergency care, on which CCGs can draw to inform their commissioning decisions. Equally, in order effectively to discharge their own duties with regard to obtaining appropriate advice, the NHS Commissioning Board would also need to take advice from a range of experts in order to assist them in producing such guidance. I understand that the College of Emergency Medicine has already engaged in useful conversations with the Commissioning Board Authority about how such engagement could work as it moves forward.
I reiterate the framework within the Bill for ensuring the accountability of CCGs in relation to the discharge of their duty under new Section 14W. CCGs must demonstrate, as part of authorisation, that they have the competence to carry out their functions effectively, and they will be held to account on that. As part of the authorisation process, the NHS Commissioning Board would need to be satisfied that a CCG can effectively commission the full range of services that its populations are likely to require, which of course would include urgent and emergency care services. It would also need to be satisfied that a CCG had the appropriate mechanisms in place to ensure that it could discharge its duty to obtain the appropriate level of advice in relation to these services. I also reassure the noble Baroness that the performance assessment of CCGs by the NHS Commissioning Board will look in particular at how they have discharged their duty to obtain advice.
The noble Baroness suggested that we should mandate that an emergency care specialist should have a seat on the CCGs’ governing body. As your Lordships are aware from our previous debates on membership following the NHS Future Forum report, we committed to use regulations to specify a minimum membership for CCG governing bodies. We plan to specify that each body should include at least two lay members, at least one registered nurse and at least one secondary care doctor. This secondary care doctor may well be an emergency care specialist, or a CCG may choose to add additional specialists to its body should it wish to do so—there is nothing in the Bill to prevent that. However, in terms of going further and specifying that an emergency care specialist must sit on these bodies, I am afraid I cannot go that far.
The NHS Future Forum’s report states that it would be unhelpful for CCGs’ governing bodies to be representative of every group. We agree with that. The prime purpose of a governing body should be to make sure that CCGs have the right systems in place to do their job well. It is these systems that will ensure that they involve the appropriate range of health and care professionals in commissioning. Requiring a bigger group of professionals on the governing body itself would not mean that a broader range were involved in designing patient services; it would just lead to governing bodies that were too large and slow to do their job well.
Turning now to the noble Baroness’s points about integration and competition in the context of emergency care, I agree with her about the importance of integration, and the Bill contains strong provisions to encourage and enable the delivery of integrated services. I reassure her again that choice and competition will not prevent the delivery of integrated services where these are in patients’ interests. Additionally, it will of course be for commissioners to decide where to make use of choice and competition in order to best meet their patients’ needs, and it is clear that this would not always be appropriate. Emergency care is a good example of a service where we would not expect to see competition.
I take this opportunity to respond to related concerns from the noble Baroness, Lady Hollins, who asked about the basis for competition. The Bill is clear that competition will not be pursued as an end in itself and that competition will always be on quality, not price. We made amendments in another place to ensure that this would be the case by removing the ability of Monitor and the board to set maximum prices rather than fixed prices. I hope that that answers the noble Baroness’s question on this point.
The duty on CCGs to obtain advice is deliberately wide-ranging in scope purposefully so as to ensure that it covers the full spectrum of services that CCGs will commission. I draw noble Lords’ attention to the language of new Section 14W: the advice must be drawn from people,
“who (taken together) have a broad range of professional expertise in … the prevention, diagnosis or treatment of illness, and … the protection or improvement of public health”.
That is very inclusive and it echoes the approach taken in Section 3 of the NHS Act, which the Bill amends, to establish the fundamental commissioning responsibilities of CCGs.
Noble Lords will wish to note that the interpretation—
Baroness Williams of Crosby
I am grateful to my noble friend for giving way. I want to ask one question. I recently met a group of general practitioners who claimed that they were too busy to be able to go out and find advice. Is there any central point, perhaps in the cluster or on the Commissioning Board, to which very busy GPs could go to get some idea about where they might obtain advice on, let us say, an unusual condition?
Earl Howe
I reassure my noble friend that there will be no shortage of advice available to CCGs once they are up and running, not only from the NHS Commissioning Board centrally—she will know that a programme of work is in hand on the part of NICE to produce quality standards that will underpin the commissioning guidance—but also from the clinical senates, which will fall under the wing of the board. We envisage that those senates will be a resource on which clinical commissioning groups can draw, not least in the area of less common conditions. We are very conscious that the quality of commissioning needs to be improved in many areas, and this is our answer to that. My noble friend has put her finger on an issue that is of central importance if the new duty to improve quality is to become a reality across the system.
Noble Lords will wish to note that the interpretation section of the NHS Act 2006 states that illness includes any disorder or disability of the mind,
“and any injury or disability requiring medical or dental treatment or nursing”.
We are absolutely clear that this covers cases relating both to physical and mental health requiring urgent and emergency care. This definition will apply to the duty to obtain advice in the new Section 14W. I hope I have been able to reassure the noble Baroness that CCGs will absolutely be expected to ensure that they obtain appropriate advice in order effectively to commission emergency and urgent care services; that they will be held to account for doing so; and that the current duty is deliberately drafted to ensure that it covers the full spectrum of services which CCGs will be expected to commission, including emergency and urgent care services. On this basis, I hope that she feels content to withdraw her amendment. I would, however, like to take this opportunity to thank the noble Baroness for our recent conversations on this topic, along with the College of Emergency Medicine.
My right honourable friend the Secretary of State and I both recently met with the college and found these meetings useful in exploring how we can ensure that we make the most of the opportunities presented by the new system in relation to improving the quality of emergency care. We look forward to constructive discussions with the college and with the noble Baroness as we move on to implementing the new arrangements.
Baroness Finlay of Llandaff
I am most grateful to the Minister for that full reply and for his recognition of the contribution that the new College of Emergency Medicine is making to the urgent care of people who are often in extremis. It is literally the life-saving service for many people every day across the country. I am also grateful for his assurance that the performance assessment of commissioners will include how they seek advice from the appropriate people who really know what they are doing, and that integration is assured. The importance of 24/7 recognition has also been brought out in his answer. I am sure that the College of Emergency Medicine will be delighted with the assurances that he has given, as will A&E consultants up and down the country. I am most grateful to him and beg leave to withdraw the amendment.
“(c) after “such time as the” insert “clinical commissioning group or””
Earl Howe
My Lords, I shall speak also to the other amendments in this group: 12, 13, 15, 16 and 18-29. During Report, the noble Lord, Lord Patel of Bradford, tabled an amendment to Clause 40, then Clause 39, relating to Section 117 mental health after-care services. Noble Lords will recall that in recognition of the strength of feeling on this issue, we did not oppose the noble Lord’s amendment. In the same spirit, we have now brought forward a set of consequential amendments resulting from the noble Lord’s amendment. Some of these simply tidy up the wording of the Bill as a result of the noble Lord’s amendment. Others are positive amendments to ensure that those receiving services under Section 117 of the Mental Health Act 1983 are not inadvertently excluded from benefiting from other provisions in the Bill. Specifically, the amendments ensure that Section 117 services are included in determining payments for quality; in special reviews and investigations by the Care Quality Commission; in emergency preparedness planning; in local authority scrutiny of the NHS; in NICE quality standards; and in information standards and information gathering. They also ensure that Section 117 services can continue to be available through direct payments.
I am pleased that the noble Lord, Lord Patel, has welcomed these amendments, and I hope that other noble Lords will agree that it is important that Section 117 services are included in all of these cases and will support these amendments. I also take this opportunity to ask noble Lords to support two minor and technical amendments. These remove an uncertainty about the breadth of the meaning of the reference to the Public Services Ombudsman for Wales in Clause 184, by clarifying that independent advocacy services extend only to certain complaints to that Ombudsman. I beg to move.
Lord Patel of Bradford
My Lords, I am obviously very happy to add my name to the amendments tabled by the Minister in respect of Section 117 of the Mental Health Act, pertaining to after-care services. I was grateful to the noble Earl and to the noble Baroness, Lady Northover, for not opposing my amendment on this issue. It somewhat caught me off-guard, but I was pleased with that. I was particularly pleased that we have continued to work together to add these technical adjustments today. To remind noble Lords: Section 117 requires primary care trusts and local authority social services to work jointly in providing vital after-care services. These types of services can vary a great deal, including visits from the community psychiatric nurse, attending a day-care centre, administering medication, providing counselling and advice, and most importantly supporting accommodation within the community.
Section 117 provides crucial protection for vulnerable people because it ensures that their local primary care trusts and local authority provider supply that after-care package in an appropriate way, including sorting out the funding on an agreed basis. This means that these essential services cannot be taken away until both the PCT and local authority, in consultation with the patient and their carers or the voluntary sector—the people who are supporting some of these patients—are satisfied that the patient no longer needs their services. The original concern that the noble Lord, Lord Adebowale, and I had was that Section 117 after-care was being unnecessarily diluted, as a joint duty to provide after-care was being changed. To all intents and purposes, Section 117 would have been treated as a duty under Section 3 of the NHS Act, and that would potentially have opened up the possibility of charging.
The noble Earl has laid out the protections set out in additional amendments and they are to be welcomed. They go beyond my original concerns and address a number of important issues. I will not list those listed by the noble Earl, but I was happy about the part of Section 117 arrangements that fall under the remit of the Care Quality Commission, ensuring that the regulator and monitor of services should look across patient pathways. I am particularly pleased about the amendment that ensures that Section 117 services are eligible for direct payments. This is a positive step, because it means that people detained under the Mental Health Act can take more control of the services that they receive after their release.
This is not only the right thing to do, as it will empower people who have been affected by being detained, but it is also likely to help to avoid readmissions by ensuring that people are more satisfied and engaged with services. We still have a long way to go to improve services for people detained under the Mental Health Act; in particular the experiences and outcomes when they return to the communities where they live. However, these amendments are a definite move in the right direction and I must congratulate the Minister for having the foresight and good grace to bring these amendments before the House. I wholeheartedly support them.
Baroness Finlay of Llandaff
My Lords, in this group of amendments there are two that relate to Wales. On behalf of the NHS in Wales, I am most grateful for the clarification. Could the Minister confirm that the Public Services Ombudsman would deal with complaints by any provider who is providing services for and on behalf of the NHS, irrespective of whether that is an NHS provider or a non-NHS provider? It would be helpful to have that clarification.
Baroness Jolly
My Lords, I shall speak briefly to Amendments 15 and 16 as well. They seem to be another correction to the minutiae of the provisions to establish a system of “nothing about me without me”—patient and public involvement—which we all support. However, it seems counterintuitive to aim to empower local people to improve health and social care without checking with them on the detail of how that empowerment should take place. The checks and balances of local patient and public involvement will be particularly important as the rest of these reforms are implemented, so we must get it right now.
Most of this part of the Bill was subject to a redraft, just a week or so ago, without any public consultation. Therefore, it would be helpful if the Minister could give an undertaking that there will be public consultation on all the many regulation-making powers within it. Thirty-six provisions are dependent on regulations, as are two lots of statutory guidance and two lots of directions.
In all previous iterations of patient and public involvement structures, there has been consultation on regulations. Given the complexity of the latest set of provisions and the limited opportunity to scrutinise them, it would seem wise to consult on them. I hope that the Minister will confirm that this will be done.
Earl Howe
My Lords, I am grateful to the noble Lord, Lord Patel of Bradford, for all that he said. I hope that the House will accept the amendments, which I assure noble Lords are intended to bolster and support the amendment previously agreed by your Lordships.
To address the issues raised by my noble friend Lady Jolly, as my noble friend Lady Northover said on Report, we have always envisaged that local authorities will have some freedom and flexibility over the organisational form of their local healthwatch, depending on local needs and circumstances. On reflection, we felt the Bill did not provide the right legal framework for this policy to be realised. My noble friend Lady Jolly makes a good point about the need to get this right. I should like to reassure her that we have already begun to engage key stakeholders on the content of the regulations and will continue to do so while they are being developed.
It may also be helpful to point out that we envisage the content of a number of these regulations—for example, those on the duties of service providers to respond to local healthwatch and allow entry to local healthwatch—will be based on the current Local Involvement Network regulations.
The noble Baroness, Lady Finlay, asked me about the Welsh amendments. I can confirm that the ombudsman covers all patients funded by the NHS. It is not something that is judged on an organisational basis. I hope that is helpful.
“( ) In section 275 of the National Health Service Act 2006 (interpretation) after subsection (4) insert—
“(5) In each of the following, the reference to section 3 includes a reference to section 117 of the Mental Health Act 1983 (after-care)—
(a) in section 223K(8), paragraph (a) of the definition of “relevant services”,(b) in section 244(3), paragraph (a)(i) of the definition of “relevant health service provider”,(c) in section 252A(10), the definition of “service arrangements”,(d) section 253(1A)(d)(ii).”( ) In section 48 of the Health and Social Care Act 2008 (special reviews and investigations), in subsection (2)(ba), after “the National Health Service Act 2006” insert “or section 117 of the Mental Health Act 1983 (after-care)”.
( ) In section 97 of that Act (general interpretation of Part 1), in subsection (2A), after “section 7A of that Act)” insert “or section 117 of the Mental Health Act 1983 (after-care)”.”
Baroness Cumberlege
“( ) On abolition of the Health Protection Agency, the appropriate authority in England will take steps to ensure that any organisation established to assume the Agency’s functions (and any others deemed appropriate) will—
(a) have a Board with a non-executive Chair and a majority of non-executive directors;(b) be able to undertake and publish independent research and to bid for research funding from any source; and(c) be able to tender for contracts related to its functions.”
Baroness Cumberlege
My Lords, Amendment 56 is simpler than the amendment I tabled on Report but it is necessary because I need some undertakings. I know that other noble Lords also seek those. The amendment concerns Public Health England. Both amendments found favour across the House in the previous debate, as I hope Amendment 14 will in this one. I thank noble Lords who have put their names to the amendment. I know that the noble Lord, Lord Turnberg also wished to put his name to it, but there was no room on the Marshalled List.
As I said, the amendment concerns Public Health England, the new body that is destined to take on the duties of the Health Protection Agency, the cancer registries, the National Treatment Agency, the Public Health Observatories and some of the functions of the regional directors of public health and their teams. The staff of Public Health England will number around 4,500 people, so it is an important and considerable agency. The original proposal was that the organisation should be governed by a civil servant acting as the chief executive, without a board to whom he or she would be accountable. It was a model that many of us found very strange and thought unworkable.
At the meeting we had with him and later in correspondence, my right honourable friend the Secretary of State made it clear that he values an unobstructed line of accountability between the individual charged with the day-to-day running of Public Health England and him. However, he agreed in his letter, which I received on 15 March, that Public Health England,
“needs an appropriate level of operational independence for it to be most effective”,
and that,
“it will be essential for it and the Government as a whole to work together seamlessly and to share a common agenda”.
He went on to say:
“I do accept that, if PHE is to achieve our ambitions for it, the chief executive and the Secretary of State should be seen to be subject to frank and expert challenge. To help deliver that challenge I propose to appoint a chair for PHE, through an open and fair competition under the public appointments process, and I will ensure that the PHE board has a majority of non-executives members”.
Later, he refers to them as non-executive members, rather than directors, so I seek an assurance from my noble friend Lord Howe that we are talking about directors and not members. Perhaps he will confirm this.
The board will advise on the running and development of Public Health England but my right honourable friend states that he has not yet had time to consider details of this aspect of the chairman’s role. Once the chief executive post has been filled, he will discuss the overall governance structure of PHE. He will want to make sure that the expertise and experience of the chair will complement those of the chief executive and other senior PHE staff. He goes on to say:
“The essential point is, that we need to design a role for the chair that is significant enough to attract a high quality, respected candidate without diluting the responsibility of either the chief executive or the Secretary of State”.
It is very much my wish that he should involve me further in these proposals. He says that he will write to me, but I should very much like him not only to write but perhaps to seek my views on this aspect of the organisation.
In his letter the Secretary of State writes:
“The chair and non-executive directors will have direct access to Ministers through regular, and if necessary ad hoc meetings”.
I very much welcome that. He goes on:
“They will also have editorial control over a section of PHE’s annual report”.
Could my noble friend tell me what “section” means in this context, as he will know that the annual report will be a crucial document and should be honest and unfettered in its analysis of the nation’s health? He continues:
“The annual report will reflect feedback from external agencies and individuals who have significant dealings with PHE … and PHE data will be subject to the code of practice on official statistics, which severely restricts access to certain material by officials or Ministers before release”.
Although I very much welcome this, I wonder whether my noble friend could give me an assurance that Public Health England staff will be able to give professional advice freely to the public. Since they are employed by an executive agency, they will be civil servants—subject to Civil Service contracts and bound by the Civil Service Code. They will be able speak out only if what they plan to say is departmental policy and has been approved by Ministers.
If PHE is to be the voice of public health, as we hope it will be, it will need to be able to advise the public and other professional bodies. The experts and specialists working in the executive agency will on occasions need to give professional advice that has the confidence of the public without its necessarily having been approved by the department.
Public health specialists employed by the NHS Commissioning Board or a local authority will have the freedom to speak out—of course within their professional code of conduct. I am not seeking for the amendment to be placed in the Bill but an assurance that this difficult tension will be addressed.
In earlier debates, the noble Lords, Lord Warner, Lord Patel, and Lord Turnberg, voiced their strong concerns about the commissioning and conduct of research by PHE—in particular, its ability as regards research funding for external organisations. I am sure that those noble Lords will seek assurances on this.
My right honourable friend the Secretary of State writes that he accepts the importance of the issue and will publish a more detailed description of PHE’s role in research, including its relationship with academic institutions and other agencies. I am delighted that he is happy to involve me and, I hope, other noble Lords with the Chief Medical Officer in further discussions on this issue.
We have come a long way since Committee in designing a much more robust and satisfactory national board to undertake responsibilities for public health. Public health is sometimes seen as a side show in the maelstrom of issues that dominate the provision of NHS services but it contains the basic principle of social justice. It is to ensure that people have access to the essentials for a healthy and satisfying life, and nothing can be more important than that.
The Secretary of State has throughout sought to make public health centre stage, and I pay tribute to him for his commitment and determination, and thank him for listening to and acting on our suggestions. My noble friends Earl Howe and Lady Northover have been equally diligent and generous with their time in meeting our concerns. I know that the noble Lord, Lord Beecham, and others would have preferred there to be a special health authority. I can understand their wish, but the flexibility that an executive agency gives us might be useful in the future. The Secretary of State has promised post-legislative scrutiny of the Bill, specifically to consider whether PHE would be better served by a different arrangement or a better organisational form. I welcome that.
I have quoted fully and, I suspect, rather boringly from the letter sent by my right honourable friend the Secretary of State because it is very unlikely that my amendment will be in the Bill. I therefore need a record of the changes that have been promised. I do not doubt for a moment that there is any intention to renege on these undertakings, but I know how easy it is for things to go astray. I am therefore anxious to get as much as I can into the pages of Hansard as a reference for the future. I very much look forward to hearing the views of other noble Lords and my noble friend’s reply. I beg to move.
Lord Warner
My Lords, I have put my name to the amendment and pay tribute to the hard work put in by the noble Baroness, Lady Cumberlege, on making progress in this area. It has occasionally seemed a little like trudging through the Somme mud, but we have made some progress. I share her view that we want to hear at length from the noble Earl about the assurances promised by the Secretary of State, particularly on the governance issue.
I want to raise in a little more detail the issues in paragraphs (b) and (c) of the amendment, regarding the ability of Public Health England to undertake and publish independent research and to bid for research funding from any source. This remains an unresolved issue. The dialogue is continuing in the Department of Health because in November a joint working party was set up between the Health Protection Agency, which is being abolished, and the department about the research activities of the new Public Health England. I remind noble Lords that this is particularly significant because at stake is the large sum of money that the HPA, as a non-departmental public body, raised for research, its own funding of research, as well as the scientific independence and excellence of its staff. There has been a great deal of concern that creating an executive agency with civil servants would make it difficult for that research quality and volume to be maintained in the new world.
Despite the Health Secretary’s assurances, concerns emanating from within the current agency remain around whether things have really been sewn up in terms of the ability of PHA, within the resources available to it, to control its destiny in the future and to go out to seek the research contracts that will enable it to meet the threats and concerns about public health that may have to be faced.
The nub of this issue comes down to a simple matter that I should like to leave with the noble Lord and on which I ask him to provide assurances. My understanding is that the problem at the moment is that the department has taken funds from the Health Protection Agency and Public Health England and made them available only for academic partnership research projects. The concern is that this might lead to Public Health England being prevented from carrying out research if that was not flavour of the month in academic institutions. There could be conflict between the concerns of academics to pursue partnership research and the real needs that the scientists within Public Health England consider to be in the public interest in terms of the research agenda to be followed. That is the main unresolved issue causing concern to the scientists within the Health Protection Agency staff who are soon-to-be-transmogrified into Public Health England.
The more assurances that the noble Earl can give the more they will satisfy not only the signatories to the amendment but the future employees of Public Health England who are to transfer as scientists to the new organisation.
Baroness Jolly
My Lords, I have put my name to the amendment. Historically, both parties to the coalition were in agreement that there were too many quangos and that rationalisation was required. This is always difficult when it involves an organisation as well respected as the Health Protection Agency and others.
Its successor organisation, Public Health England, was going to take over the HPA’s and have duties with regard to the new structure of public health at local government level. However, that had no place in the Bill. On these Benches, we welcomed the move to ground public health in local authorities, and we welcome the statements by the Minister about the role, responsibility and duty of this newfound position.
However, we were anxious about public health at a national level. We were not alone, and I pay huge tribute to my noble friend Lady Cumberlege, who took up this cause at Report stage—probably before then—along with the noble Lords, Lord Patel, Lord Turnberg and Lord Warner. The Secretary of State now sees PHE as carrying out his functions. I am grateful for the time that he gave to meet us to explain his point of view and listen. He felt that to make Public Health England an executive agency of the Department of Health would give it a degree of separation and flexibility. It was argued that PHE needed to have not only an independent chair but a board with a majority of non-executive directors if it were to have credibility with professionals and the public, and for the reputation clearly held by the HPA and others to be maintained in England and abroad. It would need to be able to raise funding to carry out its research on both English and worldwide issues. All this has been ably described by the noble Lord, Lord Warner, and we should be grateful for some clarity from the Minister on the research activities proposed for the organisation. There is clearly intended to be a line of accountability from the Secretary of State through Public Health England to the directors of public health, and it would aid understanding all round if my noble friend could clarify Public Health England’s duties and accountabilities at local, community level with the directors of public health and local authorities. The line right the way down needs looking at.
I hope that the Minister will state that the Secretary of State is convinced that all of this is now a shared vision. However, as I stated earlier, none of this is stated in the Bill. My noble friend said that she will not push that, and I certainly will not, but I regret it, as it would be beneficial and make a really bold statement to the world outside that Public Health England is core to the Bill.
Can the Minister confirm the understanding of the Secretary of State’s letter and, perhaps, agree to the wording of the amendment?
Baroness Masham of Ilton
My Lords, the Health Protection Agency is held in high esteem throughout the world. It does the most important work in protecting society from infections and epidemics. The National Blood Service can be the blood of life. It is vital. Can the Minister give an assurance that the HPA will not be downgraded in any way? I support Amendment 14 and hope that the Minister will accept it. If he does, that will give some assurance to some of the people who have concerns about the changes. With so many complicated conditions, research should not be restricted and funding for this must be free and seamless.
Will Public Health England work with other countries? Infections have no boundaries. One never knows what is around the corner. The work of the body should be as independent as possible. Otherwise, we will lose some of our brilliant researchers to countries which will give them more freedom.
Lord Turnberg
My Lords, I rise to speak briefly, because much of what I might have said has already been said by the noble Baroness, Lady Cumberlege. I, too, am very grateful for the way that the noble Earl has listened to us and spoken and written to us with helpful comments, which I hope that he will reiterate today. I just want to make one point about the research undertaken by the current HPA. It is directed predominantly to infectious disease and bacterial and viral infections. In that area, it is really world-beating. Recently, two of its members of staff have been elected fellows of the Academy of Medical Sciences, which is quite an achievement. The idea that it should do all this research in academic research partnerships with universities is unhelpful. Although collaboration and co-operation with university departments is enormously valuable, it should not be a precondition that it should be able to do research only in collaboration with universities. I hope that the noble Earl will be able to nail that problem.
Lord Patel
My Lords, I shall speak very briefly. I spoke at length in Committee and on Report and I shall not repeat what I said. Other noble Lords have referred to the key issues. If Public Health England is to be a strong, high-profile, public health national organisation, it needs strong governance. It also needs the independent ability to bid for research funds, as the HPA currently does, as has been highlighted, both nationally and internationally. At the Report stage, I referred to the fact that the HPA currently gets a significant amount of contract research income from NIH. It is no easy task to get money from NIH for research. If it is forbidden to do that, and, as the noble Lord, Lord Turnberg, said, is allowed to do research only with academic institutions, and not independently, that will be wrong. I hope that the noble Earl, who has listened to the arguments in the meetings we have had, will be able to alleviate those anxieties.
Lord Beecham
My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Cumberlege, on the enormous effort that she has put in to moving the Government’s position somewhat although, as she says, in the view of some of us, not quite far enough.
The noble Baroness, Lady Jolly, referred to a degree of separation. I would rather that we had six degrees of separation; I think that we will probably have to settle for the current single degree of separation. That is slightly unfortunate, because, as other noble Lords have stressed, the question of independence of the organisation is crucial. In moving the amendment, the noble Baroness, Lady Cumberlege, raised that issue and mentioned the Civil Service code and the possible inhibitions on employees of Public Health England and what was the Health Protection Agency in giving that advice independently and openly.
Bearing in mind the discussions that we had earlier this afternoon about the relationship between civil servants and Ministers, I hope that the noble Earl will address that, if not today in his reply then subsequently, to explain how that relationship will work and to confirm the complete independence of members of staff in advising not only Ministers but, as the noble Baroness said, the public. I reinforce the points made by other noble Lords. I think we got a verbal assurance from the Minister last time, but I would like it fully explained that the research capacity of the organisation will be maintained.
The amendment is slightly more modest than originally proposed by the noble Baroness, and even more modest than some of us would have liked. For the life of me, I cannot see why the noble Earl should not be able to accept it. If he is not prepared to do that, perhaps he will explain why. At the very least, I hope that he gives the assurances and undertakings that the noble Baroness has sought and that we can take forward this part of the Bill, which in turn complements the best part of the Bill, which relates to public health in general.
Earl Howe
My Lords, I am grateful to my noble friend for the opportunity to return to this issue and for the extremely constructive and sincere manner in which she and other noble Lords have pursued it during and between previous debates in this House. My noble friend is anxious for Public Health England to be and to be seen to be a trusted and impartial champion for the protection of the health of the people and free to provide advice based firmly on the science and the evidence. So are we.
The Health Protection Agency has built an enviable international reputation that Public Health England must first live up to and then surpass. I take on board the question posed by the noble Baroness, Lady Masham, about downgrading. No, of course we want to build on the HPA’s undoubted achievements and have Public Health England seen as a world leader. All the current activity undertaken by the Health Protection Agency will transfer to the Secretary of State.
With that in mind, we have listened very carefully to what my noble friend and others have had to say and thought long and hard. I am happy to set out to her fresh proposals to meet her concerns and to build on the undoubted successes of the Health Protection Agency and the other organisations that will evolve into the new organisation.
The Bill gives a new and vital duty to the Secretary of State, and only to the Secretary of State, to protect the health of the people of England. To a very large extent, Public Health England will exist in order to help him to discharge that duty. It is for that reason that we feel we must preserve a very direct and clear line of accountability between the chief executive and the Secretary of State. While Public Health England undoubtedly needs operational independence to be most effective—a point raised by a number of noble Lords—it will be essential for it and the Government to work together seamlessly and to share the same objectives. Anything less could severely limit the Secretary of State’s capacity to undertake his statutory duty.
Lord Turnberg
I am grateful to the noble Earl for giving way. Will this board be an advisory board or the board?
Earl Howe
I think that the noble Lord asked me whether the board will be an advisory board or a board. Its function will be to provide advice. It will be a board, but the Secretary of State and the chief executive of PHE will look to the board for that robust challenge and advice that a public health service needs.
Lord Willis of Knaresborough
I am grateful to my honourable friend—I am sorry, I mean my noble friend; I keep calling him honourable, but I am sure he is as well—for that response to the noble Lord, Lord Turnberg. The issue is really quite fundamental. If what my noble friend has described is a purely advisory board, the board will not therefore be able to take any executive decisions about the nature of the research that it carries out; that will be totally dependent on the Secretary of State passing it down. Is that so? If so, how in fact will it interface with, for example, the new European programme, programme 8, in terms of European-wide research on public health?
Earl Howe
No, my Lords, my noble friend is not correct. It will be able to take decisions. What it will not be able to do is to bind the Secretary of State because, ultimately, if there is an issue of public health importance, it is the Secretary of State who must take responsibility for that. This said, Public Health England will of course be its own master as regards the research that it undertakes, and it will be operationally independent, as I emphasised earlier.
We will ensure the chair’s direct access to Ministers through regular and ad hoc meetings. The chair will have its own section in PHE’s annual report which it will draft personally and independently, and that report will also reflect the views of external agencies and individuals who have dealings with PHE. I hope that that gives my noble friend additional assurance about the independent voice that we want to see and hear.
My noble friend Lady Cumberlege asked me whether PHE will be able to give professional advice freely to the public. We expect it to do precisely that, in much the same way that the Chief Medical Officer already does. It will be good practice for PHE and the department to consult each other about communications on public health matters, but with a view to agreeing the content, not censoring it.
PHE data will be subject to the code of practice on official statistics, which severely restricts access to certain material by Ministers or officials before it is published. Within three years of PHE becoming operational we will undertake a review of its governance to ensure that it is entirely appropriate and effective.
My noble friend’s amendment also addresses the very significant issue of PHE’s capability to undertake research and to bid for external research funding—a matter to which the noble Lord, Lord Warner, devoted particular attention. This is something we have touched on in previous debates, and it is clearly vital to PHE’s long-term success. We will publish more information about how PHE’s research function will work, including its relationship with academic institutions, but I can assure noble Lords that it will be able to exercise all the necessary powers and duties of the Secretary of State in relation to research.
In particular, Clause 6 confers on the Secretary of State a duty to promote research relevant to the health service, which embraces public health services. Clause 11 specifies that the conduct of research is an appropriate step for him to take under his health protection duty. Clause 50 provides that charges may be made in respect of such steps. Clause 17(13) confirms the Secretary of State’s power to conduct, commission or assist research relating to health, which includes the power to apply for grants or other funding for the purpose of such research. In addition to the Bill’s provisions, the Secretary of State has power to generate additional income for the health service under Section 7 of the Health and Medicines Act 1988, which can be used by PHE to provide research services under contract. I can therefore reassure my noble friend and the noble Lord, Lord Warner, that existing legislation gives the Secretary of State, and therefore PHE, the freedom to bid for research funding and to tender for contracts.
The noble Lord, Lord Warner, asked about external partnerships and whether agencies that currently fund the HPA research will be able to fund PHE in the future. The answer is that we are not aware of any insurmountable obstacle to any of the HPA’s current partners choosing to fund PHE, although in some instances PHE may need to collaborate with an academic institution. Of course, we cannot guarantee that they will choose to. All we can do is ensure that PHE remains at least as attractive a partner for health protection research as the HPA has been. I can also say to the noble Lord, Lord Patel, that we will publish more information on this question quite soon, but we have no reason to believe, as I say, that academic institutions will be reluctant to go into partnership with PHE. In fact, the National Institute for Health Research has already announced that it will invite joint bids.
My noble friend’s amendment and the powerful way in which she has argued for its objectives—
Lord Warner
I am sorry to interrupt the noble Earl. I waited patiently until he had been through the research arguments but I am still not clear. He said earlier that Public Health England would be master of its own destiny in terms of research. The point that I and, I think, my noble friend Lord Turnberg were making was that, if it comes to a tussle between PHE and the National Institute for Health Research over doing research which PHE considers to be in the public interest but there is no academic partner to undertake that research, will PHE’s mastery of its own research destiny trump the attempt by the National Institute for Health Research to impose partnership working on the research agenda? That is the issue that I was trying to talk about and which I think my noble friend was also talking about.
Earl Howe
My Lords, although I understand the noble Lord’s question, I do not think that I can answer it at the moment, and I am sorry to disappoint him. My advice is that we do not think that partnerships will be necessary in all or every case for Public Health England. Whether the NIHR can insist on trumping the operational independence of Public Health England is not a question that I can answer very readily. The main point is that research would not have to be jointly conducted. The Secretary of State has the power to carry it out on his own. That means that, if there were a tussle between two priorities, the Secretary of State could insist that a certain programme should be prioritised. I think that that is probably as far as I can go in answering the noble Lord at the moment.
My noble friend Lady Jolly asked me some general questions about lines of accountability. I hope that she will have gathered from my remarks today that Public Health England will be accountable directly to the Secretary of State in the first instance. Directors of public health will be joint appointments between local authorities and the Secretary of State, although they will be local authority employees and directly accountable to the authority chief executive. It goes without saying that close joint working between PHE and local authorities will be crucial.
My noble friend’s amendment and the powerful way that she has argued for its objectives are a tribute to her and to the noble Lords who have supported her. I believe that I have responded positively to each point that the amendment seeks to establish and that that response can be made comprehensively without amending the Bill. That remains our strong preference. I hope very much that my noble friend is sufficiently reassured by the commitments that I have made today to withdraw her amendment.
Baroness Cumberlege
My Lords, I have no intention of testing the opinion of the House this evening. We have negotiated long and hard with my noble friends Lady Northover and Lord Howe. It has been a very interesting experience. Those noble Lords who have supported me by putting their names to my amendments have tutored me well in the art of negotiation. It has occurred to me that clearly you can negotiate only if both parties are willing to participate, and in this instance that has been the case. The Secretary of State, my noble friend and noble Lords have been more than willing to meet us and to debate and discuss matters with us, putting forward some very strong assurances about the future of Public Health England.
I know that my noble friend Lady Jolly wanted the amendment to be made to the Bill and for those words to be included in the Bill so that the constituency in the country—all the public health people involved—would see what we are trying to achieve. I knew some time ago that that would not be possible, and we have had a very full debate today, albeit at Third Reading, because we are very anxious to get all those assurances articulated and recorded in Hansard.
We will be keeping a very close eye on the development of Public Health England and I shall be framing the assurances that I have been given today. I shall have them on my wall and, when there are new Secretaries of State, I shall present them with this framed undertaking so that we can absolutely ensure that Public Health England goes from strength to strength and, as my noble friend said, is a world leader and, I hope, a world beater. We have a very good reputation in the world on public health. It is something that we must retain and improve upon, ensuring that we have a healthier nation for the future. I beg leave to withdraw the amendment.
(ca) a complaint to the Public Services Ombudsman for Wales which relates to a Welsh health body;”
““Welsh health body” means—
(a) a Local Health Board,(b) an NHS trust managing a hospital or other establishment or facility in Wales,(c) a Special Health Authority not discharging functions only or mainly in England,(d) an independent provider in Wales (within the meaning of the Public Services Ombudsman (Wales) Act 2005),(e) a family health service provider in Wales (within the meaning of that Act), or(f) a person with functions conferred under section 113(2) of the Health and Social Care (Community Health and Standards) Act 2003.”
Baroness Emerton
“Power to register health care support workers in England
(1) Health care support workers in England may enter a voluntary register assured by the Council for Health Care Regulatory Excellence, provided they have attended an assured training programme prior to entry on the register.
(2) The assured training programme shall be mandatory for all new health care support workers from 1 April 2013.
(3) The Secretary of State shall develop a Code of Conduct for all employees (whether or not entered on the register) who are providing care to NHS patients (including employees of local authorities) who are seeking to develop the necessary competencies for health care support work.
(4) The Secretary of State shall review the procedures for training under this section, and its benefits or otherwise, within three years of this Act receiving Royal Assent.”
Baroness Emerton
My Lords, the amendment concerns the power to register healthcare support workers in England. I shall try to be brief, as we had a long and thorough debate on this matter on Report and I have studied the Minister’s response to my amendment at that stage. I have had protracted discussions between Report and now with the noble Earl and officials, and I thank them most sincerely for the time and effort they have put into trying to meet my requests.
Healthcare support workers form a very large part of the workforce, whether they are in the employment of NHS hospitals, community services or local authority services, providing care in people’s homes, or in the large number of nursing and residential care homes. We should not forget the role played by social workers, which often overlaps with the role of healthcare support workers, and vice versa.
Many noble Lords have said in previous debates that large numbers of support workers provide high-quality care, and they have received some training in order to do that. It is not likely that this large number of support workers will decrease with a growth in demand from the rapidly expanding number of elderly, frail and vulnerable people who require high-quality care. However, it is also not possible to expect a magic wand—that is, the Government—to provide training overnight for everybody at once. Therefore, it is reasonable to find a way forward that provides a direction of travel that satisfies patients, the public, the professions and employers that the issue is being addressed as a matter of urgency within the economic situation in which we find ourselves.
I shall briefly address each item covered by the amendment. The Minister has indicated that Skills for Care and Skills for Health will be producing an assured training programme, prepared with professional inputs, that will, following consultation, be available for implementation in 2013. This will entitle successful candidates to be entered on the voluntary register if they so wish.
I am aware, and pleased, that the Minister has also agreed that work should proceed on reviewing the research on ratios of registered to unregistered personnel, and that the supervision of work delegated to registrants is vital. However, realistically, in some communities and hospital situations it is not possible for there to be close scrutiny of support workers’ performance. The recent report published by Which? clearly demonstrates neglect in the delivery of care to patients and in their safety. Clearly, the Government need a means of early identification of the failings in the delivery of care.
While the training programmes are being developed, perhaps we could ask, through the Minister, that registered nurses and midwives are reminded of their responsibility and accountability, that they have to assure themselves of the competences of individual support workers before delegating a task, and that, once a task has been delegated, it must be supervised. Where that proves impossible because of insufficient registered nurses and midwives, immediate action should be taken by a registered nurse to report to his or her manager and the employers should take action on the level of care that can be delivered in that situation. That will safeguard the safety and quality of care to patients.
I now turn to the second subsection of the proposed new clause. It is recommended that the next logical step would be to aim for the training of support workers to be mandatory. So far discussions on making the training of healthcare support workers mandatory has not found favour with Her Majesty’s Government. Many Peers indicated, on Report, the importance of all healthcare support workers receiving mandatory training and that it should be regulated. Although it is recognised that that could not be arrived at tomorrow, if Her Majesty’s Government could agree that the training programmes will be mandatory at a date to be determined for implementation, I am sure that the patients, the public and certainly the professions of nursing, midwifery and social care would be satisfied.
Subsection (3) of the proposed new clause requires the Secretary of State to develop a code of conduct for all employees whether they are entered on the register or just providing care. That includes the employees not just in the NHS hospitals but also in local authorities. That would provide clear guidance for employers as well as employees and should assist in ensuring that competences, where lacking, are made good by training modules or by withdrawing the person who does not have the skills or the competences. Without such controls of clearly defined competences being included for practising healthcare support workers and the correct delegation and supervision by registrants, it will be impossible to ensure the high-quality, safe, compassionate care that patients and clients deserve or indeed Her Majesty’s Government aim to provide. I hope that the Minister will feel able to provide a positive response to this request.
Subsection (4) requires Her Majesty’s Government to carry out a strategic review within three years, as the Minister undertook to do on Report, about whether statutory regulation of support workers is necessary in the light of progress with the proposed training programmes and the introduction of the voluntary register. Perhaps I may suggest that the review of the research on improving the ratios of registered nurses and midwives is also included in this review so that a holistic view can be gained of the future shape of the workforce required to deliver high-quality, safe and compassionate care, with the result of improved clinical outcomes that are cost-effective and of cost benefit. I beg to move.
Lord Patel
My Lords, on Report, I spoke strongly in support of the amendment in the name of my noble friend Lady Emerton. I thank the Minister for the many conversations that he has had with my noble friend and myself to try to resolve some of the issues. Like the noble Baroness, I am most appreciative of his readiness to meet and speak with us on many occasions.
We have about 450,000 healthcare support workers and some have had some training and therefore perform the tasks that they are given with fairly good competency. Others do not have any training and they might perform the tasks that they are given at variable levels. We also heard on Report from the noble Lord, Lord MacKenzie, and my noble friend Lady Emerton about the kind of tasks that healthcare support workers currently carry out. They range from simple nursing care or bathing or feeding duties to cannulisation and bladder catheterisation and even more invasive procedures than that. That should confirm to us that there is a need for some kind of standardised training programme that healthcare support workers must undertake so that their competences are assessed and so that they work to those competences. It is not fair that those healthcare support workers who have had some training and are competent to perform their duties have to work alongside others who have not had any training and, therefore, are lacking in competences.
On Report, one of the many things that the Minister agreed to take forward in relation to healthcare support workers, if I quote him correctly, was to try to establish assured voluntary registration, which the Council for Healthcare Regulatory Excellence will run. If we are to have any kind of register, surely ipso facto certain conditions must be satisfied before someone can go on to the register. Logically, that would suggest to me that there must be some form of training. If that is the case, why would we object to having training as a requirement for all new healthcare support workers? I well understand that it is not impossible, but very difficult and expensive, to try to train some 450,000 people who already carry out such tasks. That could be overcome by having a code of conduct imposed on employers; it would be their duty to ensure that whoever they employ has the competencies to do the tasks that they are asked to undertake. It would not be vastly expensive to get 450,000 people trained. Subsection (2) of the proposed new clause refers to “mandatory” training—I use the word “requirement”—for all new healthcare support workers from April 2003 before they go on the assured voluntary register.
I take a slightly different view about whether the register is voluntary or statutory. I know that the word “statutory” to all healthcare workers is important. I am registered by statute to be on the medical register but it is more important that the register has some meaning and that it works. If a voluntary register does not work, it is no good; if a statutory register does not work, it is no good. It is important that people who go on the register are trained and assessed as having those competences. Subsection (4) of the proposed new clause, to which the Minister agreed previously, requires that a review will be carried out for the benefit or otherwise of any kind of register that is established. I hope he will agree to that. I hope that the Minister will be able today to reassure my noble friend Lady Emerton.
I have been very touched by what my noble friend has said in the many conversations that she has had with me. To me, she typifies the attitude of a very caring nurse who is concerned about the poor quality of care seen in daily reports in newspapers; there was also a report yesterday from Which?, to which she alluded. That clearly affects her as a professional nurse. Therefore, I strongly support her amendment.
Lord MacKenzie of Culkein
My Lords, as a nurse I am always delighted to support the noble Baroness, Lady Emerton, and I particularly support this amendment.
I had hoped that the House might have agreed the need for statutory regulation and registration for healthcare support workers, but the Government should at least accept this amendment. It provides for a code of conduct, for mandatory training, which must be to an agreed standard, and for a requirement to have undertaken an assured training programme before one can enter the voluntary registers that are to be set up. These things should all be in the Bill; they are necessary to protect the patient and the public.
Training, in my view, has to be mandatory; it cannot be left to the whims of employers to decide how much or how little training to give to healthcare support workers. I know from nurses, including my step-daughter, who is a registered nurse, that some of that training is good, some of it is patchy and some of it is shockingly poor. Some of it is supernumerary today, on the team tomorrow; see a procedure today, carry out that procedure tomorrow. That old system of training has no place in the modern delivery of nursing care, but it is what many healthcare support workers have delegated to them.
The Minister knows my views about voluntary registers, but I have no wish to see them fail. If they are to succeed, every effort must be made to ensure that those who are eligible get on to these registers. He will correct me if my memory is playing tricks on me, but I seem to recall him saying at an earlier stage that employers could require someone to be on a voluntary register before appointment or promotion. I have no quarrel with that if we are properly to protect the public, but I want to know whether an employer can do that. If, say, there are two candidates for promotion with very similar training and experience on their CVs, but one is on the voluntary register and one is not, will the employer be able to refuse to see the person who is not on the voluntary register? I wonder what an employment tribunal might make of that.
I hope we can have an assurance that employers will be able to discriminate in this way, because I am concerned that everyone who should be on the register is on it. We know that rogues and rascals and those who are less than suitable are the ones who are not likely to want to be on a voluntary register, which is why I prefer the other course. However, we are where we are and I hope that the Minister can at least reassure us on this point.
Baroness Masham of Ilton
My Lords, I have my name to the amendment. During the passage of this Bill, some of us have been trying very hard to improve the care of vulnerable patients in hospital and in the community. I felt healthcare support workers should be registered and regulated, as many vulnerable patients, being frail and elderly or disabled in many diverse ways, have to rely on their carers. Your Lordships have heard that patients have been put at risk or died through neglect or assault in care homes and hospitals up and down the country. Many people wait in anticipation for the result of the review of the Mid Staffordshire Foundation Trust. This must not be covered up; lessons should be learnt in memory of the hundreds of patients who received poor care, were neglected and died. Surely it is our duty to try to help rectify this deplorable situation.
I have every admiration for the Minister, who has worked tirelessly over this Bill, but I do not agree with him that nurses who have been struck off their register can go back to caring for patients as unregistered healthcare assistants. We are exposing the most vulnerable in our society to greater risks and poorer care if we do nothing to prevent struck-off nurses continuing to work in a caring profession. This amendment is a compromise, but even so it has a very important part. Subsection (2) of the proposed new clause in the amendment states:
“The assured training programme shall be mandatory for all new health care support workers from 1 April 2013”.
Not to train people who care for vulnerable patients is deplorable. Last year I was involved in a case of a person living at home and using a respirator. The patient was left brain damaged when the agency nurse turned off the wrong switch. Adequate, appropriate training should be given; in that case, it was a health care worker who was also a nurse.
Many disabled people are living in the community, which is good, but many of them use technical equipment that needs training and understanding, such as hoists, pressure mattresses, peg feeds, catheters, complicated electric wheelchairs, ventilators, nebulisers, diabetic management, colostomies, adapted vehicles and many other complicated devices. An assured training programme should include where to place a patient’s food and drink and to assess whether the patient can feed themselves. If not, the healthcare worker should know how to do this; how to wash and bathe and deal with personal needs such as toileting; how to prevent pressure ulcers; moving and handling; and complications with patients who have problems and may be difficult and have a problem communicating. There are many needs, but kindness and common sense should prevail.
If the Minister and the Government do not agree with this amendment, it will mean they do not understand the needs of vulnerable patients’ care. If training is mandatory, I am sure employers will take notice.
Lord Cotter
My Lords, I thank the noble Baroness, Lady Emerton, for introducing this amendment, which I hope the Minister will agree gives an opportunity for a very important issue to be aired. Many noble Lords have aired it in the past; indeed, I raised it on the very first day of the Bill. It is an area that remains of concern, and I have been pleased to hear from the Ministers that they are well aware of this. I recollect at the beginning of the Bill speaking to a nurse who, with an air of concern in her voice, said that when she asked assistants to carry out work the responsibility remained with her if that work was not carried out correctly. I welcome this opportunity for the Minister I hope to give a very strong response to indicate the Bill will cover this issue. As the noble Lord, Lord Patel, said, we are talking about 450,000 healthcare assistants: many people of varying abilities and knowledge.
I will say no more except to thank the noble Baroness for her amendment and, in anticipation, to thank the Minister for his response, which I hope will be robust and clear as to what we are going to do to address this concern.
Baroness Finlay of Llandaff
My noble friend Lady Emerton, in tabling this amendment, has come up with something very sophisticated and really rather clever. By requiring education, she will ensure that the next group has its standards driven up. People enter into a caring group and learn from others around them; the problem is that at the moment they are learning bad practice as well as, hopefully, learning good practice.
Making sure that these are assured training programmes is eminently sensible. Modern educational techniques using e-learning, DVDs and other ways of training mean that you do not have to take people away from the job and put them in college. They could be given provisional registration while they worked through some of these training programmes. Modern ways of teaching also allow you to train those with very low literacy skills. It is worth remembering that some of the very high-standard care assistants in the system providing care in people’s homes often have low levels of literacy, so they need to be taught using modern techniques. This will allow that to happen. As for tracking their attendance, with electronic records it becomes quite easy to monitor what they turned up for and how they performed and to assess them in the tasks that need to be undertaken.
This amendment seems to meet all the criticisms that the Government laid at the door of previous amendments. I hope that it will get a better reception than its predecessors.
Baroness Cumberlege
As a fellow of the Royal College of Nursing and the Royal College of Midwives, I very much regret that I have been unable to take part in the previous debates initiated by the noble Baroness, Lady Emerton. I regret that for many reasons, not least because I had the privilege of introducing the noble Baroness into your Lordships’ House, and what a good thing that was. The noble Baroness is a truly remarkable person. I am not at all surprised that she has crafted this very clever amendment, as the noble Baroness, Lady Finlay, said. I know that the noble Baroness, Lady Emerton, recognises that statutory regulation will not always prevent abuse. Indeed, the chief executive of the Council for Healthcare Regulatory Excellence told your Lordships at a seminar that the regulator is never in the room when abuse occurs.
I understand that the noble Baroness is calling not for regulation but for a voluntary register assured by the CHRE. People will get admittance to the register provided they have attended an assured training programme. The training programme is to be mandatory for all new healthcare support workers from 1 April 2013. I understand that that is where the Government have something of a problem because of the numbers and costs involved, as the noble Lord, Lord Patel, said.
However, is it not right that good employers should pay the registration fee and have some element of discrimination in deciding who they recruit to a job? The question asked by the noble Lord, Lord MacKenzie, was very apt. My noble friend’s answer to it will be very interesting. If individual support workers have to pay the registration fee themselves, it could be seen as a tax on work for people mostly on the minimum wage, and there is an issue about that. It will probably increase the cost of employment, and this is a market in which retail, part-time working and motherhood compete, so we have to be careful.
On Report, the noble Lords, Lord Turnberg and Lord MacKenzie of Culkein, referred to the history of state enrolled nurses. Unlike registered nurses, they were said to be used and abused. I remember that because I served with the noble Baroness, Lady Emerton, on the United Kingdom Central Council for Nursing, Midwifery and Health Visiting where, over time, we phased out state enrolled nurses. They have been replaced to some extent by healthcare support workers, and we are facing almost the same issues again.
In the previous debate, my noble friend Lord Newton and the noble Lord, Lord Hunt of Kings Heath, were very kind to mention my role in nurse prescribing. I am delighted to see the noble Baroness, Lady Jay, in her place. I remember the day when we rejoiced in the fact that nurse prescribing had gone another step on the way. It took me 26 years to get that to happen—a very long time indeed—and we are not quite there yet. It seemed to me that nurse prescribing was extremely obvious. In the light of today’s debate on risk and risk registers, it probably would have been seen as a very high risk, but it has not proved to be so—but we are not there yet. I am very much hoping that, with the help of my noble friend Lord Henley and the Home Office, the last piece of this jigsaw will be put into place.
We started very small with nurse prescribing. We started with Bolton. The whole of Bolton took on nurse prescribing. In some parts of the country, the fight was enormous. GPs saw prescribing as their territory, and they did not want nurses to step into it. We managed to achieve it, and one of my real worries is that if we have support workers who, as the noble Baroness told us in the previous debate, are administering some very serious drugs, the work that I have done will be diminished because people will then think that nurse prescribing can be done by anybody with sufficient training, and that is dangerous. It is wrong for patients, and it is wrong for support workers who have perhaps been told that they have to administer these drugs.
Lord Hunt of Kings Heath
My Lords, the noble Baronesses, Lady Cumberlege and Lady Emerton, and other noble Lords who have spoken have argued pretty persuasively for statutory regulation. I think it is a pity that the noble Baroness, Lady Emerton, did not put her amendment to the vote on Report because there is a great deal of support in this House and outside it for statutory regulation. I do not know whether the Minister will accept this amendment, but if the noble Baroness wishes to put it to the vote, we shall support it.
If we look at the first part of the amendment, as I understand it the Minister gave an assurance on Report that the Council for Healthcare Regulatory Excellence would provide some assurance to voluntary registers. If the council is prepared to undertake the work to provide some assurance for voluntary registers, I cannot see why it could not have done that for statutory regulation. I have yet to hear one argument by that body or anyone else about why there should not be statutory regulation on this.
I note that the assured training programme is to be mandatory. It is all very well to say that it is mandatory to attend a training programme, but I would rather like to hear that someone has passed some kind of examination and achieved a qualification rather than that they merely turned up and got ticked in—although we know about being ticked in in your Lordships’ House.
On proposed new subsection (3) in the amendment, my reading is that this will not cover nursing homes. The noble Baroness, Lady Masham, expressed concern that a nurse may be struck off the register of qualified nurses but turn up at a nursing home the next day. However, my reading of this subsection is that it relates only to the care of NHS patients. Clearly, there are large parts of the care market to which this does not apply, and the most vulnerable part of care is healthcare assistants working in the independent sector without much supervision.
On proposed subsection (4), the disappointment is that the noble Earl said that the Government would agree to review this after, I think, three years. That would take us to 2015. We know that it would take two or three years to establish statutory regulation, so we are talking about five or six years from now, according to this amendment, when we would achieve statutory regulation. I am sure that that is the journey that we are on; I am disappointed that it will take so long to get there.
Earl Howe
My Lords, we have already had considerable debate on standards and training for healthcare support workers at both Committee and Report stages and I have set out the Government’s view that compulsory statutory regulation is not the only way to achieve high quality care.
We have made it clear that we recognise the need to drive up standards for support workers and to facilitate employers to appropriately employ, delegate to, and supervise health and social care support workers. We have listened to the concerns raised in this House and we have already taken action in a number of areas. We have recognised the concerns about the need for common standards for all those delivering personal care. I believe the steps we are taking will help increasingly to professionalise this set of workers, and ensure that healthcare support workers strive to achieve the best standards of skills to enable them to do their work more effectively.
We have therefore commissioned Skills for Health and Skills for Care to work together to develop a code of conduct and minimum induction and training standards for those support workers working in support of nurses and for adult social care workers. We fully expect this code to make crystal clear the primacy of patient safety, and how support workers must flag concerns to their supervisors. It would also be relevant both to employees and to employers. These will be developed by September 2012, with a view to enabling them to be adopted as the standards for an assured voluntary register from 2013 onwards. They will, for the first time, set a clear national benchmark around the training and conduct of support workers.
In taking that work forward, we expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, and the standards will link to the Nursing and Midwifery Council’s updated guidance on delegation. We have also said that we will ensure that the delivery of training for healthcare assistants who are entitled to be included on a voluntary register is professionally led. Further, we remain committed to exploring the evidence base relating to ratios of qualified to non-qualified staff, and we will look carefully at the evidence from ongoing work by King’s College.
Our proposals stop short of imposing mandatory requirements on employers, as it is our view that assured voluntary registration, underpinned by the Care Quality Commission’s registration requirements, is likely to be adequate to assure standards. However, we recognise that there are concerns that voluntary registration may not be adequate and therefore, once a system of assured voluntary registration has been operational for three years, we will commission a strategic review of the relative benefits of assured voluntary registration, compared with statutory registration.
The noble Lord, Lord MacKenzie, asked me whether employers would be able to require workers to be on registers. The answer is most certainly, yes. There are already precedents where employers require, for example, clinical perfusionists or non-medical public health specialists to be on voluntary registers, so we do not see this as a problem.
Turning specifically to the purpose of the amendment, to require mandatory assured training for all new healthcare support workers by 2013, I view that as a big-bang approach—if I may put it in those terms—and I have considerable anxiety that it carries a real risk of overwhelming the system in terms of allowing time for an assured training programme to be developed and implemented. Furthermore, I need to bring to the House’s attention that the introduction of mandatory training would have a significant cost impact on employers across a short period.
The department commissioned an independent analysis of the costs and benefits of regulating around 250,000 domiciliary care workers in 2009. This work indicated that, with a requirement that all workers would have to achieve an NVQ level 2 over two years, or have made good progress towards doing so, the costs would be in the region of £435 million over 10 years. The costs of registration, which would have been met by workers, were only around £70 million over 10 years, with the remaining £360 million or so primarily relating to the costs of providing training, which would primarily have fallen to employers.
Therefore, there are good reasons why we cannot just commit to introducing mandatory training in the current difficult public spending environment, without a clear evidence base for doing so. However, that is where the review comes in. I can confirm that we will consider whether there is a case for mandating training as part of that review, and an appropriate timetable if it were to be introduced.
Allowing for a three-year period once such voluntary registers have been quality-assured by the Professional Standards Authority for Health and Social Care is important. The size and complexity of the workforce we are discussing has already been recognised in our earlier debates. Therefore, in order to ensure that the review is fair and evidence-based, we need to allow an appropriate time period for the assured registers to operate and three years from Royal Assent may not allow sufficient time, for the reasons that the noble Lord, Lord Hunt, alluded to, given that it may take some time to get to a point where a register is properly established.
The scope of this amendment is only healthcare support workers, and I understand the reasons why the noble Baroness has raised it in such limited terms. However, as the noble Baroness, Lady Howarth of Breckland, recognised in our last debate on this matter, the care workforce is significantly wider than that of healthcare support workers. Our proposals recognise this and include provision for common core training and a common basis for a code of conduct.
I know the noble Baroness would like us to go further. However, the review to which I have already committed will provide us with a clear evidence base for any further measures needed to assure the standards of healthcare support workers and we will then consider the need for further measures in light of that review. In view of the proposed review and the ongoing role of the Professional Standards Authority in monitoring voluntary registers, I do not see the need to go any further in terms of rolling out the programme with pilots or some such, but we are more than willing to maintain a dialogue with noble Lords and the profession on what is clearly an important issue.
I also listened to the noble Baroness’s point about the importance of staffing ratios, particularly with regard to midwives, and I can confirm that we will keep these issues under close consideration.
I hope the noble Baroness will be at least partially reassured—maybe substantially reassured—about the general direction of travel here and of our commitment to strengthening the assurance processes in place for healthcare support workers and that, as a consequence, she will feel able to withdraw her amendment at this point.
Baroness Emerton
I thank the noble Earl for that summary, and I thank noble Lords who have taken part in this short debate.
It seems as though we have been discussing this very real issue for months. We have spent the afternoon talking about risks and my concern has always been that the result of not providing training and support to support workers is a risk to patient care— and we will be taking a real risk if we have to wait the length of time proposed by the Minister. Work is going on at the moment in preparing the voluntary register, which will be ready in 2012, and I would have thought it would have been possible for the Government to say that from thereon they would expect candidates who are taken on to enter that training.
The public, patients and professions need an assurance that the risk at which we are placing patients is being addressed. The Minister has set out a timetable, but it is a very long timetable for patients who are receiving care today and tomorrow. They are at risk unless there is a registered nurse who is able to assess the competencies and support workers who are competent to deliver.
I appreciate what the noble Earl has said and the situation that we are in—I said in my speech that we have to be aware of the economic situation—and that we have to be assured that whatever we do is of benefit to patients and is cost-effective. However, I am not sure that we will be doing that by accepting the proposed timetable and I would like to test the opinion of the House.
“(4) In subsection (4)—
(a) for “a Primary Care Trust” substitute “a clinical commissioning group”, (b) for “the trust” substitute “the group”, and(c) at the end insert “; and the references in this subsection to a clinical commissioning group are, so far as necessary for the purposes of regulations under subsection (2E) of that section, to be read as references to the Board.”.”
“(2) In subsections (6A) and (6B)—
(a) after “by a” insert “clinical commissioning group or”, and(b) omit “Primary Care Trust or”.(3) After subsection (6B), insert—
“(6C) The references in subsections (6A) and (6B) to a clinical commissioning group are, so far as necessary for the purposes of regulations under section 117(2E) of the Mental Health Act 1983, to be read as references to the National Health Service Commissioning Board.””
Lord Dubs
My Lords, I shall speak very briefly as the House wants to move to a vote. I support this amendment and would like to pay a tribute to my noble friend Lady Thornton for the work that she and her team have put into this. Without the backing of a government department, they have performed heroically and very effectively.
I want to give only one personal reminiscence. The National Health Service started on 5 July 1948. I was a child in hospital on that today; I was quite ill in Stockport Royal Infirmary. The consultant and his team came; in those days one either had to stand to attention or lie to attention when the consultant came with the matron and the team of junior doctors. Momentarily, he stopped at the foot of my bed and I said, “Are we going to celebrate? Are we having a party?”. He asked, “What are you talking about”? I was the only child in the ward, so it was cheeky of me but I said, “Well, the hospital is ours today—isn’t it wonderful?”. He walked on without saying anything, but it was a momentous day and I never thought that, 64 years later, I would be here at Westminster and lamenting what has happened to our beloved National Health Service. Let me conclude by quoting Nye Bevan, who said,
“The NHS will last as long as there are folk … with the faith to fight for it”.
Baroness Finlay of Llandaff
My Lords, it is with a very heavy heart that I feel I must stand up and record that many of the voices outside, who are very scared about this Bill and what it means, are people who are of no particular political persuasion. Yet they are worried about the problem of lack of financial transparency, about the number of private healthcare companies incorporated in offshore jurisdictions—which they see may evade taxes of various types—and about the commissioning process. They are also concerned that the use of public money in the healthcare system will slowly be obscured like a great iceberg wrapped in fog. They will work to deliver whatever is needed for the patients in front of them. The vast majority of them stand to gain nothing by this Bill passing, but to gain nothing either if it does not pass. They want to improve the standards for their patients, and indeed they argue for change.
The noble Earl has worked tirelessly and has confidence across the whole House. Everybody, however much they have been concerned about this Bill, owes him an enormous debt of gratitude for the way that he has listened to every single one of us, at all times of the day and night, and weekends and so on. But we should not let this Bill pass without recognising the enormous concerns there are outside this House among those who will be delivering healthcare, now and into the future, in whatever form it takes.
Lord Greaves
My Lords, this has been an extraordinary parliamentary process. When this Bill was introduced, I said at Second Reading that it was a bad Bill. It was a bad Bill when it came here; there has been a growing tide of opposition to it and concern throughout the process while it was in the Commons and the Lords. There was the pause in the Commons and the Future Forum, which resulted in a large number of changes, and at that time Nick Clegg said that no Bill is better than a bad Bill. What we all individually have to do now—I speak very much for myself and not my party—is to assess whether it has now moved over from being a bad Bill to perhaps being, as Nick Clegg said last week, a much better Bill.
There is no doubt at all that on a spectrum of bad to good, it has shifted very considerably. It shifted in the Commons; it shifted far more here in the House of Lords. I believe that the process in your Lordships’ House has been the House of Lords at its best. This House can be proud of the work that it has done throughout the gruelling Committee stage, then during Report and again today. I regret that I could not take a detailed part in much of that, because I was then spending time as a patient of the NHS, but I have been watching it all and I believe that the work this House has done has been absolutely superb.
If I can make a party political point here for a moment, the work that our team has done on the Bill, led by my noble friend Lady Jolly with all my other noble friends who have taken part, has contributed well. I refer not only to the Liberal Democrats but to Cross Benchers and everybody around the House. Tribute has been paid to the Minister. I pay particular tribute as a Liberal Democrat to our person on the ministerial team, my noble friend Lady Northover, who from our point of view has played a very important part by being a link into the Government and getting many of the changes which have taken place.
It is about not just the changes to the Bill but the implementation—the work that starts after this Bill has been passed, as no doubt it will be today. A huge number of ministerial assurances have been made, which may or may not be put upon people’s bedroom walls as the noble Baroness, Lady Cumberlege, wants to do with hers. Nevertheless, this is a Bill which has had more outside scrutiny and involvement from people out there, as far as the House of Lords is concerned, than any other Bill I can remember in 12 years in your Lordships’ House. That will continue with the implementation, and it is absolutely crucial how the Government now implement this Bill. Will it be gung-ho privatisation, which is what people were very frightened of when the Bill was first introduced and many are still frightened about, or will it be implemented in a cautious and careful way to allow the health service to breathe and to cope with the changes? This will be absolutely crucial, and we will know the answer to that in a year or two’s time.
The noble Earl, Lord Howe, said that we have had debates of unparalleled length and scope, and that is true. However, as I have just said, the public interest and lobbying on this from outside has been unprecedented. One of the lessons that we all have to learn is that we—whether the House of Lords, members of the Government or our party—have not coped with that very well. I do not think that the Opposition coped with it terribly well either because, even this morning, I was getting e-mails telling me what the Bill did, some of which was absolutely untrue. They were still telling me that the Bill removes the duty on the Secretary of State to provide health services. We are still getting that, and the amount of education or information which goes out from debates within this Chamber to the outside world is pretty poor.
Several people have said, “We have been trying to follow this Bill. We have been trying to follow your Marshalled Lists, having discovered where to find them on the internet. We have been trying to follow the parliament channel, and we haven’t understood a word of it. It is interesting, but we can’t understand it”. I have to tell them that that applies to quite a lot of Members of your Lordships’ House while the Bill is going through.
Lord Winston
Could the noble Lord tell us whether he intends to vote for or against the amendment?
Lord Greaves
I am coming to that. So having said all this, why am I going to vote for the amendment moved by the noble Baroness, Lady Thornton? I will do so very unhappily because I do not like voting against my noble friends, particularly when they have done so much hard work and achieved so much. I do not like voting against the party anyway but, having looked at it, it seems to me that the safeguards which have been achieved are not sufficient. Having read the latest version of the Bill which we got at Third Reading, I think it is inevitable that this Bill will lead to greater commercialisation. It will lead to a greater emphasis on competition rather than integration, and to a continuing incursion of private sector-based companies into the provision of NHS services. It is undoubtedly a radical top-down restructuring, in direct contradiction of the coalition agreement that I signed up to. That is being imposed on the health service at the same time as it is struggling with the biggest financial problems that it has had for many years. This is all in the face of the overwhelming opposition of NHS staff, professional groups, patient groups, public opinion and, indeed, a majority of people in my own party and of people who vote for us.
I believe that the new structures at local level will be no less bureaucratic, less open and accountable—
Lord Greaves
I am just saying what I think, and I have a right to do that. I believe that my party is being extremely brave in supporting this Bill as it now exists. I also believe that my party has had a bit too much of being extremely brave in recent times, but nevertheless, it is. I voted against this Bill at Second Reading; I will do so again now in favour of this amendment.
Now I feel very much like little Johnny, marching along, and all the rest of my party are out of step. I think that I am in step, and I think very hard indeed about this. Your Lordships’ House as a whole, and the Government, are the people out of step—certainly out of step with opinion in the country and in the health service. However, I agree entirely with what the noble Baroness, Lady Thornton, said, about what now matters if the Bill is passed—[Interruption.] I do not know whose phone that is; it is not mine. That is someone who is out of step.
There has been a lot of alarmist talk. It probably will not amount to much, but it is up to everyone in the health service, and to us here as we scrutinise the regulations, to ensure that it does not. I am frightened by this Bill and I shall vote against it.
Baroness Butler-Sloss
My Lords, I have not yet spoken on this Bill. Could I ask the Minister a very practical question? If the amendment of the noble Baroness, Lady Thornton, is passed, what on earth will happen to this Bill? What I understand might happen is that in due course it would be passed by the Commons but without the amendments of this House. The result of that would mean that the enormous amount of work done by everybody in this House to improve this Bill would be totally lost, and the Bill as it left the Commons would be the same Bill that went through it. Is that what we want?
Earl Howe
My Lords, the noble Baroness, Lady Thornton, made some very complimentary comments about me at the beginning of her remarks and I thank her for those. Therefore, it is a cause for sadness to me that we have reached this final stage of the Bill in a climate of antagonism rather than of the mutual good will that typically characterises the end of a long parliamentary process in this House. That good will is still present, but it has perhaps been temporarily overshadowed.
I am sorry that the noble Baroness, for whom I have enormous respect, has taken the unusual step of tabling this Motion. It will not surprise her to hear that I disagree utterly with her summary of what this Bill will achieve, but it is not my intention to rehearse the arguments for it all over again. I did that at Second Reading and throughout subsequent stages of the Bill, when we debated at length and in depth the detailed provisions within it.
It is disappointing, too, that this Motion, so negative in its tone and content, is the only amendment which the Official Opposition have seen fit to table on our final day of debate. It stands in marked contrast to the highly constructive approach taken to Third Reading by Peers on all Benches, and indeed to the approach of thoughtful testing and challenge to the Government which the Labour Front Bench has adopted hitherto. I believe that we have used today’s Third Reading to good and positive effect. The noble Baroness, on the other hand, has chosen today to stand aside from that approach.
Baroness Thornton
My Lords, the time has come for a vote on this matter. I add my own thanks to all noble Lords for the work that they have done on the Bill. I pay tribute to the huge efforts that have been made and the commitment that noble Lords show to doing their job as legislators. I thank my own support on the Front Bench, my noble friends Lord Hunt, Lord Beecham, Lord Collins and Lady Wheeler. I could not have been better supported.
Unlike the Minister with a cast of thousands, I have had a small but perfectly formed team of about three, led by Jessica Levy in the opposition office and with my intern Tom Woodford keeping my papers in good order. However, we on these Benches have also been supported and sustained in our consideration of the Bill by literally thousands of people across the country. I say to the noble and learned Baroness, Lady Butler-Sloss, that it is actually up to the Government what they do about the Bill if they lose this vote.
Perhaps the Minister might agree that this parallel universe that we inhabit in your Lordships’ House, where deals are done and amendments are crafted, is hardly the same as the real world for those who will now manage commissioning, make budget cuts, deploy staff, recruit accountants and try to make sense of the competition and integration strategies and to make the Bill work. I pay tribute to those people.
I feel like saying to noble Lords, “Hands up those who have received letters and e-mails supporting this Bill”. I had two, among a torrent of e-mails, tweets, texts and letters asking us to drop the Bill or dramatically change parts of it. We have received thousands of expressions of concern. Noble Lords have reacted variously to that, and I think that the noble Lord, Lord Greaves, is right to say that in some respects parties have reacted well to this but not in others. It is clear that there are thousands if not hundreds of thousands of people watching us and what we do, and it is for those people—the nurses, the doctors, the healthcare assistants, the patients, my mum with her COPD, my cousin whose daughter has just been diagnosed with a brain tumour, and the hundreds of thousands of people who have signed petitions, sent letters, gone on demonstrations and continue to make our beloved NHS work—that I wish to test the opinion of the House.
International Development: Sanitation and Water
The Lord Bishop of Bath and Wells
To ask Her Majesty’s Government what steps they are taking to enhance access to proper sanitation and safe water in developing countries.
The Lord Bishop of Bath and Wells
My Lords, I am grateful for the opportunity to open this debate, and I thank noble Lords who are willing to take part after what has been a full day.
There will no doubt be some amusement that a contribution such as this is being made by the Bishop of Bath and Wells—the name involves two receptacles intimately associated with water. However, I am not the first holder of this office to be so concerned. Bishop Bekynton is remembered and commemorated for his contribution to the health and welfare of the citizens of Wells during the 15th century. Bekynton made a grant to construct the conduit by which the city would receive its water supply from the Well of St. Andrew in the grounds of the bishop’s palace. However, the condition upon which such benefaction was made was that the citizens and burgesses bound themselves in return to visit once every year the spot in the cathedral where Bekynton was to be interred and there pray for his soul, for which the same prelate granted them an indulgence of 40 days from purgatory. Bekynton is still commemorated, and the people of Wells remain healthy, although regrettably the water from the well is no longer safe to drink, and indulgences are no longer a part of my privilege as the Bishop of Bath and Wells.
In opening this debate, I declare an interest as an ambassador for WaterAid. More widely, in my time as director of an international mission and development agency, I have seen the effect that the provision of clean water and sanitation has, not only on individuals and communities but upon economies, healthcare and education.
Today’s debate has been called as a response to the sanitation and water crises in the developing world, and it could not be more timely. Not only will it be World Water Day on Thursday, but we are just one month away from a vital meeting to push forward progress on tackling the water and sanitation crisis—the Sanitation and Water for All high-level meeting.
Water and sanitation poverty is one of the greatest and most neglected crises in international development. It is undermining the collective efforts of the international community to achieve the millennium development goals. Diarrhoeal disease is, according to the World Health Organisation, the biggest killer of children in Africa. Ninety per cent of cases are caused by the lack of access to clean water and sanitation. Diarrhoea causes more child deaths than AIDS, malaria and TB combined and, as the latest United Nations report on water and sanitation indicates, the majority of these child deaths are in south Asia.
It is entirely unacceptable in the 21st century that international development efforts are still held back because of a lack of access to clean water and sanitation. Regrettably, the United Kingdom’s record on development is being weakened by the lack of concerted international action on water and sanitation. Put simply, there can be only limited benefits from focusing on giving children life-saving medicines without ensuring that the water with which they drink those pills is safe and free from human faecal matter.
Likewise, the international community’s emphasis on girls going to school is to be welcomed. However, when so many are held back from attending school by the hours spent fetching water, our collective efforts and financial contributions are being undermined. If girls are to stay in school when they reach menstrual age, it is essential that there are adequate toilet facilities when they get to school.
As our own history of public health shows, safe water and sanitation are essential not only for reducing the preventable deaths of young children but are essential services critical to public health, welfare and the productivity of all. The British Medical Association voted the commission of the London sewerage system as the most important breakthrough ever in public health—more important than penicillin or vaccines.
However, the benefits go beyond health. Diarrhoea is believed to cost Africa up to 5 per cent of its gross domestic product annually. The United Nations estimates that, on average, $1 spent on water and sanitation generates $8 in return. Earlier this month, the United Nations announced that the millennium development goal target for water had been met, five years ahead of schedule. Two billion more people now have access to water than in 1990. That is a welcome and significant achievement, and it demonstrates what can be done when the willingness is there. It shows that aid can and does work. Success in meeting the water millennium development goal target is self-evidently transformative. It happens when political leadership is combined with sustained investment.
Sadly, those gains have not been made equally across the world. I do not need to remind your Lordships that water, sanitation and hygiene are recognised by the United Nations as human rights fundamental to life and dignity, yet 780 million people are still without access, the majority of them are the poorest in society and four in 10 live in sub-Saharan Africa. Sustainability is essential. Access to safe water needs to be complemented with access to sanitation. Without adequate toilets, human waste will pollute water sources.
Both former and present Governments have good reason to point to our successes in delivering water to the poorest people and the saving of lives. Eight of the top 10 recipients of aid for water provided by the UK are on track to meet the millennium development goals or have already met them. Having met the water target, we need to complement our efforts on water by making and keeping it safe and clean. That requires investment in sanitation. That is particularly critical at a time of rapid urbanisation when the growth of the world's population is largely in urban slums. On current estimates, more than 500 million people will suffer through the failure to meet the sanitation millennium development goal. It is said that in Africa universal access to sanitation is still more than 250 years away.
The Secretary of State is to be commended for leading the world through his commitment to attend the Sanitation and Water for All partnership high-level meeting in Washington next month. He was the first donor Minister to do so, and our hopes are high for both attendance and outcomes from that crucial meeting. Our Government are further to be commended for their commitment to 0.7 per cent of annual income to be spent on aid, but overall, aid for water and sanitation has declined in proportion to the aid for other sectors. Where it stood at more than 8 per cent of total aid in the mid-1990s, it has now fallen to below 5.5 per cent. Globally, there is a huge shortfall in funding for the crisis.
I regret that the picture is less healthy when we look at the United Kingdom’s contribution. The UK’s bilateral aid to the sector was less than 2 per cent of our total aid in 2010, and the proportion of UK bilateral aid that goes to water and sanitation programmes is less than 50 per cent of the average reported by other donors. Although the Secretary of State himself is showing great personal leadership on the issue, the UK’s financial contribution on water and sanitation is not keeping pace with other donors and, more importantly, not rising to the scale of the crisis.
Is there an imbalance here that needs to be corrected? There is no sense in a government strategy which invests in girls’ education without investing in the removal of barriers to their attendance. Surely the Government must consider the drawbacks of investing resources in medicine without ensuring that the water taken with those medicines is clean and free from human faecal matter. DfID’s water, sanitation and hygiene programme is fantastic value for money, but we must step up the volume in line with the quality of our aid if we want results across health, women's livelihoods, education and nutrition.
I dare to hope that this debate today may have something of the same effect on the world’s population, to its benefit, as Bishop Bekynton did for the people of Wells in the 15th century. While I cannot offer indulgences, I crave your Lordships’ in support of the Question on enhancing access to proper sanitation and safe water in developing countries.
Baroness Jenkin of Kennington
My Lords, like many other noble Lords, while preparing for this debate I thought about water every time I turned on a tap, filled a kettle, flushed the loo, ran a bath or a shower: simple things that we all do every day without thinking about it. Tomorrow, however, and perhaps the day after, we will all go back to taking for granted the miracle that is fresh, clean running water.
We owe the right reverend Prelate thanks for initiating this debate and for reminding us of our luck. In 1880, when we here in Britain revolutionised the infrastructure of water and sanitation, life expectancy for the average Briton rose by 15 years. Working towards improved sanitation for the billions of people currently without it will lead to similar improvements across the world.
In the last 20 years, between 1990 and 2010, over 2 billion people gained access to improved water sources and 1.8 billion people gained access to improved sanitation facilities. Globally, though, 783 million people—11 per cent of the world's population—are still without safe drinking water and 2.5 billion without sanitation, so, as the right reverend Prelate said, there is still much to do.
Water and sanitation are rightly high on the aid agenda. I am delighted that the UK and DfID are leading the way by showing commitment to ensuring that clean water and sanitation get to more people globally than in the whole of the UK. As the right reverend Prelate said, we welcome the Secretary of State’s decision to attend the high-level meeting on sanitation and water in Washington this April.
It is important, however, to note that progress is not just about access to clean drinking water. Hygienic toilets, education in sanitation, and effective hand washing really do save lives. Anyone who works for a water charity will tell you that access to water is not about stopping dehydration; it builds communities. By building a latrine and sanitation block in a school, attendance, particularly for girls, can double. When Wells for India, a UK-based charity, builds such facilities it always give preference to girls to attend the school, because by lifting barriers that keep girls out of school they are given a real chance to take control of their lives, from reproductive choices to education and economic control. For example, girls are far more likely to attend school when there are private and safe facilities for adolescent girls during menstruation. The availability of sanitation services at school can directly impact the drop-out rate of girls from full-time education. By increasing these amenities, we can dramatically improve the opportunities for these young girls.
Women are helped in a multitude of ways by increased access to water and sanitation. For example, going to the toilet in the open puts them in danger of being assaulted. In Bhopal, WaterAid has spoken to women who forgo food and drink during the day to avoid needing to defecate in the open in daylight. By waiting until nightfall they then place themselves at greater risk of sexual violence.
Water aid charities rightly focus on new technology for harvesting water. From gully plugs to loose stone dams and trenches, there are lots of cheap ways to harvest water. Even turning a flat roof on a house—such a common feature—into a pipe for siphoning rainwater into a tank makes the type of difference we can hardly imagine.
Poor families in sub-Saharan Africa spend around 11 per cent of their income on water. Money donated to increase access to water is extremely cost-effective—£385 can build a sanitation block for 150 people. Donating the materials to turn open-water wells—in which the water is likely to become infected—into closed, pump-using wells is astonishingly cheap; again, a small act which makes a huge difference.
Just this afternoon, I bumped into someone who told me about the role of crushed seeds of the moringa tree in clarifying and purifying water to make it safe for drinking and to suit domestic use. I rushed to my desk to investigate this magic seed further. One billion people across Asia, Africa, and Latin America are estimated to rely on untreated surface water sources for their daily water needs. Of these, some 2 million are thought to die from diseases caught from contaminated water every year, with the majority of these deaths occurring among children under five years of age.
Moringa oleifera is a vegetable tree grown in Africa, Central America, South America, the Indian subcontinent, and south-east Asia. It could be considered to be one of the world’s most useful trees. Not only is it drought resistant, it also yields cooking and lighting oil and soil fertilizer, as well as highly nutritious food in the form of its pods, leaves, seeds and flowers. However, perhaps most importantly, its seeds can be used to purify drinking water at virtually no cost. Moringa tree seeds, when crushed into powder, can be used as a water-soluble extract in suspension, resulting in an effective natural clarification agent for highly turbid and untreated pathogenic surface water—dirty river water to me. As well as improving drinkability, this technique reduces water turbidity—or cloudiness—making the result aesthetically, as well as microbiologically, more acceptable for human consumption, removing between 90 and 99 per cent of bacteria. Despite its life-saving potential, the technique is not widely known, even in areas where the moringa is routinely cultivated.
North Africa, which comprises 20 per cent of all land in Africa, receives less than a third of the continent’s total annual rainfall—an extremely small and unpredictable amount. For a continent that is so highly dependent on rain-fed agriculture, it is important not only to harvest as much rain as possible but to be able to predict when this rain will fall. In the UK there are 4,400 weather stations, at a rate of one per seven square kilometres. By comparison, in the whole of Africa there are 1,152 weather stations—roughly one per 26,000 square kilometres. In a continent where rainfall is so variable, it is impossible for farmers to know simple things, such as when to water their crops. Understanding rain dynamics, from daily to monthly scales, would strengthen early warning systems and help people such as subsistence farmers to make informed decisions on matters such as crop planting and storage.
I thank the right reverend Prelate for securing this important debate. Although I welcome the significant progress that has been made, like the right reverend Prelate, I believe it is imperative to stress that reaching the sanitation goal is still some way off. The fact that DfID is now putting such emphasis on water and sanitation is much to be welcomed and I hope that its work continues to go from strength to strength.
Lord McConnell of Glenscorrodale
My Lords, 50 years ago this year, my parents moved to a farm in a very remote part of the Isle of Arran to build a business and grow a family. Although they had no mains electricity or water, they benefited from access to clean water in the hills and had the use of a septic tank and an electric generator. Partly as a result of that and partly due to their own skills and hard work, they developed an award-winning farm, as well as an award-winning team on the farm. I have always been very grateful that as a youngster I was able to grow up in such a beautiful place with access to clean water and sanitation.
Over the years as I have got older, I have become more and more angry that in a world where we talk about finding water on other planets and other such amazing developments, hundreds of millions of people all over the world today still do not have the access to clean water and sanitation that I enjoyed as a youngster. Indeed, the relevant millennium development goal, MDG 7, is unlikely to be reached. It is claimed that it may be reached and may already have been reached in relation to water, although I think that that claim may be made by the donor community rather than by those who are in need and who use the water, but on current predictions it will certainly not be reached in relation to sanitation. That is a tragedy in many respects, and I am very grateful to the right reverend Prelate the Bishop of Bath and Wells for drawing our attention to this matter this evening. I am also grateful to him and to the noble Baroness, Lady Jenkin, for their wide-ranging, intelligent speeches on the issues, and I want to add to, rather than duplicate, what they have said.
I agree entirely that this matter is central to the issue that many people all over the world talk about—girls in education. Sanitation is fundamental, particularly for those of teenage years. It can also be central as a cause of conflict. As with other natural resources, access to water can be a cause of long-lasting or occasional conflict, and it contributes directly to matters of hygiene and disease. The outcomes are entirely preventable, as we know here in London and as has already been mentioned by previous speakers. Critically, access, or the lack of access, to water and sanitation is an issue of productivity too. If we genuinely believe in sustainable development, access to water and sanitation has to be central to our development strategies, but also to the strategies employed within communities in the developing world.
It will simply not be possible to build sustainable, productive economies in situations where so many, particularly women and girls, spend so much time trying to access water or are affected by the diseases and conditions that result from a lack of access to safe water. A few years ago, it was estimated by the UNDP—it is almost certainly still relevant—that 40 billion hours of labour are lost in sub-Saharan Africa every year as a result of the time taken to access safe water and to bring it back to the family home or community. That is equivalent to a total year’s labour by everyone in the workforce of France. That is how much is lost every year by the simple day-to-day duty of travelling to safe water—sometimes it is not safe—and travelling back home again.
That lack of productivity, which impacts on the local economy, on families and on community development, is central to this issue. Although I certainly welcome the efforts that have been made over the years, given the impact that those efforts have had on the number of water pumps, the development of sanitation programmes, and the other crucial elements in the international strategy to tackle this issue and to try to reach that millennium development goal, we sometimes have to question the outcome. I do not think it is good enough for those who pay for this development strategy to claim that, as we have introduced a number of pumps or a number of sanitation programmes, which affect a number of people in different parts of the world, we have achieved our goals.
If those pumps are not in use and if the local communities are not able to maintain them because the skills are not there, the capacity is not in place and the pumps are useless. I suspect that if the true figures were known and the numbers calculated by those in need, the number of people who actually have access to safe water in the world today would be significantly less than that estimated by the donor community. We need to look at this from the perspective of those who use the water rather than from those of us who have been paying for it over the past few decades.
I urge the department, the Government and our international partners to think more deeply about the strategies that we can employ to put control of this issue in the hands of local communities. We need to train local people in the necessary skills to make water and sanitation developments sustainable so that they do not need to hire engineers from 200 miles away, who take six months to get there when the pump is out of use. They should not have to wait months and sometimes even years for pumps to be repaired. Training local communities and creating the infrastructure and the capacity in local government and local businesses, with systems of payment for repair, would help to regenerate local economies and ensure that the pumps are kept in regular use. If we do that, perhaps some day we will not only reach the targets that we have set ourselves and the targets that we congratulate ourselves upon as we reach them, but we will reach the point at which, across the world, everyone has access not only to water pumps but to clean water.
Lord Chidgey
My Lords, I, too, congratulate the right reverend Prelate the Bishop of Bath and Wells. We have had very thoughtful contributions from the noble Baroness, Lady Jenkin, and the noble Lord, Lord McConnell. I hope to add to what they have said, based on a number of sources, not least my own experience.
I do not know whether any noble Lord saw a rather alarming headline in the Times of London a couple of weeks ago that said that, in India, more people have access to mobile phones than to clean water. That was meant to be quite shocking and of course it was. I started to think a little more about that and it occurred to me that one of the reasons for the mobile phone explosion was not just because people wanted phones but because they are easy to get. They provide a cash flow and a really good opportunity for investment and profit. The industry does not require large, expensive and hard to maintain infrastructure. It is a satellite issue, with nothing much on the ground. Now compare that with providing clean water and sanitation. You need a large, comprehensive network to provide water or to deal with sanitation. In countries such as India, that is not so easy. It is expensive and it is hard to maintain.
We are also dealing with the fact that the United Nations has already declared clean water and sanitation to be a human right, which tends to introduce a reluctance in the population and Governments to charge reasonable rates for their provision. It makes it a bit more difficult. There is also no alternative to a mobile phone. You cannot introduce a landline and set up telegraph poles. That does not work in continents such as India. There is, however, an alternative to ground water. It is not exactly attractive; it is going to be untreated—I am afraid to say that open-air defecation is still the traditional practice in much of India and other parts of the world—but it is a water supply. There is a reason why the expansion of clean water and sanitation cannot keep pace with the attractiveness of the mobile phone; indeed, the newspaper report is not quite as shock-horror as noble Lords might think.
Nevertheless, there has been progress. The millennium development goal target for halving the number of people without access to safe water was met in 2010, as we know. However, while we have concrete proof, as the Secretary of State has said, that well-spent aid makes a difference to the lives of the poorest people, we have heard from the right reverend Prelate the Bishop of Bath and Wells that more than 780 million are still without clean water.
I must just add a few words about sub-Saharan Africa to the points that have already been made. Sub-Saharan Africa in particular lags behind. Two-thirds of the global population without an improved water source can be found in just 10 countries, six of them in Africa. Of the 50 countries in sub-Saharan Africa, only 19 are on track to meet the millennium development goals by 2015. Indications from UNICEF’s latest alternative means of analysing progress, its joint monitoring programmes, throw up some sobering trends in what is actually happening, particularly the urban-rural disparities associated with poverty and the relationship between progress and rapid population growth over the last 20 years. Rapid population growth has resulted in it being quite easy to lose any gains that have been achieved, because the additional capacity that has been provided has been taken up. On this basis, nearly 900 million people in sub-Saharan African live in countries where only 25 per cent have access to clean water. That is a very long way from the 50 per cent assumed in the millennium development goals. We are clearly not going to get there by 2015.
Turning briefly to the MDG to improve access to sanitation to 50 per cent, currently more than 2.6 billion people do not have access to flush toilets. Over 1.1 billion people still defecate in the open, and the MDG report calculates that it would take until 2049 to provide more than 75 per cent of the global population with improved sanitation—the amount needed to meet the MDG target. The right reverend Prelate made the point that to get everyone on mains loos would take another 250 years. That is a startling figure.
Much of sub-Saharan Africa is lagging sadly and desperately behind. Nearly half of the population uses either shared or unimproved facilities, an estimated 25 per cent practise open defecation, a decrease of only 11 per cent since 1990. In fact, with population growth this means that the number of people practising open defecation has increased by 33 million since then. Sub-Saharan Africa has the highest proportion of people using unimproved sanitation of any region.
I will say a few words about capacity-building, as this is quite an important aspect of this issue. The countries lagging furthest behind the MDG targets on water and sanitation are those where capacity is poor. They are often conflict-affected states with weak institutions. In those countries, where political stability is also challenged, policy development and departmental roles and responsibilities are unclear. Accountability and transparency are weak and the provision of water and sanitation services does not figure high on the agenda for career advancement in civil service departments.
The right reverend Prelate called for clean water, medicine, and education for girls. I would add political stability and capacity to that list if we are going to underpin these essential requirements. We will not achieve them without that. Institutional strengthening and technical assistance are by no means as straightforward as they seem. In my experience, appointing counterpart engineers—to pick up a point made earlier—to work with local staff can easily be compromised when you are trying to manage a project for a client team that is used to working, for example, in a French administrative system in French with young engineers who have been trained in Russia in Russian and dealing with a donor from the Middle East who refuses to work in anything but English. It is quite a challenge. You achieve the project, but you do not achieve the training. That is why there is a real problem about capacity-building. If you ensure that people can take ownership of the facilities and feel that they are theirs rather than the donors’ or the experts’, they start to look after them and cherish what they have.
Lord Cameron of Dillington
My Lords, my intervention is slightly tangential to the main thrust of the right reverend Prelate’s Question, but I thank him very much for giving me the opportunity to make it. I want to talk about water as the source of food and possible conflict in the developing world. I realise that lack of access to proper sanitation and safe water kills about 1.5 million children every year, but I want to talk about the nearly 1 billion people who go to bed hungry every night and the other 1 billion who suffer from such a single staple diet that they lack the necessary vitamins and proteins to live properly active lives. It is worth noting that the worst effects of such chronic malnutrition are on children. Not having a proper diet in early years affects brain development. For instance, it is believed that during the food price hike in 2008, some 40 million kids in the developing world suffered permanent cognitive damage from food deprivation.
The connection between this and today’s debate on water is that irrigated agriculture provides 40 per cent of the world’s food from only 20 per cent of the world’s agricultural land. It is twice as productive as non-irrigated land, so in terms of feeding the world it is very important. For instance, 90 per cent of rice grown uses irrigation. By 2030, agriculture will need 45 per cent more water, and even by 2025 the UN reckons that 40 per cent of the world’s population will live in water scarce regions, which will include all of China and India. Indian farmers are already taking 100 cubic kilometres per annum more from their aquifers than are being replaced by rains, and the aquifer under the Hebei province of China, where most of its wheat is grown, is falling at the rate of three metres per annum.
There are two simple points I want to make. First, we have to help the developing world manage its water better and, secondly, we have to help nations get together and equitably share their transboundary water before more people die in conflicts caused by water, a commodity more valuable than all the precious metals in the world.
In terms of helping countries manage their water better, I want to focus on sub-Saharan Africa. It uses very little of its renewable water resources—less than 3 per cent, of which 2 per cent is used for agriculture, compared to many parts of Asia where it is over 40 per cent. So it is in Africa where the potential for improvement is greatest. Here, the problem is based more on economics and lack of knowledge than actual physical scarcity because the greatest poverty in Africa is a poverty of information, closely followed by a lack of responsible investment.
Here are a few ideas, whereby the UK and other donors can make a difference. We can help provide more cheap farm-based and community-based reservoirs for both agricultural and domestic use. Very often, that just involves a couple of days with a bulldozer. Smallholder farmers need the knowledge to manage their soils to make them receptive to rain, they need the knowledge and funding to have drip irrigation which does not waste the water and they need the funding for small, shared abstractions from aquifers. We in the UK can help with that seed-corn funding and the dissemination of knowledge.
Ground water provides reliable water to more than 100 million people in Africa, and is a resource of choice for developing rural water supplies. But these underground resources need to be defined by their location, quality, quantity and, above all, recharge rate, so that they can be managed sustainably for future generations. We need to avoid the problems of the overused aquifers in India and China. Again, I believe this is an area where we can help.
To endorse a point already made by the noble Baroness, Lady Jenkin, if a poor African smallholder buys modern seeds to produce three or four times the yield of her normal seeds, she is often risking all the family’s wealth to do so. Indeed, her family’s ability to survive could be on the line, because if she plants and there is no rain, she will get no crop and will be unable to feed her family. This terrifying risk, which can get only worse with climate change, is not helped by the fact that African farmers rarely get weather forecasts to allow them to make informed decisions about their farming practices. Again, we can help here, both in the production and communication of forecasts.
Turning to my second point, water can and almost certainly will cause conflicts over the next few decades. The trouble is that waters and rivers do not recognise political boundaries. The 10 nations now using the waters of the Nile are a good example of where things could go wrong. Turkey’s dams on the Tigris and Euphrates, rivers that are the lifeblood of Iraq and Syria, are another. The excessive abstraction by Israel from the River Jordan before it reaches the country of its name could inflame an already sensitive situation. There are some 250 other shared waterways throughout the world. The Indus, for example, is another sensitive spot.
There is a UN convention on the non-navigational uses of international watercourses, which sets out how nations should resolve their differences over shared waterways. It is only in this way that the management of transboundary fresh water will be equitably shared between the conflicting needs of the poor, the rich, the farmers, the towns, and the environment in both upstream and downstream countries. This convention, which was devised with the help of UK lawyers, needs 35 countries to accede to it before it comes into operation. It currently has about 25, so anything we can do to encourage further signatories, the less danger there will be from wars breaking out over water. In spite of the fact that no one in the UK, including Defra, DfID and the Foreign Office, is able to put forward a single remaining argument against signing, our Government have not acceded to this convention. Frankly, it is a disgrace. I will end there.
Lord Judd
My Lords, I am sure we all want to put on record our appreciation to the right reverend Prelate for having introduced this debate tonight. I find it very appropriate that it comes after such a long day—indeed, many weeks—of concentrating on health in our own country. It is difficult to imagine any greater single contribution to the health, well-being and productivity of the British people than what was achieved, in the 19th century in particular, in terms of drains and potable water supplies, which were desperately essential if people were to survive the awful diseases we had here, such as cholera and all the rest.
I am glad that the right reverend Prelate also drew attention to the importance that, while being excited by what the Joint Monitoring Programme has told us about progress, we should not let those overall figures mask the very real challenges that still exist. It is clearly a very complex issue, because while it is true to say that 40 per cent of the global population without access to improved drinking water is in sub-Saharan Africa, most of the progress that has been made, proportionately, is in places such as China and India. But then, within China and India there are huge discrepancies. Indeed, according to the Joint Monitoring Programme, in India only 34 per cent of people have access to improved sanitation facilities, and it is estimated that 51 per cent of people still defecate in the open. Poor sanitation is costing India $54 billion every year, or 6 per cent of its gross domestic product. There is obviously an urgent need for investment in both hardware, such as latrines, and community-led total sanitation programmes that can impact on behaviour change.
When these matters have been raised with the Government, DfID has said that it is doing pioneer work in Bihar and that, according to the outcome of that work, it will see how such programmes can be rolled out more widely in countries such as India. It would be extremely helpful if, when the noble Baroness replies to the debate, she could tell us something about progress in Bihar.
I want to concentrate on something rather different. It has struck me that, in a world of increasing resource constraints and increasing food insecurity, access to water must also be of key geopolitical concern. Water, the lifeblood of agriculture, is already scarcer than land and is a driver of land investments. Nearly 3 billion people live in areas where the demand for water outstrips supply. In 2000, 500 million people lived in countries that were chronically short of water. By 2050, the number will have risen to more than 4 billion. By 2030 demand for water is expected to have increased by 30 per cent. Access to water is therefore a key consideration in the modern-day rush for land that has seen as many as 227 million hectares of land in developing countries—an area the size of western Europe—sold or leased since 2001, mostly to international investors. The bulk of these land acquisitions has taken place over the past two years, according to the excellent research that has been undertaken by the Land Matrix Partnership. Often these large land acquisitions can be termed as “land grabs”, taking place over the heads of communities which live or rely on the land without free or prior consent, and often constituting an abuse of human rights. Therefore, any discussion about access to water and sanitation must understand the practices and economic activities which are directly taking water away in many situations from those who most need it.
Clearly, water has great strategic significance, and clearly there is potential for greater conflict in the world as these problems become more and more acute. Nowhere is this more obvious than in Gaza. If we want peace in the Middle East we should consider the situation in Gaza at the moment. The Strategic Foresight Group pointed out in May 2011 that, at the current rate of depletion, the Gaza aquifer will become unusable by 2016 and damage will be irreversible by 2020. Against this, Israel has approved the entry of materials for only four water, sanitation and hygiene projects in Gaza, with a total value of $3.75 million. A further 13 projects, worth $74.5 million, which would benefit more than 1.4 million Palestinians, are still awaiting approval. How can we build peace and stability if people are facing injustices of this order? Surely this plays into the hands of extremists.
As the noble Baroness, Lady Northover, pointed out on 1 February, according to the latest report from the Emergency Water, Sanitation and Hygiene Group in the Occupied Palestinian Territory, residents of Gaza use an average of 91 litres of water a day. This is less than the World Health Organisation’s recommended minimum of 100 litres of water a day to meet all health needs.
I shall be grateful if, in her reply, the noble Baroness can tell the House what specifically the Government are doing to tackle the water problems of the Middle East and Gaza because I see them as central to an overall solution in the area.
Lord Ahmad of Wimbledon
My Lords, I join other noble Lords in welcoming this debate and thank the right reverend Prelate for initiating it. He said in his opening remarks that some may find it surprising that he initiated such a debate. The giveaway is in the name of the diocese that he represents: it is entirely appropriate that the Bishop of Bath and Wells should initiate a debate on water.
Some 783 million people live without access to safe water. That represents about 11 per cent of the world’s population. As we heard from other noble Lords, close to 1.3 or 1.4 million children die every year from diseases such as diarrhoea caused by poor sanitation and unclean water. There are 4,000 child deaths a day—or one child every 20 seconds. I am a father of young children. Focus on those numbers for a moment. As my noble friend Lady Jenkin said in her speech, how do we take this basic commodity so much for granted? It is not a privilege but a right that should be available to all.
One in eight people in the world do not have access to safe water. Many women and children in rural areas in developing countries spend hours every day walking many miles to collect water from unprotected, unclean sources: open wells, muddy dug-outs or streams. As I saw when I led a delegation to Bangladesh, in urban areas many collect water from open, polluted waterways or pay high prices to buy what they think is clean and sanitised water. Quite often that water is dirty and unsafe but they have no alternative. Diarrhoeal diseases caused by unsafe water and poor sanitation cause further diseases. Cholera, typhoid and dysentery are common across the developing world.
I will focus on two elements in my brief comments this evening. We all agree without exception that there is an urgent need for action, but all too often while we consistently talk about clean water and sanitation they are overlooked in the global development agenda. It is important that we see the right solution for the right area.
Through my work with charities such as Humanity First, I have seen first-hand what can be done. Humanity First says about water hand pumps that,
“Africa and Asia have many rural villages where the population is typically between 500 to 2,000. For these areas, investment in heavy duty filtration systems is not economic”,
or viable. Bore hand pumps have been installed in 18 countries by this charity, serving 1.2 million villagers. It is important that these specific solutions are sought. Filtration pumps provide another solution in metro areas. On sanitation, where there is regular rainfall, rooftop collection systems may be used,
“to harvest water into tanks which can then be used for taps and sanitary purposes”.
As other noble Lords have said, education is also key. There is no point installing systems if people do not know how to use them. Gravity-fed systems provide another alternative,
“in areas such as Sierra Leone and Uganda where natural dams of water are held in the mountains”.
These can be used by sealing the source dam and piping the water down to feed off to villages. Finally, in the most remote parts of the world, family filtration units can also be used. In the event of disasters specifically, these provide a vital source.
The other element that I briefly wish to focus on is a disease called trachoma, which can ultimately lead to blindness. It is counted by some as a neglected tropical disease. There are 110 million sufferers. It is often carried by children and is transmitted by flies. The root cause of the disease is found in poor sanitation and a general lack of clean water. That allows these flies to fester and carry the disease by landing on young children’s eyelids which then, tragically, turn inwards and cause the eventual blindness of the child. I ask Her Majesty’s Government to outline their commitment to doubling total government investments in water and sanitation to meet the millennium development goal targets of halving the proportions of people living without water and sanitation by 2015.
While we often talk of cures, the diseases linked to lack of sanitation and lack of clean water should never get to that stage. They are not just curable diseases—they are preventable ones. Clean water and sanitation provide the solution and, as I said earlier, clean and safe water is a right, not a privilege.
Lord Roberts of Llandudno
My Lords, I also appreciate the opportunity to talk again in this Chamber about the needs of various parts of the world where clean water is treasured more than gold.
The Pacific Institute research report said that the failure to provide safe drinking water and adequate sanitation to all people is perhaps the greatest development failure of the 20th century. There was a time when we would say that if we could abandon the production of nuclear weapons for 14 days, we would be able to provide every home in the world with safe, piped, clean water. That of course has not happened and arid desert areas, countries where drought is endemic and places where war has destroyed normal water resources arouse so much compassion on our part. We are indebted to so many organisations, voluntary as well as government ones, which have tackled the problem in such a real and effective way. They deserve our deepest gratitude.
I was associated with the Welsh Water dragon project and after the rugby result on Saturday I am glad to be able to say I was. It was at the time of the great crisis and the war in Rwanda. A team went out with the Association of Pioneer Rescue Officers and they dug wells and cleaned existing water sources. I had a fax one morning which said, “We have stopped cholera dead in our patch”. Of all the faxes I have received, that was the one that nearly made me sing the “Hallelujah Chorus”. This happened and it can happen.
It is estimated that water-borne diseases will be responsible for 135 million deaths by 2020. We have already heard how every 15 seconds a child will die of a water-borne disease. This is a massive crisis and as the Pacific Institute research said it is our greatest failure. When the need arises in a particular emergency, how ready is the United Kingdom to respond? Is there a permanent emergency working group ready to assist immediately where there is exceptional need, drawing on the experience and using the valuable talents of organisations that have also dealt with similar situations? Have we got that? Are we prepared, wherever in the world it might happen? Should this now be part of our European commitment, or even wider than that, to make sure that if there is a need, we are there.
I have also, over the years, questioned where there is water purification equipment in the United Kingdom. When we were threatened some years ago with a nuclear attack we were told then that there were 14,000 available purification plants in the United Kingdom. Some, we know, did go to water companies and then went out to places in need. A few were made available directly to places such as Bosnia. What is the situation today? Where are these 14,000 water purification plants? Have they been destroyed or sold for scrap, or do they exist somewhere where they could be made available to meet the needs of various places in the world? Finally, and very briefly, the better prepared we are to meet urgent situations immediately, the sooner we can respond and the more lives will be saved.
Lord Gardiner of Kimble
My Lords, I, too, express my warm gratitude to the right reverend Prelate the Bishop of Bath and Wells for initiating this debate. It is ironic that your Lordships speak on the urgent need for clean water and sanitation in developing countries when over half of our country is shortly to be subject to drought orders, in order to conserve water. Much more must be done to manage water here, but in parts of the developing world the lack of clean drinking water has a devastating effect on the lives of millions and, tragically, a fatal one for almost 1.5 million people each year, a quarter of whom are children under the age of five.
It is in sub-Saharan Africa, as noble Lords have said, where the situation is the most critical. It is a part of the world where the Commonwealth has 19 members and hence, I believe, where the United Kingdom has a prime responsibility. In much of sub-Saharan Africa, still only 50 per cent to 60 per cent of people have access to improved water sources. This compares poorly with other parts of the developing world. The people of sub-Saharan Africa have for far too long been living in a vicious cycle of hunger, malnutrition, poverty and conflict. The most particular concern in threats to sustainable agriculture remains the reduction in availability of water. The noble Lord, Lord Cameron of Dillington, has already highlighted this. Without water there is no prospect of increased output and improved yields.
Recent initiatives in Turkana in northern Kenya by the charity Practical Action, whose patron is the Prince of Wales, are a source of great encouragement. Using what Turkana has a great deal of, sunshine, a solar-powered water pump has the capacity to draw up to 10,000 litres of clean water an hour. The solar system can also help purify the water. Its impact is transforming: illnesses have been much reduced; women are no longer having to walk up to seven miles to find water, and are no longer vulnerable to attack in doing so; and the production of crops and vegetables has provided enormous nutritional benefits. These are all benign differences that these solar pumps can make to these communities.
The Royal Agricultural Society of the Commonwealth is the only agricultural NGO within that association of nations. It is holding its biennial conference in Livingstone in Zambia this year. Its theme is “Feeding People: Africa’s Role in Sustainable World Food Production”. Water management is not only key to providing clean drinking water but is essential for the production of food. Africa’s population is expected to double by 2050 and stable food production will be dependent on stable water supplies. Indeed, what could have been a more impressive theme for an earlier Royal Agricultural Society of the Commonwealth conference than “The Power of Water”?
I very much welcome the Secretary of State for DfID reviewing where British aid should be directed. Providing clean water and sanitation in the world’s poorest countries should surely be central to Britain’s aid programmes. Not only do these measures immensely help people who live without these basic requirements of life, they also provides tangible evidence to British taxpayers that their money is being spent on making a profound difference to the world’s most disadvantaged.
The Government have been setting themselves challenging targets, looking for results and value for money. If over the next four years, because of aid from Britain, 15 million more people have access to clean drinking water and 25 million more people will have better sanitation facilities, what a difference that would make. I remember as a young man visiting British aid schemes in Malawi. I was struck then by the dedication of British aid workers on the ground. Today, they often work in far more dangerous areas than they did 30 years ago. We should acknowledge their outstanding contribution, which does so much to enhance Britain’s reputation as a decent country. The truth is, of course, that there is so much more to be done in securing a better, safer and prosperous future for millions of our fellow human beings.
Baroness Kinnock of Holyhead
My Lords, first, I thank the right reverend Prelate for initiating this debate. I know well his very strong commitment to international development and this is a very timely debate.
Clearly, noble Lords know and understand why water, sanitation and hygiene are critical to the efforts that we make to meet the millennium development goals, especially on health and child mortality, but also on education, gender and on other targets.
The unifying principle for public action is the recognition that since water and sanitation are basic human rights, there is an obligation upon us to act. What we do know is that there is no quick fix. Investments and policies put in place today on water and sanitation will take years to produce the results required on the scale that we need to see. However, that should not deter Governments and donors from making a far greater priority of such life and death issues.
For years many of us have identified the need for a rights-based approach to development which is clearly understood by Governments and by donors. I regret to say that this is not the case now for water and sanitation; the objectives remain the poor relation when political and economic priorities are being set. When it is so important, why is it that there are few, if any, dedicated sanitation ministries in developing countries led by senior Cabinet Ministers? How, therefore, will the under-resourcing and the need for building political momentum be dealt with, if across Governments water and sanitation are lagging behind at the back of government priorities?
This is a crisis. In development, we use that word quite a lot, but here we really have to mean it. So why is there such a shortfall in funding for this crisis? Why is it actually slipping down the priority ladder? Few noble Lords have made that point. I understand that DfID is reviewing water and sanitation programmes, checking, I suppose, for value for money. I certainly trust that the Government are listening closely to the Sanitation and Water For All partnership, which is doing such excellent work in encouraging the development of high-level political will to see a step change in the provision of water and sanitation.
However, to bring the issue into sharp focus, I have to express deep concern and dismay about the fact that the UK's bilateral aid to the sector was less than 2 per cent of total aid in 2010. Yet the proportion of UK bilateral aid that goes to water and sanitation programming is one-third of that of Germany and Spain and is less than 50 per cent of the average that is reported by other donors.
DfID can and surely should bear the burden of water sanitation and hygiene. The reason is plain. In 2010, the UK made just $66.3 million of new commitments to water and sanitation, compared to $252 million in the previous year under a Labour Government. In fact, in 2009, the Labour Government committed to spend £200 million a year on water and sanitation just for Africa, while—as the figures now clearly show—the coalition spent only half that amount worldwide in 2010-11. To be country-specific, I have to express my concern that, for instance, in Ghana, where 85 per cent of the population is without access to sanitation, 9.5 per cent of Ghanaian child deaths are due to diarrhoea, second only to malaria.
DfID has a large development programme in Ghana, which receives 3 per cent of all DfID’s aid to sub-Saharan Africa. In spite of that, though, none of DfID’s aid goes towards sanitation in Ghana, a country whose Government have an extremely good strategy on sanitation. I am therefore obliged to ask why DfID does not support this work and integrate it into its health and education programme, which works very well in Ghana. And while 5.5 per cent of all diarrheal deaths in the world are in Pakistan, DfID’s largest development partner, again, none of DfID’s programme in that country is directed to sanitation.
I could give other examples that are of great concern. I ask the Minister specifically to explain why such a significant deterioration in commitment to this crucial area of development aid has taken place. What exactly will the Government do to improve their record so far? When diarrhoea is the greatest killer of children in Africa and the second biggest killer of children globally, why is water and sanitation one of DfID’s smallest investment portfolios? We need an answer to that question.
Why is DfID not leading by example? What are the prospects for greater investment and ambition? Is DfID considering the need to extend its work into new countries where there are great needs, and in particular the need to increase efforts in south Asia? This House requires answers to these questions and a firm commitment by the Government to improve on the record so far by showing that there is clear understanding of the importance of safe water and, especially, the importance of the neglected priority for the provision of functioning toilets in developing countries.
This debate has been about the multidimensional nature of the priority that we attach to water, sanitation and hygiene. There is a huge repercussive effect for women and girls, for tackling poverty and for supporting human development. Sanitation and clean water are without doubt the most cost-effective of all public health interventions in terms of saving lives, reducing the burden of disease and improving economic productivity and growth. We therefore need to know why, when water and sanitation are so central to meeting the millennium development goals, there is such a shortfall by this Government in money and in action. Global aid has risen but water and sanitation as a share of global aid have actually fallen in the UK. When 780 million people do not have adequate sanitation, it is surely time to act and deal with what the UN has called “a pervasive benign neglect”.
Baroness Stowell of Beeston
My Lords, I join other noble Lords in congratulating the right reverend Prelate the Bishop of Bath and Wells on securing this debate during the week when we are commemorating World Water Day. His contribution and indeed those of all noble Lords participating this evening demonstrate our shared concern for an important issue that is central to the health and well-being of poor people in developing countries, particularly young children.
Several noble Lords have made reference to various statistics and facts to underpin the points that they have made. I will repeat some of them because they are worthy of repetition. The human and economic impact of inadequate access to water and sanitation is devastating. Some 4,000 children die every day from diarrhoeal diseases. That is an astonishing figure. On average, women in rural Africa spend one-quarter of their day fetching water, with girls sometimes being kept out of school by this onerous task. We have heard several references to the impact of the lack of safe water, particularly sanitation, on women and young girls. My noble friend Lady Jenkin was particularly compelling in her illustration of the risks put in front of young girls who do not have the benefit of sanitation.
The economic costs of inadequate access to water and sanitation are high. We estimate it is between 1 per cent and 9 per cent of countries’ gross domestic product. Other noble Lords have made interesting points in the context of the economic data. My noble friend Lord Chidgey was most interesting when he drew a comparison in India to the proliferation of mobile phones and the contrast with investment in safe water. Likewise, the noble Lord, Lord McConnell, drew a stark contrast between the loss of labour hours in sub-Saharan Africa equating to a full year’s work by the French workforce. That was quite astonishing.
As many noble Lords have said, the millennium development goal on water has been met, and this is an extraordinary achievement, which is proof that well spent aid can make a real difference to the lives of the world’s poorest people. However, we have also heard that there are disparities in achieving that goal. Some countries are a long way off meeting it. If I may respond to a question asked by the noble Lord, Lord McConnell, about the measure used in meeting that goal, it is worth saying that the Joint Monitoring Programme measures use of improved water sources and adequate sanitation. So if facilities are not functioning properly, they will not be counted as providing access.
As we have heard, it remains the case that 783 million people are without access to clean water and an astonishing 2.5 billion people are without access to basic sanitation. This was a point made by the right reverend Prelate and many others. Clearly it is a long way from being met and the fact that we have a long way to go is reason enough for this to be an important issue that needs to be addressed. If this were not enough, climate change will make managing scarce water resources harder. The evidence is there as to why improving access to water and sanitation remains a priority for this and previous UK Governments. I pay tribute to the previous Government for their achievements, efforts and commitment in this area. Since coming to power, this coalition Government have set new, specific targets for our 14 bilateral aid programmes. This builds on the work of the previous Government. By 2015, we will ensure that: 15 million more people will have access to clean drinking water; 25 million more people will have access to improved sanitation facilities; and 15 million more people will have been taught about the importance of good hygiene.
However, it is not only in bilateral aid that we invest money to improve access to safe water and sanitation. We also support sustainable water and sanitation services for over 1 million poor people using the local private sector in 12 countries including Bangladesh, Kenya, Mozambique and Rwanda. These programmes support local entrepreneurs to develop and market low-cost latrines, or to construct and manage local piped water networks for the urban poor, another group of people that we have heard a lot about this evening. We provide support too, to civil society and some of our excellent British non-governmental organisations, including WaterAid, Tear Fund, Oxfam, and lesser-known organisations such as Practical Action, which my noble friend Lord Gardiner referred to. Each of these has proven their ability to reach the poor in large numbers. WaterAid’s work in Malawi is an example of what can be done. It has revived traditional approaches to composting latrines and introduced social marketing, with over 3,000 families benefiting as a result.
My noble friend Lord Chidgey asked what we were doing to build local capacity and ownership. He made the point that it is critically important, as well as providing finance to build infrastructure. In response, I can say that we work through national Governments wherever possible to develop capacity and build ownership. Our programmes combine technical assistance and infrastructure construction. That goes some way to answering one of the points made by the noble Lord, Lord McConnell, about making sure that this aid is sustainable and does not just address an immediate problem but can go on supporting a nation into the future.
The noble Lord, Lord Cameron, asked a very specific question about whether the UK supports the UN convention on transboundary water management. While the UK does not in any way object to the convention and sees it as potentially developmental, we do not currently see supporting it as a priority. However, I hope the noble Lord will be pleased to know that we support several major transboundary water projects, including the Nile Basin Initiative and the South Asia Water Initiative.
Since I am talking about other projects, this is probably the right point to respond to a question that the noble Lord, Lord Judd, asked about Gaza and what the Government are doing to help the situation, which remains very difficult in that part of the world. We continue to call for the full implementation of the relaxation of access restrictions for Gaza, which Israel announced in June 2010, with robust monitoring for the entry of essential items on the dual-use list to allow for rehabilitation of the water network.
My noble friend Lord Roberts of Llandudno referred to 14,000 water purification units that were used some years ago. I do not have any specific information on data of that kind but NGOs, rather than the Government, would normally be the lead providers of water purification. While my noble friend is right to say that during the Kosovo crisis, NATO forces provided reverse osmosis equipment for local water purification use, at this time we would look to the NGOs to take the lead on this.
I say to my noble friend Lady Jenkin that we were not aware of the moringa tree but I will make sure that it is brought to the attention of my colleagues.
The Government are doing a great deal to improve access to water and sanitation. However, it is essential that we evaluate the effectiveness of our efforts and question whether more can and should be done—a specific point made by the right reverend Prelate. To that end and as part of our commitment to increasing accountability to all UK taxpayers, who have a right to know that we are achieving results from spending their money, we have recently conducted a full review of the UK Government’s portfolio of work in water, sanitation and hygiene promotion. We will publish the details of the review later this week to coincide with World Water Day, but I can inform your Lordships tonight that the review shows that our portfolio of programmes provides good value for money and is delivering positive results. Importantly, the review shows that our programmes are reaching the people who need them most. Last year, three-quarters of the money we spent through our country programmes was spent on basic systems such as rural water supply schemes, hand pumps and latrines, which are most likely to reach the poorest. This is a higher proportion than that achieved by almost any other donor. We are doing this in the countries with the greatest need. It goes without saying that the detailed evidence from the review will inform the Secretary of State and my other ministerial colleagues when they consider whether and how the UK Government could do more.
The right reverend Prelate made a specific point on this and asked whether we should increase our investment in water and sanitation. The UK Government are currently considering how we can scale up our results in water and sanitation on the basis of the evidence presented in the portfolio review. Any scaled-up finance can be only part of the answer. The latest Global Analysis and Assessment of Sanitation and Drinking-Water report shows that many countries are struggling to spend the allocated funding that they already receive. Strengthening government systems is also important. This is not just about more money going in but about making sure that the Governments in receipt of that money are in a position to use it.
As to the points made by other noble Lords, it is worth saying that although we have talked specifically about water and sanitation, through our commitment to projects under the headings of education, health or assisting other Governments, we do a lot to make an impact on the effects of lack of water and sanitation, and they have been referred to. The noble Lord, Lord Judd, referred to what we were doing in Bihar, and my noble friend Lord Ahmad specifically asked about the disease trachoma. Projects in all such areas are being tackled, but through other programmes rather than in the safe water programme.
I am running out of time, but I conclude by saying that just as importantly as reviewing our own investments the Secretary of State will share the evidence from our portfolio review with other donor countries and Finance Ministers from developing countries when he attends the Sanitation and Water for All high-level meeting in Washington next month. As noble Lords will know, the UK and Dutch Governments were behind the Sanitation and Water for All initiative, and again I pay tribute to the previous Government because this initiative was started during their time in power. Through it, DfID has been seeking to secure better targeting of aid to the sanitation and water sectors as well as improved transparency and accountability from other donors and national Governments. The meeting next month will assess progress against past commitments and we expect that new commitments will be made. However, we do not want just new commitments to do more. If we are to ensure an equitable spread of access to safe water and to make much better progress in improving sanitation, we need better targeting of aid.
To conclude, it is an injustice that the lack of something as basic as clean water and sanitation should adversely affect the lives of millions. This Government remain committed to addressing this injustice that has the potential to undermine the achievement of a whole range of millennium development goals. To that end, we will make sure that what we do achieves the greatest impact, that we keep learning and refining our aid programmes, and that we share our knowledge and evidence with our partners, whereby together we can all do more.
Baroness Kinnock of Holyhead
My Lords, perhaps I may request that the Minister responds in writing to the points I raised in my presentation.
Baroness Stowell of Beeston
Of course—my apologies for not making it clear to the noble Baroness that I will follow up in writing. I regret that time was not available for me to respond orally this evening.