Grand Committee
Mesothelioma Bill [HL]
(11 years, 6 months ago)
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The Deputy Chairman of Committees (Lord Colwyn)
My Lords, as usual, if there is a Division in the Chamber while we are here, we will adjourn for 10 minutes and resume after that time.
Clause 4 : Payments
Amendment 16
Lord McKenzie of Luton
“( ) Regulations under subsection (1) shall require the periodic review of average civil compensation amounts in mesothelioma cases, such review to be conducted by an independent body.
( ) Regulations under subsection (1) shall require an annual report to both Houses of Parliament and a review of payments made under the scheme.”
Lord McKenzie of Luton
My Lords, Amendment 16 requires an independent review of average civil compensation for mesothelioma cases, an annual reporting to Parliament and a review of the payments made under the scheme. We know very little of how the payment arrangements and levy amounts will work in practice and trust that a draft at least of the regulations for payments under Clause 4 and the levy under Clause 13 will be available in good time before Report. Can the Minister give us an assurance on this? We are grateful for the additional documents covering these matters that were circulated on Thursday, which do provide some additional analysis. It is a pity, frankly, that we did not have sight of them in time for the Committee session last week.
Although the Minister told us that his negotiation had been about the levy rate, it seems, inevitably, that payment amounts will be determined by the tariff. The levy rate will be set at a level that is presumably estimated to be sufficient to meet the projected numbers of those diagnosed and their age profile, together with admin and legal costs. If this is the case, the computation of average civil compensation is fundamental to payment levels and it is important that compilation of the tariff is current, hence the call for an independent, periodic review. The period between reviews might depend on an interim uprating—perhaps based on CPI—and maybe the Minister can tell us what is intended in that respect. Amounts payable under the statutory schemes are in practice uprated on an annual basis. We need to know more about the intent when the levy produces more, or less, than is required to cover scheme payments and administration. When it produces more, has the Minister’s negotiation focused on this being used to enhance the percentage payout—to the extent that it is not already 100%—or on it being carried forward to reduce the levy in subsequent periods? What is the insurance industry’s expectation of the position from the negotiations? Indeed, what is the Treasury’s position?
Clearly, to the extent that it has not already been achieved, we would expect to see any surplus used to enhance payments. If levy shortfalls could be borne, in whole or in part, by those diagnosed with mesothelioma, we will resist this. What consideration has been given to the possible avoidance of the levy by insurers, by bundling products and/or loading premiums on other business lines such as public liability? The additional information provided last week indicates a significant change to the estimated amount of legal fees which the scheme will fund. It reduces from £7,000 to £2,000, a benefit of £5,000 per case for the insurers. What is the reason for that reduction? It is also noted that the percentage of average civil compensation taken is calculated before any benefit recovery, which depresses the net amount received by claimants. Can the Minister let us have a note of the overall savings to government from these proposals—not only the estimated benefit recoveries but from not having to make payments under the 1979 scheme in the first instance?
There is much we need to know about these matters before we sign off the Bill. As well as ensuring proper updating, will the Minister tell us why the proposed percentage of civil compensation amounts payable under the scheme has been reduced from the original impact assessment of, I think, 76% to 70%? Which of the various averages or means from the national institute’s calculations has been used to drive the tariff in the new document, and why? The levy rate for the first four years is calculated in that document at 2.61% at the 70% payout rate. Is this consistent with an overall average of 2.24%, which is in the updated impact assessment? Further, the updated impact assessment puts overall cost as a percentage of GWP at 2.74% for the first four years. The current impact assessment, in a footnote, suggests that this was due to basing the average only on settled and withdrawn cases. Why is this, other than the fact that it is to the advantage of the insurers? Our concern is that even in the past few months the insurance sector has been chipping away at the scheme in order to reduce its obligations. That is why we need to strengthen the primary legislation. I beg to move.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, before I address the noble Lord’s amendment, I shall clarify a couple of points that were raised when we last met on Wednesday, to put noble Lords’ minds at rest and to aid today’s discussions. In the case of people who contracted mesothelioma from exposure to asbestos fibres that were on another person’s clothes, or were brought into the household by other means, the question was raised whether these people, too, were covered by employer’s liability. This is a complicated area and I will do my best to be succinct.
In cases of secondary exposure, the claim will be of negligence against the person who exposed the primary victim. Theoretically, that person could have public liability insurance, employer’s liability insurance, or both, or none. We have contacted the ABI on this matter and I understand that it is not aware of any cases where anyone other than the employee has been compensated under the employer’s liability policy. Therefore, we return to the point that the scheme will raise funds from the employer liability market to cover those who would ordinarily have been covered by those insurers. In this case, it seems that, historically, instances of secondary exposure have not been covered by employer’s liability insurance, so the scheme cannot provide for them.
Lord Howarth of Newport
I am extremely grateful to the Minister for responding to the Committee on this point, which was the subject of an amendment that I tabled. As I heard him just now, he said that because historically no cases had turned up, in future employer’s liability insurance should not cover secondary exposure, even in a case where the secondary exposure occurred—I hope he agrees with this; I think the Committee agrees—to someone who did the family laundry and washed the overalls of the employee who was exposed to asbestos fibres and who therefore found herself exposed to asbestos and contracted the disease. Surely we cannot simply extrapolate from the past on the basis that there do not happen to have been any such claims. It is entirely imaginable that there could be such claims, and it is not enough, if I may say so, for the Minister to say simply that because it has not happened, the Government will make no provision for it to happen in future. We still have a class of people whose predicament is just as grave as the predicament of someone who was a direct employee. I hope that the Minister will be prepared to look further at this.
Lord Moonie
To follow up on that, was the Minister referring to claims or successful claims?
Lord Freud
I am not sure whether they are claims or successful claims. My understanding is that there have been no cases where there has been compensation. My interest today is obviously not to re-run the debate that we have already had. We will have another chance to do this. I just wanted to get this on the record for the convenience of Members of the Committee at subsequent stages.
Lord Browne of Ladyton
The noble Lord is generous with his time. I listened carefully to his words. If they were a direct quotation from what the Association of British Insurers told his officials, and therefore him, it said that it had no record of any claim of that secondary nature having been settled through the employer’s liability insurance, not no record of any claim having been settled. I ask the Minister to go back to the question: since the association clearly has comprehensive data, has it any record of claims having been settled? If so, through what form of insurance were they settled and—this is the important question—were the insurers and those who carried the risk the same companies that carried the risk for compulsory employer’s liability insurance in respect of the circumstances of the cases?
Lord German
Following that point, I will quote from a House of Commons document, Mesothelioma: Civil Court Claims, dated 22 March 2011. Under the section marked, “Claimants other than employees”, it reads as follows:
“In a number of cases, claims have been made by those, including family members, who have contracted mesothelioma following secondary exposure to asbestos. Each case is determined on its own facts”.
I dread to quote the following fact:
“For example, the Ministry of Defence admitted liability for the transmission of mesothelioma to Mrs Debbie Brewer, whose father died from small-cell lung cancer … after a career as a lagger at the Devonport Dockyard. He had greeted his daughter each evening whilst wearing dusty overalls from which she is believed to have inhaled the fibres that caused her disease”.
It goes on to cite another case. There have obviously been some cases. The one I have quoted admittedly has the Government as the employer, but there is one involving another company further on.
Lord Freud
My Lords, I am grateful for those observations. I am sure that we will have a chance to discuss this in more detail later. I now move to—
Lord Wigley
Before the Minister moves on, is he not going to respond to the point made by his noble friend, who has shown that there were cases, which is totally at variance with the lead the Minister gave to the Committee?
Lord Freud
My Lords, we could spend all day on one point. I am just trying to get a response on the record. We will have another chance to go through this again. I was making a clarification.
I turn now to the query of the noble Baroness, Lady Sherlock. When discussing the proposed start date of eligibility for this scheme, we talked about insurers being able to reserve against that liability from that date. The noble Baroness drew attention to the fact that the levy will be an annual running cost, not a liability to reserve against. She is of course correct: the payment is not the same as a liability. However, the impact is much the same. The levy is an additional cost to insurers that needs to be factored into their business plans. To do this, they need to have confidence in the timing and amount of the cost to be incurred. Therefore, on 25 July 2012, when the intention to set up a payments scheme was announced, this provided a sufficient level of confidence for insurers to start to factor the levy into their business plans for 2014. I ask the noble Baroness’s forgiveness for my incorrect use of terms, and for her recognition that this does not change the shape of things in this case.
Baroness Sherlock
My Lords, I thank the noble Lord for taking the trouble to look into that and for the gracious way in which he has acknowledged his error. Of course I am happy to forgive him for this and for any similar offences. However, can he reflect for a moment on the consequences of the change? Although I confess to a tendency to pedantry, on that occasion I do not think I was simply being pedantic. I was trying to draw a distinction between whether the matter was a liability for which the insurance company would wish to reserve or a running cost for which it would have to plan, because I understood that the Minister had used the fact that an insurance company would not be permitted to reserve before a certain date as an argument for why the scheme could not start before 25 July. Had that been the case, I would imagine that no such restraint would exist in the case of planning for a payment. An insurance company can plan for a future level of running costs based on its own judgment, not on any auditing limitations. Will the Minister respond to that?
Lord Freud
In the interests of time, the best thing I can do today is to accept the fantastic offer of future forgiveness for anything I may say, and in return I promise to reflect on the consequences of the change.
Let me move on to all the other points that have been made. I promised to write to the noble Baroness, Lady Golding, about the Prison Service’s work, to the noble Lord, Lord Browne, on Clause 2, and to the noble Lord, Lord McKenzie, on three counts. A letter is now being sent to Peers and a copy has been placed in the Library. Judging from some side conversations that I have overheard, I am sure there will be further discussion on one or two of those matters. Having dealt with those issues, let me turn to the subject under discussion as set out in Amendment 16.
I understand noble Lords’ wish to ensure that if we are to express payment amounts in relation to civil damages, the data we hold on average civil damages in mesothelioma cases should be current. However, I must reject the proposal to require a yearly review on the grounds that it would not be fruitful due to the volume of mesothelioma cases. Reviewing civil cases on a yearly basis would be too frequent to show any trends or changes in the awards. Indeed, the data that we hold on the initial trawl for the period 2007 to 2012 show this. In this case, it takes a bit longer for meaningful trends to appear.
It should also be said that gathering the data is pretty costly, and in the interests of value for money we need to make sure that they are gathered at intervals that allow us to identify change. One year is too short a period for this, so a review of the data every five years is more appropriate. If we were to accept the amendment, costs would be incurred from gathering data on an annual basis, and further costs would be involved through the requirement for these reviews to be carried out by an independent body. As part of the monitoring planned, civil compensation amounts in mesothelioma cases will be reviewed, but there is no need for a separate body or for annual reports. Furthermore, I can give my assurance that this area will not go ignored.
I also offer the reassurance that we shall not just assign a fixed tariff to this and then ignore it. Far from it. Along with the monitoring of data from civil cases that I have just mentioned, I can confirm for the noble Lord, Lord McKenzie, that we intend to uprate the tariff on an annual basis in line with the consumer prices index. The noble Lord went on to put a vast number of specific questions to me, and we shall touch on quite a few of them later. However, perhaps I may pick up the point about legal fees, although we will deal with them in due course. A figure of £7,000 was mentioned, and more recently £2,000 was mentioned. In practice, it will probably come in at something in between, but we will deal with fees in the fullness of time.
A set of questions was based on what will happen if we collect more or less than we expected. The DWP will underwrite any under levy after the first four years through smoothing. Any over levy will be paid to the Consolidated Fund, as required by HMT.
Clearly, we will be setting a figure initially, then reviewing it. That is our best guess of the right kind of figure that we will be using. We moved the 76% figure to 70% on the basis of what the likely amount was that would minimise the risk of those costs being passed to British industry. This became clearer during the process of negotiation. Rather than go into the specifics about the 2.61% being consistent with the 2.24%, I will add that to a letter.
I hope with the commitments that I have made on how we are planning to set this levy, I reassure both the noble Lord, Lord McKenzie, and the noble Baroness, Lady Sherlock, on this matter, and I urge them not to press their amendment.
Lord McKenzie of Luton
My Lords, I thank the Minister for his clarifications on some of our earlier debates. I am sure we will return to each of the substantive issues about who should be entitled under this scheme and, indeed, about the start date. I am grateful for what he has said this afternoon.
Perhaps the purpose of the amendment was not as clear as it might have been and the Government did not anticipate or expect that there would be an annual updating of the civil compensation analysis. That would have to be done periodically, and how often that would be done might be driven in part by what is going to happen on annual uprating. The noble Lord has reassured us that there will be an annual uprating of the starting tariff by CPI. I think that is consistent with the statutory schemes at the moment. I took it that he was also supportive of a periodic updating of the data that underpin the tariff. I think that meets the purposes of the amendment.
I note that any over levy will accrue to the Consolidated Fund and make the Treasury happy, I am sure. The noble Lord said that the move from 76% to 70% was driven by the assessment of whether amounts were going to be passed on to the customers of the employer liability insurance providers. I take it from the impact assessment that it was to do with quite what cases were included in the analysis and those that were not. Perhaps I need to look at the record and go back on that analysis. It seemed that for no justifiable reason there has been a 6% reduction in the support that is going to be available for those availing themselves of this scheme, quite apart from the further loss, because of the change in the support for legal costs. We will come on to these things later this afternoon. Having said that, unless the noble Lord has anything further—
Lord Freud
That is a good point. I should have made it in response. Just to make it absolutely clear, the legal costs, whether they are £7,000 or £2,000, will be on top of the levy that we are talking about.
Lord McKenzie of Luton
I am grateful for that, and I understood that position. I guess that the insurer in that respect have to pay £5,000 less per case than they otherwise would have done, so they are in pocket as a result of this change.
Lord Freud
There are two points there. We have not determined the £2,000. We are looking at those two figures and have not yet made a decision. There are two bits of clarification there.
Lord McKenzie of Luton
I look forward to the final figures when they do come out. Can the Minister assure us that we will get at least a draft of the levy regulations before we get to Report? Without carping too much, if we are going to do that, it would be really helpful to have it at least in time so that we can spend a few hours getting our minds round what it all means.
Lord Freud
With the smallest of caveats, I am most hopeful that I will get that information to the noble Lord before Report.
Lord McKenzie of Luton
I am most grateful to the Minister, and I beg leave to withdraw the amendment.
Lord Howarth of Newport
“( ) must ensure that applicants to the scheme are reimbursed in full by the scheme for reasonable legal costs incurred by them in their pursuit of payment from an employer or an employer’s liability insurer and from their application to the scheme, over and above any other payment from the scheme.”
Lord Howarth of Newport
My Lords, when the Minister introduced the Bill on Second Reading, he rather gave us to understand that the Department for Work and Pensions and the Ministry of Justice were on separate planets, and I think used the phrase that one was not beholden to the other. Indeed, it appears that, within government, the left hand is not at all clear what the right hand is doing and vice versa. It should not be like that, of course. There is a principle of collective responsibility in government. More importantly, it matters very much that there should be coherent policy-making in the interests of mesothelioma victims and their dependants. The way in which policy is developed should not be for the convenience of Whitehall but should have an unwavering focus on producing a scheme as soon as possible that will in every dimension benefit mesothelioma sufferers.
The legal, and possibly other, costs associated with getting to the point of making an application and then pursuing it are significant. The impact assessment issued on 7 May—only last month—indicated that legal costs associated with the scheme overall would be of the order of £24 million to £27 million. We were told that the legal costs incurred by an applicant to the scheme, in the event that he was successful, would be of the order of £7,000. However, in the previous debate, my noble friend Lord McKenzie drew to the Committee’s attention the new document issued by the department on 4 June—less than a month after the original impact assessment—which says that the published impact assessment,
“used a figure of £7,000 per individual for legal fees; here we have moved that assumption to £2,000 per individual (unless otherwise stated)”.
We have just talked about that, and I heard the Minister say that neither the £7,000 figure nor the new £2,000 figure had much solidity, and that it might end up somewhere in between. I would be grateful if he could explain to us what is going on, because it seems extraordinary that the assessment for an applicant making a successful application to the scheme should be £7,000 in legal costs one month and £2,000 the next. That shift is of a remarkable order of magnitude and leaves one a little anxious about impact assessments. I appreciate that they involve a whole mass of judgments and are very difficult to achieve with any precision, but there is extraordinary latitude here. Does the figure of £9,000 legal costs for an unsuccessful application still stand? As I say, does the overall figure that was given on 7 May still stand? As we go forward to Report, it would help the Committee to be given much more detail about how these figures are arrived at.
What costs will a claimant incur and what legal costs will he or she be able to recoup? I would be interested to know what happens about the preliminary legal costs that a claimant will incur before he reaches the door of the scheme. Following diagnosis, the claimant presumably has to make an appointment to see a solicitor. I do not know how this would work, but perhaps he would then be referred to a specialist personal injury solicitor. A lot of work must be done to determine whether a claim can be made against an employer or employer’s insurer, and to test whether that claim is strong enough to proceed in court. All these hoops must be gone through before the claimant is able to embark upon a claim against the scheme. Could the Minister in his response kindly escort the Committee along the path a claimant must take in legal consultation and legal process on his way to the scheme and to the completion of an application to it? We would then know much more about what the reality will be for claimants.
Lord German
My Lords, I am grateful to the noble Lord, Lord Howarth, for raising these issues, because it gives me an opportunity to raise some of the questions around legal costs and about the work that has to go into preparing a case under the proposed scheme.
My first question concerns civil cases and the information that has been provided to us in the tariff about the awards. Is it net or gross, and does it include the legal costs? Have they been excluded from the awards or do they come on top? If they are on top, we need to know what kind of money has been paid to lawyers when a claimant has been awarded in order to be able to judge whether the figures in the documentation before us are accurate. I had always assumed that the impact assessment would provide accurate information, so I was rather stunned to realise that the figures of £7,000 for a successful applicant, £9,000 for an unsuccessful applicant downgraded to £2,000, is something of a leap. If you are a sufferer or the relative of a sufferer, engaging a lawyer to do the preliminary work that is necessary to undertake this sort of action presents some sort of risk if the application fails. I want to explore that area as well.
The impact assessment gives an estimate of unsuccessful legal fees as £3 million out of a total of £24 million. A rough division shows that one case in every eight is unsuccessful, so if you are the one person out of the eight, presumably in a civil case action you are going to have to find those fees, unless of course you can find a no-win no-fee lawyer. I raised this issue at Second Reading. It seems that if you were about to embark upon this legal route, unless there is some form of support guaranteed at the end of it it would be the no-win no-fee lawyer to whom you would have to turn. I would be grateful if my noble friend could confirm that or tell us what alternatives there are.
The issue of evidence that requires a lawyer is quite substantial. Having now had the benefit of seeing the draft rules for the scheme, Part 1 paragraph 2 lists the evidence that an applicant may be required to provide. It is quite substantial and includes the history of employment and the companies to which the applicant is referring. In civil cases the courts have made it clear that you have to prove negligence, and three tests are given in the Appeal Court judgment. Three measures have to be satisfied in order to prove negligence. My second question, therefore, is: does the applicant have to prove negligence? That would be far more difficult to do in a case where the company or insurer is not present, unless the word of the applicant is determined to be acceptable.
Lord McKenzie of Luton
My Lords, we have Amendment 42 in this group, about which I can be brief. Before speaking to it, I will say that I support the thrust of the amendments moved by my noble friend Lord Howarth and the questions posed by the noble Lord, Lord German. Specifically, the amendment seeks to ensure that the definition of the costs of the diffuse mesothelioma payment scheme includes legal costs incurred by a person bringing proceedings, including appeal costs, and in particular that it covers the costs of proceedings brought as a consequence of Clause 10. Where Clause 10 proceedings are facilitated, can the Minister confirm that the financial help referred to will cover the legal costs of proceedings, including appeal costs? How is the funding for this to be organised? Presumably it will come from the levy but, like other amounts in respect of legal costs, not in a way that reduces the tariff amount. I will not probe further the issue of the reduction in estimated legal costs as the Minister has enough queries about that already. However, I look forward to the answer.
Lord Freud
My Lords, these amendments look to allow for legal fees to be paid by the scheme without limit. Amendment 17, tabled by the noble Lord, Lord Howarth, looks to reimburse in full all legal costs incurred either through applying to the scheme or through bringing proceedings against an employer or insurer. The noble Lord, Lord Howarth, has also tabled Amendment 28 to cover the cost of legal advice obtained in respect of appeals to the First-tier Tribunal. Amendment 42, in the name of the noble Lord, Lord McKenzie, and the noble Baroness, Lady Sherlock, also seeks to cover any legal costs, including the cost of appeals.
The introduction of the scheme is aimed at making the receipt of payment as quick and simple as possible. The amount that a successful scheme applicant is paid will include an amount for legal costs. This will be a fixed amount and will be included as part of the scheme payment received by an applicant and specified in the regulations. In the impact assessment, we used the working assumption of roughly £7,000 to go towards legal fees for each successful application. Since then, we have revised the numbers, using the working assumption of £2,000. The final amount will likely fall somewhere between the two. For clarity, the schedule will show the amount of the actual payment and the amount of legal fees, which will be on top of the 70% figure, to be absolutely clear in response to the question from my noble friend Lord German and the noble Lord, Lord Howarth.
I reassure the noble Lord, Lord Howarth, that the MoJ and the DWP are at least on the same planetary system—some of the time, anyway. The specific regulations will be laid after the Bill receives Royal Assent. The MoJ will conduct elaborate, complicated consultation. To update the noble Lord, Lord Howarth, on timing—I hear his strength of feeling on this—the consultation will be launched in July 2013, next month, and will contain specific options. Clearly, it is recognised that this is a complex issue. The consultation period will last 12 weeks as it will go through the summer, and the response will be published in the winter of 2013. Some of the issues around the right kind of fixed costs will be dealt with in that consultation.
The aim of the scheme is to make the receipt of payment as quick and simple as possible. In response to my noble friend Lord German’s question about the level of information that is required, the eligibility criteria are specified in Clauses 2 and 3 of the Bill. The scheme is not a no-fault scheme, so the applicant will be required to establish the eligibility criteria. However, they are in practice much simpler and more straightforward than in a civil claim. Rather than go through all the specifics of that, in the interests of time I would prefer to set it out in writing.
The reasons for wanting to set a fixed amount of legal costs that can be recovered by lawyers are threefold. First, it is important that applicants are not charged unreasonable or disproportionate legal costs by their lawyers, as we have seen happen in other instances. Any legal work would be in respect of an application to a statutory scheme, which is non-contentious and much quicker and simpler than civil litigation. Secondly, we hope that fixed costs will deter scheme applicants being pressured into entering no-win no-fee agreements, potentially reducing the amount of scheme payment paid in respect of their disease. Thirdly, it is important that the scheme is not overburdened with high legal costs, which would raise the levy and jeopardise the scheme in its entirety.
In respect of any legal costs associated with appealing to the First-tier Tribunal, if these were to be paid in every case that could act as incentive for anyone who was unsuccessful in receiving a scheme payment launching an appeal, even if the appeal was without merit. This would significantly increase the amount of money needed to fund legal fees, requiring the levy to be set higher. Any significant increase in costs could prevent the scheme being set up. It could also overburden the tribunals system with unnecessary appeals.
Lord Avebury
That takes care of the disincentive to bring claims to the First-tier Tribunal that have no merit, but what about the claims that do?
Lord Freud
It is important to highlight that higher rights are not required in the First-tier Tribunal or the Upper Tribunal as they are in civil courts. That means that scheme applicants could represent themselves, or that their solicitor could conduct any advocacy on their behalf; they would not need to instruct expensive legal counsel. There will be no legal aid for appeals to the First-tier Tribunal following the review scheme decision unless exceptionally it is necessary to make legal aid available to avoid a breach of an individual’s rights under the ECHR or under European Union law relating to the provision of legal services. This will keep costs to a manageable level.
Picking up on the point about the tribunal system, it is traditionally an inquisitorial rather than adversarial system and is designed to make things easier for those representing themselves. For those who do wish to obtain legal representation, it is hoped that lawyers will charge a fair and proportionate rate. The work will be non-contentious and there will be no defendant as there is in a civil case. The tribunal system is there to assist appellants. There is therefore every incentive for lawyers to carry out work on scheme appeals required efficiently and in a way that keeps costs proportionate.
Picking up the question from the noble Lord, Lord Howarth, on the level of fixed fees, clearly the MoJ consultation will consult on both the principle and the structure of such a regime to support a dedicated pre-action protocol. I hope noble Lords can see the need for pragmatism here—the need to keep costs at a proportionate amount and to protect the money that an applicant receives in respect of the disease from high legal costs, as far as possible. I urge the noble Lords not to press the amendment.
Lord McKenzie of Luton
Could the Minister deal with the point about proceedings that could arise under Clause 10? These are proceedings which the scheme administrator may help a person to undertake,
“for example, by conducting proceedings or by giving advice or financial help”.
Presumably the costs of that help would be outside the fixed fee arrangements. Would the levy make some sort of provision for those costs? Otherwise that would come off the tariff announcement.
Lord Freud
We will deal with this issue in some detail in debate on a later amendment. In practice, where the scheme decides that it is a sensible thing to do, it will of course by definition take on the costs of pursuing that application.
Lord Howarth of Newport
My Lords, I am very grateful to the noble Lord, Lord German, and to my noble friend Lord McKenzie for their precisely focused and apposite questions. I am also grateful to the Minister for what he has said in response to this debate, although I wish he had not set up an Aunt Sally in misrepresenting both my amendments, because I was very careful to include in the wording of each amendment that it was only reasonable legal costs that I contemplated should be met in these ways.
Lord Freud
Let me apologise for any misrepresentation that I may have inadvertently made.
Lord Howarth of Newport
The Minister is so engaging as he apologises that of course it would be churlish if I did not immediately say yes. I think it would be helpful if at some stage he would also elaborate on the circumstances in which the ECHR exception to the disqualification for legal aid might apply. Should we anticipate that people taking cases to tribunals would do so in pursuit of justiciable rights under the European Convention on Human Rights, because that could make a significant practical difference? I simply do not know the answer, but it would be interesting and helpful to have some advice.
The Minister did his best to defend his colleagues over the way at the Ministry of Justice, but when I inquired on Wednesday of last week when they expected to issue the consultation, I was told that it was going to be this week. He has just told us that it has slipped yet again to July. There would then be the consultation, and it is proper to allow a reasonable amount of time for people to respond to that. Finally, the Government’s response and determination of what they are going to do is not expected until the winter. That is a fairly elastic target.
I am worried that the MoJ might be holding things up so that mesothelioma sufferers and their families will be prevented from getting the benefits of the scheme as soon as they might. While we as parliamentarians seek to scrutinise this legislation properly, we are anxious to give it the speediest possible passage through Parliament. It would be rather sad and ironic if, because of the lumbering pace at which another department moves, it was not possible to get the whole scheme up and running as early as it otherwise might be. I hope the Minister will convey these thoughts to his colleagues in the Ministry of Justice.
The Minister brought us the good news that legal costs will be paid on top of the 70% payment under the scheme. That makes me very happy, and on that basis I beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, I should explain that this amendment was tabled before we had a chance to peruse a draft of the scheme rules, but there are some issues still worth pursuing. It is a probing amendment and is, I hope, precisely focused for the benefit of my noble friend. Clause 4(3)(a) states that the scheme may make payments “subject to conditions”, and paragraph (b) gives,
“the scheme administrator power to decide when to impose conditions or what conditions to impose”.
To the extent that these conditions are to be covered in the scheme rules and that those scheme rules are to be subject to some parliamentary process, we are perhaps more relaxed about the position. However, paragraph (b) appears to give a wide discretion to the administrator, which is likely to be an arm of the insurance industry. The draft scheme rules throw some light on this by identifying that the conditions that might be imposed include requiring that a trust be established and that a deputy or guardian be appointed. The draft rules also authorise the meeting of costs to this end by the administrator. The thrust of this seems to be a concern in situations relating to the capacity or legal competency of the claimant or a dependant. However, there is nothing that requires the imposition of conditions to be for the benefit of the applicant or dependants rather than that of the levy payers.
A key point in the draft rules is that conditions can be imposed to ensure that that payment is used for the benefit of the applicant. That requirement does not appear in primary legislation. There would be merit in it doing so to tie down this potentially wide discretion. I await the Minister’s response on that. We might return to this quite narrow point on Report to embed the concept that is in the draft rules, which we have now seen, into primary legislation. I beg to move.
Lord Browne of Ladyton
My Lords, I rise to reinforce the points made by my noble friend Lord McKenzie. It is easier to understand what lies behind Clause 4(3) now that we have the draft scheme rules. To understand the Government’s thinking one has to read that subsection along with Rules 15 and 16(3)(e)—I think—and presumably also the review provisions and the appeal provisions that will apply all the way back to any conditions that may be imposed, set out in Rule 19 and those following it. It is by no stretch of the imagination straightforward to determine what exactly the combination of this provision and the rules will mean in practice. I have just a couple of specific questions, which I hope are relatively simple.
The primary legislation, if enacted, will allow conditions to be imposed on any payment. There appears to be no limit to the conditions that can be imposed. The rules, to some degree, limit them. Rule 15, in particular, says that this rule—that is, the decision to impose conditions on making a payment—applies when the scheme administrator first decides to make a payment under the scheme but considers that there is good reason to impose one or more conditions in making a payment in order to ensure that the payment is used for the benefit of the applicant.
The next paragraph, paragraph 2, says that the scheme administrator may impose such conditions as it considers appropriate. We appear to go back into a very broad power immediately after a limiting power. It is not clear to me that the limitation in the first part of that rule applies to the second part of that rule. If it is intended to do so, clarification from the Minister might be of some assistance.
I reinforce the point made by my noble friend Lord McKenzie that if that restriction on making conditions is to apply to all conditions, it would be better for that restriction to be reflected in the primary legislation rather than in the rules. There is at least one possible interpretation of this at the moment—I have not had time to work out all the possible interpretations—that is, that the power to make the rules requires the scheme administrator to come to the view that rules are necessary to ensure that the payment is used for the benefit of the applicant. Once they pass that hurdle, the administrator can make any rule that it considers appropriate. It is not clear that all rules have to pass the test of being rules made to ensure that the payment is used for the benefit of the applicant. That is intended, but it would be helpful if that was clear.
Lord Freud
My Lords, I fully recognise that Amendment 19 is a probing amendment that would remove the possibility of the scheme making payments subject to conditions. It would therefore have the consequence that the recipient of a scheme payment would have full control over the use of the scheme payment.
Let me make the purpose of this part of the clause absolutely clear. In general, we fully expect that most scheme payments will be made to the applicant. This is for vulnerable people who might be mentally incapable of handling their own finances or who are unable to look after their own welfare by attending to basic financial transactions that adults normally carry out for themselves. It is important, therefore, that in those sorts of cases the scheme administrator is able to subject some payments to certain safeguards, such as how a scheme payment is to be used, and to decide when such conditions should be imposed.
We expect the scheme administrator to use this power to ensure that, where appropriate, payment is made to an appropriate person or fund to safeguard the beneficiaries’ interests. I am sure that the one thing on which we are all agreed in this Committee is that we want to avoid the recipient of a scheme payment having unsupervised control over the use of a large sum of money if they are incapable of managing such a sum. However, a number of valuable points are being made about the interplay between primary legislation and regulations, which we will take away and consider. Clearly, the rules are in draft and we will take the points made today as we look over them. With that assurance, I urge the noble Lord, Lord McKenzie, and the noble Baroness, Lady Sherlock, not to press their amendment.
Lord Avebury
Perhaps I may ask my noble friend why, if the only circumstances in which conditions are to be imposed are those that he has just outlined, where the recipient of the compensation is incapable of handling his own financial affairs, Clause 15 does not specify those circumstances and thereby reduce the breadth of the wording, which according to him is completely unnecessary.
Lord Freud
I take on board my noble friend’s point. As I said, I shall look at this and the other points made by this Committee. The rules are only in draft form, and we may look at them to lock that down.
Lord Browne of Ladyton
I am sure that the Minister will do this, but perhaps I may check that he will consider whether it would be better to reflect that restriction in primary legislation rather than allowing it to appear for the first time in the rules.
Lord Freud
I will look at that, but I remind noble Lords that primary legislation sets a framework, and what matters here is how the rules work. In this case, the rules that we have agreed will go before Parliament in the form of regulations, so there will be a chance for oversight of that issue. Therefore, it does not matter too much where we make sure that the matter is under control.
Lord McKenzie of Luton
My Lords, I thank the Minister for his response and his consideration of this matter. I am not sure that we had formally heard that the rules will go before Parliament by way of regulations. We had anticipated that from our debate last week, but I am grateful for the assurance.
Lord Freud
My Lords, I must withdraw that completely. I meant to say that we are considering very deeply the suggestion made by the Committee that the rules will go into regulations.
Lord McKenzie of Luton
I am most grateful to the Minister for his further clarification. Of course, this was a probing amendment, and we have common cause in seeking to make sure that vulnerable people are safeguarded in relation to these payments. I thank my noble friend Lord Browne for his support—he made a very telling point about the interpretation of things as they stand—and the noble Lord, Lord Avebury. I am grateful for the fact that the Minister will take this away and give it further thought. I hope he will consider putting a provision into primary legislation that will make clear the intent of this decision-making power and the conditions that could be imposed by the administrator. Even if the rules are to be dealt with by regulations, they are likely to be dealt with by the negative procedure, which is what the Delegated Powers Committee recommended. Obviously, that is a less satisfactory forum in which to address these details. Having said that, I beg leave to withdraw the amendment.
Lord Howarth of Newport
“( ) The Secretary of State may not seek repayment of that portion of any compensation or scheme payment made in respect of pain and suffering.”
Lord Howarth of Newport
My Lords, the amendments in this relatively large group are intended to enable us to probe the Government on their intentions behind the recovery of social security benefits and lump-sum payments from payments made by the scheme. I also offer some suggestions as to how a relatively lenient recovery regime might reasonably be applied to payments from the scheme.
Schedule 1 deals with these matters, but it is a prime candidate for the plain English prize for legislative opacity. It was beyond my wit to amend it for the purposes I had in mind. Therefore, I tabled the amendments to Clause 4 to establish some principles to constrain and guide the Secretary of State—and, in the case of Amendment 26, to provide him with an opportunity not to take away too much with one hand while he, or rather the insurance industry, gives with the other. I emphasise, as is the nature of amendments to the Bill, that we are talking only of the application of these proposed measures to the diffuse mesothelioma payments scheme or other schemes that might be set up under this legislation. I am not, needless to say, seeking to rewrite social security law; the Minister need not fear that that the ground will give way under his feet if he is willing to take an accommodating view of some of these amendments. It is an opportunity for the Minister to explain—relatively fully, I hope—what the spirit and practice will be of his department’s approach to recovery of benefits and lump-sum payments in these circumstances.
There is one principle, at any rate, that we all—I believe I can include the Minister—want to apply: the rules and the practice where the social security benefit arrangements and the scheme interact ought to be as generous as possible. That is more particularly the case in the situation in which the full, insured entitlements which a claimant ought to have have proved impossible to obtain because the documents are not there: a situation in which claimants have had to fight and wait for financial relief; and in which, when that relief then comes, it is discounted by 30% from the payments they might have secured from a civil court action. Of course, that discount of 30% might become less if Parliament in due course agrees with every noble Lord who spoke in our debate last week on Amendments 15 and 18 on whether the 70% measure should be raised.
The Minister might say that there is a deficit. He will not quite put it like this: that the further the Chancellor’s financial strategy goes astray, the more imperative it is that no opportunity is lost to reduce the deficit between what the Government raise and what they spend. In response, I say that, of all members of society, mesothelioma sufferers and their families should least be required to shoulder the burden of deficit reduction. On any reasonable scale of values, they surely should have priority for relatively generous treatment—before, for example, affluent individuals who can still get top-rate tax relief at 40% on their pension contributions.
However, the Minister might say that we must have regard for the interests of the generality of taxpayers. To that, I say that the British people are kindly and sympathetic. I believe that 99.9% would be positively glad to think that some minuscule part of the taxes they pay was going to help their exceptionally unfortunate fellow citizens who are mesothelioma sufferers or their dependants.
The principle that should govern the specifics of benefits recovery that are provided in the Bill should be that the DWP should be as generous and lenient as it can be. What, in particular, ought the Bill to provide? Amendments 20 to 22 and 27A offer alternative ways in which we might exempt from recovery payments from the scheme made on account of pain and suffering. This goes with the grain of DWP practice; indeed, it might even be in the law that the compensation recovery unit does not recover the element of an award made by a court that is in respect of pain and suffering, in contrast to the elements of a court award that are made on account of loss of earnings or costs of care where recovery occurs.
If it is going with the grain of existing DWP practice, the Minister might say that these amendments are unnecessary. To me, however, it is not clear that the rules that the DWP and the compensation recovery unit apply where court cases are concerned can simply be transposed to the scheme. The Minister at Second Reading was at pains to say with the utmost clarity:
“The scheme is not intended to be an alternative to civil damages, nor is it a compensation scheme”.—[Official Report, 20/5/12; col. 689.]
However, he then went on blithely to say that,
“an eligible applicant will receive a scheme payment after the deduction of relevant social security benefits and lump-sum payments, which the scheme administrator will repay to my department through its compensation recovery unit”.—[Official Report, 20/5/13; cols. 691-92.]
Setting aside the palpable contradiction there, the Committee ought to probe the significance of the Minister’s insistence that payments from the scheme are not compensation. I wonder whether what is going on here is that the DWP wants to be able to decree that no part of a payment from the scheme should be taken as compensation for pain and suffering, and therefore that the capital rules will, or should, apply to the whole of the payment, and that the compensation recovery unit, which henceforth should be better known as the MPR—the mesothelioma payments raider—would be able to help itself to a vastly larger proportion of a payment made by the scheme.
Under new Section 8A(2)(b), in paragraph 3 of Schedule 1, it is contemplated that the gross amount of the compensation payment—that is, the payment that the Minister said, in terms, on Second Reading, was not a compensation payment—
“is to be reduced to nil in any case where the amount of the recoverable benefit is equal to or greater than the gross amount of the compensation payment”.
There we have it. We need to amend the Bill to protect mesothelioma sufferers and their families from the compensation recovery unit predators. The law should not enable the Government to take away from an award made by the scheme that element of the award that, if it were a court award, would be designated as being made on account of pain and suffering and which the CRU therefore could not touch. The scheme is already unfair, with payments 30% less than they would be from the court. If the compensation recovery unit is to be let loose untrammelled on scheme payments, it will be even more unfair. The draft rules of the scheme, with which the Minister has provided us, make no mention of any of this. They say nothing about whether any part of payments from the scheme would be on account of pain and suffering, loss of earnings or costs of care. The rules say simply that payment must be made in a lump sum.
Amendments 20 and 21 would provide that the whole payment by the scheme would be regarded as being made on account of pain and suffering, and that the Secretary of State could not recover payment made on account of pain and suffering. In that way, the whole payment would be secured from the grasping fingers of the CRU. If the Committee thinks that is going too far, Amendment 22 would limit the protection on account of pain and suffering to the first £75,000 of a payment made by the scheme. Amendment 27A is more moderate still, and would provide that:
“The first £50,000 or 50% of any payment by the scheme, whichever is the larger amount”,
should be protected. I hope the Committee will look seriously at that proposition.
I will be brief on the other amendments, which are intended to probe the Minister’s intentions with regard to the recovery of means-tested benefits and non-means-tested benefits, recovery from the person diagnosed, carers and dependants, and of social security benefits paid before the grant of an award by the scheme and of benefits or lump sums paid after such an award has been granted.
The May 2013 impact assessment dealt with these matters on page 18, and anticipated that over 10 years the department would recover £71 million in social security benefits and lump sum payments. It would be helpful if the Minister would break down that £71 million as between social security benefits and lump sum payments. The £71 million would be reduced by £2 million of administrative costs and another £17 million for the smoothing costs over the first four years of the scheme, leaving a net £52 million going back to the department.
Paragraph 90 on page 23 of the impact assessment states that,
“under the Universal Credit … rules being developed, if a person suffering from mesothelioma received civil compensation or a payment from the scheme, it would not affect their means-tested benefits for at least a year (and would be ignored indefinitely for Pension Credit). If they put the compensation or scheme payment into a trust within that year, the value of the trust and any income from it would continue to be ignored”.
The paragraph goes on to note that bereaved relatives would not be so protected.
Amendment 25 would extend that period of ignoring from one to two years. Tragically, at the end of two years it may be anticipated that nobody who has been diagnosed with mesothelioma will still be alive, so they will not see benefits or lump sums taken from them.
Amendment 27B suggests an alternative route to protecting these payments via trust law. It would be extremely good if the Minister could look at this, having regard to the situation of the terribly vulnerable households, one of whose members has been diagnosed with mesothelioma. In effect, the amendment would protect social security benefits and lump-sum payments beyond that first year by deeming that the payments from the scheme had been made as payments from trust and should therefore be ignored. Of course, it deems that the money held by the scheme is held in trust for claimants.
An alternative way to approach this might be to have another amendment stating that the scheme should make all payments into trust on behalf of its beneficiaries. I am well aware that trust law is immensely complex, but I suggest that there might be a route that could reasonably be pursued by the Committee and by the Government through the use of trusts to protect recipients of payments in that second year.
Amendment 27 would protect lump sums altogether from recovery. In the normal course of events, I would endorse the principle that nobody should be compensated twice for the same thing. Indeed, my amendment is still consistent with that principle for two reasons. First, the Minister said that these payments were not compensation, so he cannot argue that people would be compensated twice. Secondly, as the payments are to be discounted by 30% from what the court would award, we can very properly take it that the lump-sum payments will fall into the 30% that will not be paid and therefore cannot be reclaimed.
I hope the Minister will explain very precisely his intentions in regard to the recovery of social security payments and lump-sum payments, and that he will seize some practical hints that I have offered as a way forward, so that he can protect mesothelioma sufferers from his own compensation recovery unit. I beg to move.
Lord Browne of Ladyton
My Lords, I am strongly in favour of the principle that informs the amendments in this group, which has been set out in such detail by my noble friend Lord Howarth of Newport. At Second Reading, the Minister in explaining—and, I dare say, in justifying—the part of the Bill that allows for the recovery of benefits, relied on the principle, with which we all agree, that nobody should be compensated twice. However, until then he had explained in some detail, in order to explain the 70% of average as a payment to mesothelioma sufferers and to defend it against the argument that it was insufficient, that we were dealing not with a compensation scheme at all but with a payments scheme. As I pointed out strongly in my contribution at Second Reading, it is inconsistent to have the same two arguments in relation to the same legislation. Either this is a compensation scheme or it is a payment scheme.
My noble friend Lord Howarth of Newport, in trying to devise a justification or a reason for this, was being generous to the Government. He has observed from a sedentary position that he did not mean to be; I know that, but he was. This is a payment scheme until we come to compensation recovery, because if it were a compensation scheme, all the justifications for averaging and for taking percentages of averages would fall away. They would be intellectually incapable of being defended. However, one comes to the point at which it is clear that the Treasury wants to try to recover some of this money as if it was compensation, so it has to become compensation or quasi-compensation to justify that. One can then deploy the high-minded principle that no one should be compensated twice for the same loss. I have some sympathy for the Minister in having to ride these two horses, and I hope that he is not torn apart by them. However, as I said at Second Reading and as someone once said to me when I was a Minister, if you cannot ride two horses at once, you should not be in the circus.
The truth is that that is what lies at the heart of this issue. The justification for recovering benefits paid to people through the compensation recovery process is not because people cannot be compensated twice, it is just because the money is there and it can be recovered. It is because it can be done. To some degree, given that the Treasury has inadvertently been subsidising the insurance industry through a genuine compensation scheme in the past, perhaps there is some justification for trying to get some of the money back, and of course we are living in difficult financial times. I understand that, but I would like the Minister to explain in simple terms why this is being done rather than by seeking some justification in the principle that informs compensation recovery.
The compensation recovery system is set out in quite complicated law called the Social Security (Recovery of Benefits) Act 1997, as now amended, and in a variety of subsequent Acts of Parliament. It applies throughout the United Kingdom. I was not present for the earlier debate about the calculation of the average that would inform the payment, but there are substantial differences between awards for mesothelioma in Scotland as opposed to the rest of the United Kingdom. The Scottish courts are much more generous to mesothelioma sufferers than are the English courts and award substantially more in damages. However, compensation recovery law is consistent throughout the United Kingdom.
If Amendments 20 and 21 were to be accepted, my noble friend Lord Howarth would have created a device to defeat the Government’s ability to recover compensation at all by designating all payments as being for pain and suffering, and through the second of the two amendments would discount all payments for pain and suffering from recovery. He is wise to do this because that is the way the Act operates at the moment. However, thanks to some of my colleagues in the legal profession in Scotland, I have a pretty exhaustive list of all the heads of damages litigation that are not offsetable in relation to benefits. The list is the best part of half a page long. I will spare noble Lords the whole list, but it moves from pain and suffering to loss of future earnings, and it goes into some detail. All of them are component elements that one would look at if one were calculating the level of compensation payment due to a mesothelioma sufferer as a possible head of damages.
The thing about this list is that it lies behind all the settlements that form the history of the settlements that in turn have informed the average, from which the Government will take the 70%. They are not irrelevant to the calculation of the payment that will be made; they are at the heart of it. If the payments were made through a court process of compensation, a very small number would allow for benefit recovery: substantially, they would not allow it. There is a lot to be said for treating these payments, which are informed in that way, in the same way as one would treat compensation. Not the least that can be said in favour of that proposition is the fact that the Government cannot justify recovering any benefits unless they can use the word “compensation” against the payments.
I will make a final point to the Minister that is not reflected in an amendment. I would like to know his justification for this situation. If, having gone through a process of looking at historical settlements and averaging them one is then justified in making a payment that is 70% of that average, why is one justified in taking 100% of the benefits of that 70% settlement? Why do we not at least restrict the recovery of the benefits to the same percentage that we apply to the calculation of the payment?
Lord McKenzie of Luton
My Lords, my noble friend Lord Howarth opened up an important area for consideration, and was strongly supported by my noble friend Lord Browne. I start by asking the Minister about the computation of the benefit recovery amounts in the impact assessment. Does he have an analysis that distinguishes between the recovery of lump sums and the recovery of a benefit, and, if so, what is included in the second list?
In principle, we should seek from the Bill a scheme that will place claimants in the same position as they would have been had they received compensation in the normal manner, notwithstanding the fact, as my noble friend outlined, that it is a payments scheme. This position is fettered in two key respects. First, average compensation in age bands is used as a proxy for actual compensation. We accept this as a practical matter. Secondly, only a percentage—70% is the figure that is currently suggested—of relevant average compensation will be used. We strenuously reject this and will continue to press for 100% payment.
On benefit recovery, we do not challenge the current broad approach in the benefits system, although there is always scope for a review to see how it is working in practice. However, I suggest that any change should not be fundamentally a matter for the Bill. However, neither should we see it as a mechanism to redress any shortfall in the payments scheme. That should be addressed by paying at 100%. To do otherwise would relieve insurers of their obligations and impose a cost on the state. However, it is absolutely right, if our benchmark is normal compensation arrangements, to ensure that a scheme payment should attract no greater benefit recovery than a payment received as compensation. If our benchmark is 100% payment, we would not want to see any compensation recovery that was greater than it would be with a formal compensation scheme.
One key difference is that a scheme payment, absent my noble friend’s amendments, is not allocated over various heads. We received a helpful note on this from the Bill team with some illustrative examples, and were grateful for a further meeting this morning that helped to clarify some issues. As for lump sums recoverable in respect of the 1979 and 2008 Acts, it is understood that there is no difference between the payment scheme and normal compensation, although if paid at less than 100% there might in extremis be a shortfall for a scheme payment. The recovery of other benefits is more convoluted, and a whole range of benefits are potentially recoverable. The rules were helpfully summarised in the briefing note, which says:
“The compensator may reduce the amount of payment he makes to the injured person to take into account … any amounts he is required to pay the SoS. The injured person is never required to repay the SoS recoverable benefits or lump sums. If the compensator cannot reduce the compensation he is still required to repay the SoS”.
Two things are happening here: there is an amount that has to be paid by the compensator to the Secretary of State, and there is a second question about the extent to which any of that can be recovered from claimants. The note continues:
“Compensation can only be reduced to offset amounts to be repaid to the SoS where the compensation and the benefit are both paid to meet the same need”.
So,
“compensation paid for loss of earnings can only be reduced to offset benefits paid for loss of earnings”,
such as IIDB, while,
“compensation paid for cost of care can only be reduced to offset benefits paid for cost of care”.
Further, compensation paid for general damages such as pain and suffering—the thrust of a number of my noble friend’s amendments—cannot,
“be reduced to offset any recoverable benefits”.
On principle, since what is being paid here is not allocable over any of those amounts, it would seem difficult to justify any benefit recovery as a result. I think it was suggested in our meeting this morning that this is a practical matter and that these things are somehow fixed by the insurers in how they allocate payments. I am bound to say that I struggle to see how that might happen.
There is a further issue. Again, I am grateful for a note from the officials on this. I just want to press a point of principle to clarify the situation. If the scheme payment was 100% for pain and suffering, would the compensation recovery work as follows? If the scheme payment was £100,000, the claimant received IIDB of £10,000, and a 2008 scheme payment of £10,000, the benefits of IIDB could not be recovered from payments for pain and suffering but the 2008 scheme lumps could be, so the outcome would be that the claimant received £90,000—that is, the £100,000 scheme payment minus the £10,000 deduction for the lump sum—but the cost to the scheme administrator would be £110,000: the £20,000 to DWP and the £90,000 to the claimant. In those circumstances, the claimant actually meets more than the gross cost of the scheme payment. I do not know the extent to which that is factored into the noble Lord’s calculations. It seems that we need clarity about how this will all work. We would be reluctant to go down the path of tweaking the benefit recovery as a means of letting insurers off the hook. It is their obligation to pay 100% compensation. If we do otherwise, we in effect ask the state to meet that shortfall, when insurers should be doing that.
Lord Freud
My Lords, I thank the noble Lord for these amendments. Clearly, the general intention behind them is to place restrictions on the ability of the Secretary of State to recover both social security benefits and existing lump-sum payments made in accordance with the 1979 and 2008 Acts. This would then prevent the scheme administrator from reducing scheme payments to offset the cost of repaying recoverable benefits and lump sums to the Secretary of State. Actually, it may be the case that two of the amendments would restrict the scheme administrator from seeking repayment where sums were paid incorrectly due to error, mistake, misrepresentation or fraud. Clearly, where a scheme payment is falsely claimed it is only right that it should be repaid. Broadly, we think—as the noble Lord pointed out in his cogent remarks—that the amendments are aimed at restricting the recovery of benefits from scheme payments.
Lord Avebury
My Lords, would a person be advised not to submit a claim where it appears that the amount of the repayments would be greater than the £87,000 that he was likely to receive? Is that the effect of this particular section of the clause? When he obtains initial legal advice, would the solicitor be bound to tell him that, as he has already received a sum approaching £87,000, it would not be worth his while submitting a claim?
Lord Freud
That is clearly the theoretical position. The reality is that, of course, in practical terms, the payments in the scheme we are introducing dwarf any other payments that have already been made and any of the lump-sum and other benefit payments. They absolutely dwarf them, given that typical payments under the 2008 Act run at, I think, approximately £15,000. It would inevitably be worth anyone’s while, in terms of money, to go after a promising claim.
On the trusts mechanism, we are using the existing mechanisms to protect these kinds of payments, or to isolate them and see what they are. As the years stretch out, it would be taking a sledgehammer to crack a nut to change all that legislation. As noble Lords know, I am trying to do my best to keep the benefits system coherent and as simple as possible.
With that, I hope that I have covered most of the ground there—
Lord McKenzie of Luton
I think that the Minister is about to wind up his remarks. Can he confirm that if one is dealing with benefits, not lump sums, a scheme payment can only be reduced to offset amounts to be repaid to the Secretary of State where the scheme payment and the benefit are both paid to meet the same need? As the scheme payment is not allocated to meet any particular needs to do with mobility, the cost of care, loss of earnings or pain and suffering, it would seem logically to follow that there can be no withholding from the scheme payment in respect of those benefits. Is that correct? It is a different issue for lump sums.
Lord Freud
I shall speak slightly off the cuff. We do not look backwards to those payments anyway, so only the payments in respect of mesothelioma would be offset. Looking ahead, there may be some payments, but they would have to be specifically for mesothelioma. I do not think that I have misrepresented the position, but I will write to get it precisely right for the noble Lord.
Lord Freud
These amendments do not achieve their aim in many cases, and they could have some deeply unintended consequences. In particular, they would change the way in which the long-established benefit recovery system operates, and I therefore urge the noble Lord to withdraw them.
Lord Howarth of Newport
My Lords, I am grateful to my noble friends Lord Browne of Ladyton and Lord McKenzie of Luton, and the noble Lord, Lord Avebury, for participating in the debate and for the excellent points that they have made. I will study with great care what the Minister has said and see whether I can elicit from his words a clear and acceptable set of principles that the department will apply here. He seemed to say that nothing must shake or disturb the existing ways of doing things, and I am not in the least bit surprised that he has said, in his characteristically courteous way, that my amendments are variously defective, subversive or would create chaos. I am an amateur in these matters and I have simply sought to raise the pertinent issues. Merely because my amendments may not stand up to the rigorous scrutiny of this Committee does not mean to say that the issues are not very important and worthy of continuing consideration as we reach the later stages of this legislation.
I agree with the Minister that the term “compensation” is a pretty slippery and rather sloppy one. It becomes a fairly sickly euphemism, not least in the context in which it is often used, where it refers to bankers’ compensation. Those are remuneration packages worth many millions of pounds, and one wonders what the bankers are being compensated for, other than the opprobrium in which they are held in society. I am with him in being cautious about the use of the term “compensation”. However, as my noble friend Lord McKenzie indicated, there may be difficulties in the Government seeking to have it both ways. We should consider further whether the normal rules that apply to compensation recovery, which are entirely legitimate and we do not challenge, can actually be laid over this particular scheme with its very distinctive circumstances.
I detect between the lines of what the Minister has said and from his tone that he wants to be as flexible, constructive and generous as he can be. In that case, we should certainly look further at the use of the mechanism of trusts. I completely accept that we should not take a sledgehammer to crack a nut and that it would not be sensible or appropriate to drive a coach and horses through the existing provisions of trust law in relation to social security benefits. However, it may be possible to harness those provisions to provide slightly more extensive alleviation. Whether, for example, the scheme might be able to provide a hand-out package, which is a trust ready for use that it would be easy for people to pick up and use, I do not know.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, in moving Amendment 29, I will also speak to Amendment 30. Clause 7 provides for the Secretary of State to administer the payment scheme or to make arrangements for a body to administer the scheme. The arrangements can allow the body to arrange for somebody else to administer the scheme or any part of it. Amendment 29 would ensure that any further delegation which is permitted has the approval of the Secretary of State. This is a straightforward issue. Administering the scheme is an important undertaking, and the Secretary of State should be satisfied that those involved are fit for purpose.
It may be that the Minister will say that the Secretary of State should not have to be bothered if somebody is appointed to administer, say, a routine part of the scheme such as the processing of payments. However, as it stands, an appointed body would appear to be able to cause the whole of the operation practice to be transferred to somebody without any recourse to the Secretary of State. Our concerns in this matter might be negated if we knew what arrangements the Minister envisages for membership of any company or other body which it is expected will run the scheme. We know the insurance industry view but, by now, the Government must have arrangements in mind. Perhaps the Minister will share these.
This leads on to our Amendment 30, which requires the administering body to be constituted from members who are demonstrably independent of any active insurers. As levy payers, clearly they have an interest in the numbers and the profile of successful claims. The Minister may again say that they may also have an interest in helping people bring proceedings against individual insurers. That may be so, but it does not negate the fact that active insurers have a direct financial interest in the outcome of the scheme.
Of course, it is accepted that claimants have a right of appeal, but we have already touched on the costs and time of this, and it is not a sufficient answer. In the draft scheme rules it does not appear that there is a requirement for any specific insurance expertise to be brought to bear—or, if there is, it does not seem to be the driver of the scheme. What discussions have taken place with the insurance sector about administration? I beg to move.
The Deputy Chairman of Committees (Lord Geddes)
If the noble Lord will curb his enthusiasm for just a moment, the amendment proposed states:
“Page 4, line 11, after ‘may’ insert ‘, subject to the consent of the Secretary of State,’”.
Lord Wigley
I am grateful for being curbed. I support the amendment. It will lead on to Amendment 32, which also addresses these issues, so I may come back to them at a later stage. It is immensely important that this body is seen and respected by those outside the industry as being at the very least impartial with regard to the way things will be conducted. It must have the confidence of the beneficiaries, their families and everyone else involved. This amendment, together with Amendment 32, which we will consider in a moment, needs to be taken on board, if not in this form of words then at least in a form of words that addresses what could be a weakness in the Bill.
Lord Freud
I thank the noble Lord and the noble Baroness for their amendments. I assure them that all diligence will be observed during the setting up and monitoring of the administrative body. Irrespective of the background of the scheme administrator, the body will have to administer the scheme in a way that satisfies the requirements of the legislation and apply scheme rules that will ensure that the administrator is sufficiently tied to a set of rules as determined by the Secretary of State and not by the insurance industry. What matters is not whether the body administering the scheme is formally independent of the insurance industry but whether it is controlled by the arrangements put in place by the Secretary of State and whether it is properly monitored. The arrangements will achieve that.
The insurance industry is setting up a company to meet the requirements of the scheme rules. There would be time advantages to using such a body, with it potentially being able to make payments more quickly than if the Government had to establish a body. However, any body with which the Secretary of State makes arrangements will be subject to the standard call-off contract that gives us the power to change a supplier should it fail to operate as required.
I make it clear that we will undertake due diligence in ensuring that whoever ends up delivering the scheme does so in compliance with the rules that we set out. If any body does not meet our requirements, we will not make arrangements with it, and, if it fails to deliver, we will make arrangements with another one. I will respond to Amendment 32 when the noble Lord moves it. It may be relevant, and I will make a further statement at that point.
Lord McKenzie of Luton
My Lords, I thank the Minister for his response and am grateful to the noble Lord, Lord Wigley, for his support. He said it was important that the administrator was seen as, and respected for, being impartial and particularly important that he had the confidence of beneficiaries. I was less than satisfied with the Minister’s response. He said that it might be quicker to get things under way because the insurance industry was actively engaged in putting together a body now, but that does not cut much ice because it will be April 2014 before any payments are made, which gives ample time to set up all sorts of bodies in the interim.
Also, we still do not have a response as to who the members of the body are likely to be. I do not know whether the Minister can at least share his initial thoughts on that. We accept entirely that, ultimately, it is the Secretary of State who must be satisfied that the scheme is being run properly but that is quite different from having someone with overall responsibility and having confidence in the routine operation of the scheme. As the noble Lord, Lord Wigley, said, both the beneficiaries and the industry itself must have confidence in the way its routine operation is undertaken.
I think that this is outstanding business that may overlap in part with the next amendment but, for the time being, I shall withdraw the amendment after the noble Lord has dealt with the issue of the likely membership of the vehicle, whether it is set up by the insurance companies or someone else.
Lord McKenzie of Luton
That is fine. I beg leave to withdraw the amendment.
Lord McKenzie of Luton
“Oversight Committee
(1) The Secretary of State must establish, by statutory instrument, an Oversight Committee to monitor, review and report to the Secretary of State on the overall arrangements comprising—
(a) the scheme;(b) scheme administration; (c) the Technical Committee;(d) the Employers’ Liability Tracing Office; and(e) the Electronic Information Gateway.(2) The Oversight Committee must include representatives of—
(a) the Asbestos Victims Support Groups;(b) trade unions;(c) active insurers;and must be chaired by an independent person.”
Lord McKenzie of Luton
My Lords, this amendment calls for the establishment of an oversight committee to monitor, review and report to the Secretary of State on the overall aspects of the scheme and related arrangements. Those arrangements cover not only the scheme, but its administration.
Lord Freud
My Lords, in the interests of time, I thought I might pre-empt the noble Lord on this, although I think that he must move the amendment first.
The Deputy Speaker
The noble Lord, Lord McKenzie, must beg to move the amendment, and I will then put the question. If that is in order, the noble Lord, Lord Freud, can then speak.
Lord Freud
I apologise to the noble Lord for cutting him off in full flow. I understand that the level of independence of the scheme administrator is of some concern and clearly it is one of the things that have prompted the amendment. I can reassure the noble Lord that whoever the Secretary of State makes arrangements with to administer the scheme will be bound by agreements to comply with the scheme rules and departmental standards of implementation and administration. However, I am attracted to the idea of having some oversight of the scheme set out more formally. We could, for example, put something about reviewing and monitoring the scheme in the scheme rules and set this out in more detail in the arrangements for the scheme administration. I am minded to do more work on this to consider further whether we should bring forward an amendment on oversight of the scheme. I am not able to agree to the amendment today because I need to do the work first, but I would be grateful if I could consult the noble Lord, Lord McKenzie, and get his wisdom on this. I shall then come back to noble Lords at a later stage. On that basis, I urge him to withdraw the amendment.
Lord James of Blackheath
I will make one small comment about subsection (2) of the new clause proposed by Amendment 32: there are no longer any active insurers for asbestosis. You are really talking about the reinsurers. They are the people you should seek to have represented.
Lord Wigley
They say in the world of chess, as I have quoted before, that a threat is more dangerous than the execution. Clearly the threat of the speeches coming in support of this amendment evoked the shooting of the fox before it got out of its hideaway. I am grateful to the Minister for his positive response. Obviously, it is in the hands of the noble Lord whether to now withdraw the amendment, but I hope that we will come back to this on Report.
The Lord Bishop of Ripon and Leeds
I will just add my support for this, particularly for subsection 2(a) of the proposed new clause and the place in it of the Asbestos Victims Support Groups. We have talked lengthily in this discussion about the place of insurers, but one principle of legislation such as this needs to be that nothing that is for us may be done without us. It is crucial that the victim support groups are represented on any oversight group that is produced.
Lord Avebury
My Lords, I think the Minister said in replying to the previous amendment that when we came to this one he would give us some more information about the membership of the body that the industry proposes to establish. It would be very useful to know that, as it conditions the way we will think about monitoring and reviewing. Clearly, if the board established by the insurance industry contains people who have an association with that industry, the degree of intensity of monitoring and reviewing would have to be far higher than it would if the board were totally independent.
Lord Freud
To answer in just one minute: I will take the whole package and look at it. That is what I am committing to do.
Lord McKenzie of Luton
My Lords, just before I formally withdraw the amendment, I should say that I am grateful to the noble Lord for his offer to take this away and consider it. I am happy to engage with him in doing so, as I am sure are other noble Lords who have spoken in support of this: the noble Lords, Lord Wigley and Lord Avebury, and the right reverend Prelate the Bishop of Ripon and Leeds. To make the point clear: I see this as an oversight not only of the scheme but also the wider components of the ELTO technical committee. We know that the insurance industry sees all these arrangements as an integrated package. It is important that the oversight that we set in train covers all the components. I would certainly be keen to see those people involved in the victim support groups having some role in this, as well as the insurers.
Lord Freud
I can assure noble Lords that I will enter negotiations with them without any preconditions. Basically, we will have a look at this issue and then discuss it with noble Lords to determine the best way forward.
Lord McKenzie of Luton
I am grateful to the Minister and beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, I will speak also to Amendments 34, 35 and 44 in this group. Clause 10 gives the power to the scheme administrator to help a person bring proceedings. However, this is only the case where a payment is first made under the scheme. Under Clause 2(1)(c), eligibility for the scheme depends on a person not bringing or being unable to bring an action against a negligent employer or insurer. Perhaps the Minister would expand on the circumstances envisaged where a payment has been made but proceedings may now be possible. Is it to do with the subsequent discovery of the possibility of proceedings in light of new information? Why is there the requirement that a payment be made before these provisions apply?
On Amendment 35, the Bill suggests an enabling power for the administrator to help a person bring proceedings. Our amendment requires the administrator to give this help, provided they have the agreement of the claimant. In pressing the point, we are mindful of the prospect of the insurance sector itself running the scheme, and thus of potential conflicts of interest. Where proceedings are possible that might garner a higher reward for the claimant, then, unless the claimant stipulates otherwise, that help must be provided. I accept that it may be necessary to stop any spurious or vexatious requirements by claimants, but that could be built into any amendments.
The proceedings in question can be brought against an employer for negligence or breach of statutory duty, or against an insurance company. Amendment 34 includes those against whom proceedings might be taken, such as the Financial Services Compensation Scheme. I am bound to say that this is rather a tentative amendment, but it is understood that the FSCS compensates those covered by insolvent insurers. However, perhaps that is what the Minister has in mind in Clause 10(5).
Amendment 44 in this group addresses a different point. It requires the arrangements for establishing a technical committee to be in accordance with regulations; that is, that the committee should be subject to a parliamentary process. The Delegated Powers and Regulatory Reform Committee has addressed this point, but having seen the Government’s response to it, I am minded not to press the amendment. I beg to move.
Lord Freud
I thank the noble Lord and the noble Baroness, Lady Sherlock, for these amendments. Amendments 33 and 35 cover the scheme administrator’s ability to help a person bring relevant proceedings through the courts. The amendments allow the scheme administrator to help a person bring relevant proceedings against particular employers or insurers whether or not a scheme payment has been made. They also provide that the Secretary of State’s scheme rules may include the circumstances where the scheme administrator is required to help a person bring proceedings with that person’s consent.
Where bringing relevant proceedings will benefit both the applicant and the scheme by allowing a scheme payment to be recovered from an award of civil damages, it is right that the scheme should be allowed to help a person bring relevant proceedings. We want to allow flexibility in the scheme so that the scheme administrator can decide, based on an individual’s circumstances, whether it is in the interests both of that person and of the scheme to help that person bring proceedings. We want to avoid inflexibility where a scheme administrator is obliged to help a person bring proceedings with that person’s consent. It is also not appropriate for the scheme administrator to use scheme funds to bring proceedings where the scheme may not benefit from such action.
Amendment 34 allows the scheme administrator to help someone bring a claim against the Financial Services Compensation Scheme where they have already received a scheme payment. The Financial Services Compensation Scheme makes compensation payments when insurers are insolvent. In cases prior to 1972, the Financial Services Compensation Scheme will pay compensation only where both the employer and the employer’s liability insurer are insolvent. Where both an employer and insurer are insolvent, a person may also be eligible for a payment under the Bill. So it is possible for a scheme payment to be made where a person may also be eligible for compensation from the Financial Services Compensation Scheme. If a scheme payment has already been made and it is subsequently established that a Financial Services Compensation Scheme payment can be made, it could be in the interests of the scheme to help a person make an application for an FSCS payment so that the scheme payment can be recovered from the FSCS payment.
This amendment is an interesting proposition. I am minded to do more work on it to consider further whether we should bring an amendment to allow the scheme administrator to help a person make a claim to the Financial Services Compensation Scheme. However, since I have not done the work, I am not able to agree to the amendment today.
Amendment 44 means that regulations will be needed for the Secretary of State’s arrangements with a body to establish a technical committee. The committee will make decisions on questions arising between a potential claimant and an insurer as to whether an employer maintained employer’s liability insurance with that insurer at a particular time. The technical committee is separate from the scheme and will decide an issue prior to any application being made for a scheme payment. The scheme may in fact never be involved with some cases, if insurance cover can be determined by the committee. The committee is therefore still essentially determining a private dispute between two parties, albeit facilitated by legislation, and is not directly making any decision about the allocation of public money to individuals. For that reason, it is appropriate that it will be outside government and that it should be set up under non-statutory arrangements.
We also want the procedure of applying for a technical committee decision to be simple, straightforward and as flexible as the law will allow. We believe that the best way to achieve that is for the Secretary of State to make arrangements with a body that will have the expertise to decide questions on insurance, rather than to enshrine the technical committee’s functions in statute. I therefore urge the noble Lord to withdraw the amendment and to not press the others.
Lord McKenzie of Luton
My Lords, I am grateful to the Minister. As I think I said in moving the amendment, I had already gone cold on Amendment 44. The exchanges with the Delegated Powers Committee have dealt with that. I am grateful to the Minister for taking away the point about the Financial Services Compensation Scheme and I hope that we will see an amendment on Report. On the other amendments, I am not totally convinced that there should be a “may” rather than a requirement but I am not minded to press the matter and beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, I hope we can be brief with this. In moving Amendment 36, I will speak to the other amendments in this group; namely, Amendments 37, 38 and 39. I have raised the issue with the Bill team, so this is an opportunity to put something on the record.
Schedule 2 precludes an individual from claiming benefits under the 1979 and 2008 state compensation schemes if an application is made under the mesothelioma scheme provided for in the Bill. Equivalent exclusions are added to the parallel Northern Ireland legislation. This probing amendment simply adds the word “successful” to the reference to “application”. As it stands, if somebody should apply to the mesothelioma payment scheme unsuccessfully, Schedule 2 would seemingly prevent access to the 1979 or 2008 statutory schemes. I cannot believe that that was intended and it would not be particularly fair. I beg to move.
Lord Wigley
My Lords, I will speak briefly in support of this amendment for the same reason: to try to get clarification with regard to the interplay with the 1979 scheme. I raised this matter at an earlier stage and would be very interested in some clarification from the Minister.
Lord Freud
I thank the noble Lord and the noble Baroness for these amendments, which I understand are probing amendments. I am hopeful that I can give complete satisfaction on the matter. The intention of these amendments is to enable a person to apply for a payment under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, or under the corresponding legislation in Northern Ireland, after they have made an application for a scheme payment but before a scheme payment is made or where the application is unsuccessful.
One of the conditions of entitlement under the 1979 legislation is that a person has not brought any action or compromised any claim for damages in respect of a disablement, for example by issuing proceedings against a negligent employer or insurer, or by settling a potential claim out of court. The provisions of Schedule 2, which these proposals would amend, ensure that people who apply to the scheme and those who bring an action or claim for damages are treated equally under the 1979 Act. If a person is prevented from claiming under the 1979 legislation because they have made an application to the diffuse mesothelioma payments scheme, instead they may still be able to claim under the 2008 diffuse mesothelioma schemes established under Part 4 of the Child Maintenance and Other Payments Act 2008 and the corresponding Northern Ireland legislation.
Lord McKenzie of Luton
My Lords, I am again grateful to the Minister. I accept from what he has said that there is a route to at least the equivalent, even if the 1979 Act would be barred under these circumstances. I am a bit less clear as to why the 1979 provisions could not be amended in the way suggested in the amendment.
On the 2008 Act, I accept entirely that compensation under that scheme is currently paid at the same rate as the 1979 scheme, but that was not always the case—certainly not in the early years of the scheme. I do not think there is anything that technically links the two to require each to be paid at the same rate. Although people will currently be able to put themselves in the same position as if they could have claimed under the 1979 Act, I am not convinced that that would inevitably be the case if the route is to have to look at the 2008 Act. However, perhaps we can reflect on the Minister’s response and return to this at a later stage; or maybe we could have some more detailed, technical discussions on this before the Report stage so as to make sure that we understand precisely why the 1979 scheme cannot be amended as suggested. In the mean time, however, I beg leave to withdraw the amendment.
Lord Howarth of Newport
Lord Howarth of Newport
My Lords, Amendments 40 and 45 in this group relate to the possibility of additional schemes being established. They would introduce that possibility into the Bill; perhaps I should say that they would clarify what has already been hinted at and may already be in the Bill. Amendment 40 would empower the Secretary of State to levy employers’ liability insurers in order to fund additional schemes comparable to the diffuse mesothelioma payment scheme. Amendment 45 would empower the Secretary of State to establish by regulation other schemes in relation to long-latency, asbestos-related diseases.
The difficulties of establishing entitlement to insurance payments after many years, when the employer has gone and the documentation is missing, are not confined to the circumstances of mesothelioma. If sufferers from asbestos-related cancer or asbestosis face the same barriers to securing compensation, if we call it that—perhaps we had better say “financial relief”—is it not right that they should be supported by analogous schemes?
I spoke at Second Reading about those two particular diseases as well as diffuse pleural thickening, pleural plaques, pleural effusion and rounded atelectasis. All of these are diseases of the lung and the pleura caused by inhalation of asbestos fibres. The Minister spoke encouragingly in that debate, saying:
“The issue of individuals who have developed other asbestos-related diseases through negligence or breach of statutory duty and are unable to bring a civil claim for damages of course needs to be addressed”.—[Official Report, 20/5/13; col. 690.]
Indeed, justice requires that where people have contracted one or another of these terrible diseases as a result of the negligence of their employer causing them to be exposed to asbestos fibres, surely they ought to be supported on a comparable basis.
Interestingly, the department has just produced a document entitled, Estimates of the Impact of Extending the Scope of the Payment Scheme in the Mesothelioma Bill to Include Other Asbestos-Related Diseases and Other Non-Asbestos Work Related Diseases. It expects that there will be some 2,000 asbestos-related lung cancer deaths yearly, 725 newly assessed cases of asbestosis and 821 cases of non-malignant pleural disease—around 3,500 cases a year of one sort or another. The department acknowledges that it may be more difficult to establish a causal occupational link where these other diseases are concerned and estimates that the levy on insurers to fund a scheme for asbestos-related diseases other than mesothelioma, if the new scheme were to be constituted on the same principle as the DMPS, would amount to £478 million compared with the £322 million cost of the levy for the mesothelioma scheme. That is a significantly larger cost than that of the mesothelioma scheme, but I think it is not impossible to contemplate at some point in the future. I certainly do not think that new schemes should be funded via the DMPS itself, nor do I think that anybody is in a position to create a new scheme immediately. However, it should be done in the fullness of time—indeed, as soon as possible. Therefore, while we are legislating to provide the basis for the diffuse mesothelioma payment scheme, it seems sensible that we should also be clear that we are legislating to make provision for further analogous schemes to be established on future occasions. I beg to move.
Lord James of Blackheath
My Lords, the problems of the Navy in this regard persist for that service. An MoD meeting has been called for 10 o’clock tomorrow morning. Will the Minister be present at that meeting? It would be helpful to know that.
Lord James of Blackheath
I think it will be harder to make progress without the Minister. It seems to me that three very significant problems are emerging in any dialogue with the MoD at present, and they will not go away very easily. Each of them has been shadowed in the discussions this afternoon. For a start, of course, this is a compensation payment for a dying sailor. There is no argument about it. There is no way you can call it anything else. We are here talking of it not being a compensation payment and this gives rise to a total misunderstanding in the minds of the MoD people to whom I have been talking because they seem to think that what we have here is a great big government-funded handout that they can dip their hands in and have a share for their sailors.
Of course, the downside is that in saying no to them, we run the risk that this clever and inspired programme to force the compensation programme through for non-compensation payments will invite the dreadful comparison that the Government, who are concerned to prepare catch-up payments to all the sufferers of this disease for whom they can, should include responsibility for the Navy, which has deliberately discarded any responsibility for payments for people who are suffering similarly. I cannot imagine a more unfortunate juxtaposition.
The MoD has to understand that if it wants a solution to this problem, that must come out of its own resources. It cannot come from this scheme. When I first realised this, simply on the grounds that I did not know the answer I tabled my strange Amendment 47, which says that we have a problem for which we need an answer, and that we must find it when we get a sensible dialogue going with the MoD—which may or may not start tomorrow morning.
There are two other big problems with the MoD. First, it will have a hugely high percentage of what I call the household contamination problem. The sailors and workers will have gone home at night to their wives with their dirty washing from working in the boiler rooms of the intensely asbestos-lagged warships. We are going to have a huge problem of a different nature there.
Secondly, the MoD cannot run an insurance industry-based solution because it cannot insure its ships or people; that has to come from a different pot and a different source. It is absolutely unacceptable that we do not have a solution for the sailors in parallel with this, but it is not going to be compatible with this Bill. Forgive me for having put the clause in, which is completely wrong and irrelevant, but it really is a desperate call: we have got to have something instead. I want to put a marker down that the whole House must work towards this.
We must be totally intolerant of any fudge that does not give the Navy a fair deal. There are far too many affected persons out there. The way to get the MoD really interested in this is to threaten to write to the Queen and tell her how many of her crew of Royal Yacht “Britannia” have been killed by it. That will get the MoD’s undivided attention. I will continue to run that one.
I will withdraw my amendment as it stands, quite clearly, because I cannot run it here. I just wanted to leave it there for the moment. It is a hole into which I have got to get something put before we are through with this.
Lord Alton of Liverpool
My Lords, briefly, I support the two speeches which have just been made, not least because I agree with the noble Lord, Lord James, that there are other groups of people outside the scope of this Bill who are clearly looking to the Minister, who has done such a good job for this group of people: the 300 or so of the 2,200 who have unmet claims. He has done such a good job in dealing with this that there is the raised hope and expectation that other groups, whether they are in our Armed Forces or other groups entirely—such as those who have suffered from asbestos-related diseases of the kind to which the noble Lord, Lord Howarth, referred in his remarks—who will also be hoping that the noble Lord will in due course be able to come forward with other measures that might to meet some of those hopes and expectations.
I feel some sympathy with the Minister in this situation. I think it was William Wilberforce who was criticised by William Hazlitt for not dealing with problems of children who were being sent down into the mines; it would take Lord Shaftesbury to do that in due course. One of those who was defending Wilberforce, I think it was Henry Thornton, said it was rather like criticising Christopher Columbus for discovering the United States but also for not going on to discover Australia and New Zealand as well. The Minister is in that slightly invidious position at the moment. People will unfairly criticise him for not solving all the problems of the whole of mankind. What he is doing in the context of this Bill is incredibly noteworthy and all of us pay tribute to him for that. However, he should not neglect the points made by the two noble Lords, because they were well made and these amendments raise the point that there will be unfinished business even once this Bill has passed into law.
Lord James of Blackheath
Perhaps I may ask the Minister if he will have a meeting with me after I have been to the MoD so that I can get his advice and guidance on what to do next?
Lord McKenzie of Luton
My Lords, our Amendment 46 is in this group. I will say at the start that I thoroughly support the amendments of my noble friend Lord Howarth. I agree with the noble Lord, Lord Alton, that the Minister has almost made a rod for his own back in raising hopes and expectations. Those are challenges that he will have to face, and I am sure he is well up to the task. The noble Lord, Lord James, should not apologise for having brought forward his amendment. He is right to say that what he seeks is not an insurance-based solution, but there are issues around inviting comparisons with the progress that has been made.
As we have discussed, the payments scheme relates to those diagnosed with diffuse mesothelioma. It therefore excludes other asbestos-related diseases such as asbestos-related lung cancer and asbestosis. It also excludes other work-related, non-asbestos diseases such as pneuomoconiosis. The DWP’s June 2013 analysis quotes the HSE data on industrial diseases, which has an annual estimate of sufferers of asbestos-related diseases of some 3,500—that excludes those suffering from mesothelioma—and of non-asbestos-related industrial diseases of some 4,200. Many of these will face the same problem in identifying a negligent employer, or an employer liability insurer. The DWP’s June note acknowledges that many of the diseases covered do not share the same characteristics as mesothelioma, and that their severity and progression may vary, depending on the heaviness of exposure to asbestos.
It also highlights the fact that, for example, only a small proportion of asbestos-related lung cancers are compensated through government schemes, because of the range of different causes of lung cancer that mask an asbestos cause. Notwithstanding this, and perhaps somewhat strangely, in computing the effect of extending the scheme, it has been assumed in the data that the same proportion of those with diffuse mesothelioma who can access the scheme proposed by the Bill will be able to access an extended scheme, that the same level of scheme payment will be received, and that the same amount of benefit will be recovered. Those are fairly broad-brush assumptions, to say the least. In resisting the amendment, the Minister will doubtless point to the costs of bringing forward an extension of the scheme. On the basis of their estimates over a 10-year period, they suggest that there will be 5,100 successful applicants for other asbestos-related diseases, and 6,100 non-asbestos work-related diseases. There will be an additional levy on insurers of £478 million and £564 million respectively.
At face value, the figures are shocking. It is not so much the amounts as the suggestion that over 10 years, some 11,200 people will miss out. By how much will depend on benefit recovery arrangements, but they could miss out to the tune of £1 billion. If the concentration were just on the other asbestos-related diseases, not expanding the scheme will deny 5,100 people, who will miss out just because an employer has gone out of business or cannot be located and a relevant insurer cannot be established.
The amendment requires the Secretary of State to bring forward proposals within a year to establish other schemes to cover these other diseases. On reflection, limiting this to diseases covered by the 1979 Act may not be the most appropriate approach, and we might seek a different definition on Report. We have been clear that we do not want the pursuit of broader coverage to hold up the scheme of diffuse mesothelioma, and there is no reason why acceptance of the amendment, or my noble friend’s variations, should cause this to happen. It is accepted that it will be difficult to graft on to the mesothelioma scheme the tariff approach, given the varying degrees of suffering that some of the other diseases entail, and that there may be convoluted issues around causation. Therefore, while continuing to acknowledge the merits of the mesothelioma scheme, we should no longer look aside from those people—many thousands on the Government’s own figures—who face terrible suffering because of the negligence or breach of statutory duty of an employer. This is all the more important where access to the state lump sum and social security support is more difficult, as it is for some.
The Minister has come thus far and we have supported and congratulated him on doing so. Indeed, he has expressed sympathy for a broader scheme. Accepting the thrust of these amendments would add to that journey, which I beg him to undertake.
Lord Freud
My Lords, I thank the noble Lord for these amendments, and clearly I am sympathetic to the desire to provide for as many people as possible. Let me deal with the amendments tabled by the noble Lords, Lord Howarth and Lord McKenzie, and the noble Baroness, Lady Sherlock, in the first instance, and then perhaps I may turn to the amendment tabled by my noble friend Lord James regarding members of the Armed Forces.
I recognise the wish to provide for other groups of people who fall foul of poor record-keeping by the insurance industry and so cannot bring a claim for civil damages. There could be another scheme for these people in the future, but as the noble Lord, Lord McKenzie, has just acknowledged, it cannot and will not be this particular scheme. It is neither possible nor realistic to extend it in this way, and that is the reason I must reject these amendments.
The remit of the Bill is strictly related to mesothelioma. However, like many noble Lords, I hope that the momentum generated by this legislation will not dissipate and that further work will be done in the future. Perhaps I may explain why we cannot be flexible on this. I should start by reminding noble Lords about the distinctive characteristics of mesothelioma. The Bill allows for a relatively straightforward and quick scheme to be established. The key points are mesothelioma’s undeniable link to asbestos exposure and lack of co-causality with other factors such as smoking. The unique elements of diffuse mesothelioma allow us to establish a tariff payment scheme of this nature. A streamlined scheme like this would not work for other long-tail diseases. The law of causation is favourable to mesothelioma victims in the sense that it is an indivisible injury. It does not matter who exposed the victim or how many people exposed him, they will all be jointly and severally liable for the same damage. This allows for simplicity when assessing whether someone is eligible for a payment. Assessing liability for other diseases where the causation rules are not the same would involve a degree of complexity that this scheme has not been designed to allow for.
I join noble Lords in their hope that, in the future, other people will be provided for. Until such time, there remain state payments that sufferers of other long-tail diseases can apply for, such as payments made under the 1979 and 2008 Acts. I hope that I have explained and made it clear why this scheme will succeed only if it deals exclusively with mesothelioma, and I urge the noble Lord to withdraw his amendment.
Let me now turn my attention to the amendment tabled by my noble friend Lord James of Blackheath regarding the creation of a scheme to cover retired or current members of the Armed Forces who were exposed to asbestos and have since developed a related disease. I should clarify that, when I denied the 10 o’clock meeting, one of my representatives sitting behind me today will be at that meeting, and so I will be given good intelligence on what happens.
Lord James of Blackheath
Can we have an indication by paw of who will be attending the meeting?
Lord Freud
The paw has been raised. I am more than happy to hold a meeting with the noble Lord after that meeting if he so desires.
Lord James of Blackheath
The noble Lord is taking a big risk in sending the best looking member of his staff to the Navy.
Lord Freud
The noble Lord must be very careful about making remarks like that. I think that we should strike them from the record.
The noble Lord was clearly referring in particular to those working in the boiler rooms of those three ships—HMS “Britannia”, HMS “Furious” and HMS “Albion”—a great many of whom would have been exposed to asbestos during the course of their service. We all in this Committee, I know, are deeply sympathetic to a tragic situation. However, as the noble Lord acknowledges, it is not possible for this Bill to be the solution for that, mainly because the MoD was not and is not covered by employer liability insurance. It would not be appropriate to raise finds for such a scheme from the employer liability insurance markets; they are entirely different issues. I know that the noble Lord has particular issues with the arrangements which the MoD has in place for compensation, so I will not go into those. They are dealt with by the MoD and I suspect that they will be the subject of conversation tomorrow.
Lord Alton of Liverpool
Before the Minister goes any further on that, would he accept that there is a parallel between people who slipped through the insurance arrangements for people with mesothelioma—and for whom there is therefore no known legal authority and so the Bill has been brought forward to plug that gap—and servicemen who have also fallen through a gap because there is no liability accepted by the Ministry of Defence and no insurance arrangements in place for them either? In parallel with this scheme, surely we should at least accept a moral responsibility for the obligations of the Government to people serving in our Armed Forces and risking their lives in the service of this nation, and therefore accept that it should in due course be met. Can the Minister at least tell us how many people are in those groups to which he has just alluded?
Lord Freud
My intelligence on this comes from my noble friend Lord James, who told me that the estimate was 300 people. However, I stand to be corrected by him.
Lord James of Blackheath
The provisional estimate is up to 300 dead already and 180 contaminated. However, the figure we need to be concerned about is the number of wives who have got it, too.
Lord Freud
The noble Lord has put that on the record. Clearly, there is a difference in the sense that the MoD as a public authority does not use employer liability; it effectively self-insures. The noble Lord is concerned about the terms of when it pays compensation; I know that he is looking to address that issue with the MoD.
I share the concern of noble Lords in the Committee to help to provide for as many people as possible who have a terrible disease through absolutely no fault of their own. However, this scheme is addressed precisely at one part of that. It is not stretchable in that way.
Lord McKenzie of Luton
My Lords, I do not think that anybody is suggesting that we should stretch the scheme in the Bill to encompass other arrangements. Certainly, however, Amendment 46 would require a commitment from the Government that they will bring before Parliament within a period of time other arrangements to deal with these other situations. It is accepted that it cannot be readily grafted on to the existing diffuse mesothelioma scheme for the reasons that the Minister has advanced. We are looking for the commitment to saying, “Let us move on and bring forward a scheme or schemes to deal with these other issues”.
Lord Freud
Regrettably, I am not in a position to make any kind of commitment along those lines. We responded to the consultation document which the noble Lord, Lord McKenzie, launched, and our considered view was that this was the most urgent thing to tackle. That is the only commitment that I am in a position to make today. Having urged other noble Lords to withdraw or not to press their amendments, I ask the noble Lord, Lord James, not to press his amendment either.
Lord James of Blackheath
For the sake of accuracy, I will just correct the figures to this extent. The Navy’s figures include subcontracted staff in naval ports.
Lord Howarth of Newport
My Lords, I am very grateful to my noble friend Lord McKenzie for laying out the case in his customarily lucid and reasonable style. I strongly support Amendment 46, in his name, which wisely would require the Secretary of State to set out his plans to establish further analogous schemes within a year.
We will come back to the Minister’s refusal to contemplate doing that in a moment, but I will just comment on Amendment 47, concerning the Armed Forces, in the name of the noble Lord, Lord James of Blackheath. He has raised a massively important issue. Our concern has to be not only for sailors, for people doing highly skilled labouring jobs in naval dockyards and for other members of the armed services, but for people who could well have been directly employed by government in a whole host of other fields in publicly owned facilities of one kind or another, including of course civil servants. The Government self-insure, and there must be an employer’s liability in that situation. I cannot see how it could possibly be otherwise. Perfectly understandably, the Government do not go to the insurance market to take out employer’s liability insurance but absorb the risk themselves.
I can well understand that the Ministry of Defence has form and has sought, over many years, to resist what many very well informed people consider to be well founded claims for compensation against the Ministry of Defence. It digs in and goes into the trenches. However, there must be a strong case—not only a moral case, as the noble Lord, Lord Alton, very powerfully suggested, but, I would have thought, a strong legal case. The difficulty, presumably, is that potential claimants do not have the confidence to take on the MoD because it has infinite resources with which to defend itself in those trenches.
The noble Lord, Lord Alton, compared the Minister to William Wilberforce. The persuasive powers and techniques of the noble Lord, Lord Alton, are legendary, but I would join him more prosaically in simply encouraging the Minister not only to receive a report on the important meeting that is due tomorrow but to pursue this matter strenuously. I do not know whether the Bill would permit an amendment to be incorporated that was designed to achieve the purposes of the noble Lord, Lord James of Blackheath, with this amendment. However, I hope the Minister will do his very best to ensure that some such amendment is included.
This brings me back to my own amendments, which the Minister resisted despite saying that he was sympathetic to their purpose. How could he not be considering that he went so far at Second Reading? I assume that if the department was going to do the work to produce the estimates document to which I and others have drawn attention, it must be because it sees that there is a strong case for establishing other schemes in the future for other long-latency asbestos-related diseases.
I now know that this is his technique in debate, but the Minister has set up another Aunt Sally, as my noble friend Lord McKenzie spotted. He sought to interpret the purport of my amendments and my remarks as being that we have to stretch the mesothelioma scheme to encompass the payment of compensation in relation to these other diseases. That, of course, is not at all what I said. Amendment 40 would insert,
“or any other scheme established under this legislation”.
Amendment 45 says:
“The Secretary of State may by regulation establish other schemes in relation to other … diseases”.
I am not at all saying that the mesothelioma scheme should be expanded, inflated or stretched to do what he said. I am saying that, to the extent that the Bill clearly does not confer the powers requisite, we ought to amend it so that it would be possible to establish other schemes analogous to the diffuse mesothelioma payment scheme in future. This does not cost the Treasury a penny, and I cannot see what the conceivable difficulty should be. The Minister has given no reason why this should not be done.
Lord Freud
I apologise if I abused the Aunt Sally—if I did so, I did so unintentionally. I want to make absolutely clear that we have had recommendations from the Delegated Powers Committee that we are obviously taking with great seriousness. One of the two big recommendations is resisting widening this Bill in the context of the technical committee. The noble Lord in this amendment goes directly against the thrust of the Delegated Powers Committee, which said we should keep this specific rather than giving wider, extra powers to the Secretary of State. I neglected to put my finger on that point, but it is a substantial one for that amendment.
Lord McKenzie of Luton
If my noble friend will allow, is that a fair representation of what the Delegated Powers Committee said? I thought its point was that, in the context of this Bill, the reference to other kinds of disease or bodily injury when it referred specifically to a definition of a potential insurance claimant was too broad and could be made more specific. Indeed, if the noble Lord felt able to adopt one or more of the amendments before him, that would tie nicely in with that. I did not think the committee’s point was that a broader reference was inherently inconsistent with the Bill, simply that the specifics of this clause were not specific enough to identify the other kinds of disease that might be involved. If the problem is not being specific about the other types of disease that ought to be covered by the scheme, that could be rectified quite readily by drafting. Would the Minister be more comfortable with that?
Lord Freud
Perhaps I have opened up a completely new front. I am reluctant to go into that specifically. The point is that we are trying to draw up a specific scheme in this legislation. We would be most reluctant about other schemes with other rules having powers in secondary legislation, whether or not the Delegated Powers Committee were on the same page. I will resist; I cannot do that.
Lord Howarth of Newport
I am grateful to the Minister for his explanation. I yield to no one in my respect for the Delegated Powers and Regulatory Reform Committee, which does extremely valuable work in ensuring that the Government do not take outsized powers of a rather generalised nature when they present legislation to Parliament. However, I am not sure that an argument put forward by the Delegated Powers Committee on the proposed technical committee would have a bearing on whether it would be appropriate to take the opportunity of this scheme to make provision in primary legislation to be able in due course by regulation to establish further schemes that would be on the same model as Parliament will have approved in the primary legislation for the diffuse mesothelioma payment scheme, and which would of course have to be legislated in their specifics by way of regulation—as is quite explicitly stipulated in my Amendment 45.
I do not know what the Minister had in mind when he addressed the House at Second Reading and said that schemes to deal with these other terrible diseases should be brought forward, and that there were situations that needed to be addressed. If he was saying that he hoped he would have the opportunity to bring forward a Bill of one sort, then another and then another after that to establish further schemes, he must have known that that was not realistic. To secure legislative time is always a considerable problem, and I am afraid it would be pretty improbable that we would have the opportunity to embark on fresh primary legislation to repeat the process that we are going through now to create the mesothelioma scheme. Therefore, I can see no difficulty of principle that ought to deter us from amending the Bill to provide a clear legal base for establishing other schemes, so that it could accommodate the principle that the Secretary of State could by regulation establish further analogous schemes. In the mean time, I beg leave to withdraw the amendment.
Lord Howarth of Newport
“Report on record keeping by insurers
The Secretary of State shall establish a commission to examine and report within one year of enactment on the history of record keeping by insurers who have provided cover against employers’ liability for mesothelioma and other long-latency asbestos-related diseases.”
Lord Howarth of Newport
My Lords, the Committee will be relieved to know that this is the last amendment in my name, at least in Committee. It will introduce into the Bill a new clause to require that the Secretary of State commissions a report on the history of record-keeping by liability insurers. We are legislating for the scheme precisely because the insurance records are missing in a significant proportion of mesothelioma cases. It would be helpful if the Minister were able to give us figures on that. What proportion of mesothelioma sufferers who contracted the disease as a consequence of employer negligence will have to have recourse to the scheme because the documentation for their insurance has gone missing?
In its publications, the department has taken a bland tone on the matter. It has talked of poor record-keeping. In his speech at Second Reading, the Minister was restrained in his language. In Committee, too, he has been studiedly non-judgmental. He has spoken a number of times of “market failure”. He did so far unbutton himself at Second Reading as to speak of,
“a terribly damaging market failure”.—[Official Report, 20/5/13; col. 692.]
In Committee, he has urged noble Lords not to allow emotion to cloud pragmatism, nor allow moral indignation to frustrate practicality. He may be wise in those admonitions. However, I will say—very quietly, not in a sermonising tone but recording what I believe to be a matter of fact—that we are dealing with a major scandal.
At Second Reading, the Minister said that he hoped that noble Lords would agree that,
“the principles driving the Bill are right and just”.—[Official Report, 20/5/13; col. 692.]
He allowed himself to take a moral tone there. I put it to the Committee that justice entails not just making payments under the scheme that is proposed, but exposing wrongdoing and exacting punishment where there has been breach of contract or where criminality is in evidence.
Lord James of Blackheath
I might be able to ease the noble Lord’s concern on this. I believe that when the major reinsurances were written, they were limited as to the dates when an infection was identified and the reinsurance applied only to the names of those who had a registered claim at that time. That was all that was relevant for a claim; there is no question about that. Lloyd’s of London did not buy its first computer until 1986. It has nothing that goes back to this period.
Lord Howarth of Newport
I am always disposed to defer to the noble Lord as he has a depth of knowledge on this matter that I do not think is matched by the rest of the Committee. However, if Lloyd’s of London did not get a computer until a rather late date in the history of that august market, it none the less had brown cardboard files. It seems to me that strong procedural safeguards and impeccable record-keeping are always central to the upholding of property rights and the protection of people who enter into contracts. I cannot see how employer’s liability insurers at any phase of their history could ever have been justified in allowing the documents to disappear. There might have been a fire in the warehouse but we have not been told that there has been such a fire at any of these insurers. Other than in an extraordinary circumstance of that kind, it must be normal and basic practice to keep the documentation and to pass it on to the successor insurers and reinsurers. I cannot see how anything else could have been appropriate.
We are looking here at a spectrum of wrongdoing that runs from inefficiency and muddle through negligence to, very possibly, deliberate criminality in some places. Indeed, the scale on which the documentation has gone missing suggests that there could have been widespread criminal intention on the part of some people in an earlier generation of insurers. I say “an earlier generation”; they may no longer be active in the market but many of them may still be extant as individuals.
Another recent major scandal has occurred in terms of record-keeping. I refer to the sub-prime lenders in their Gadarene rush towards 2008. The banks, in issuing huge numbers of mortgages and eagerly selling them on, took to neglecting procedural safeguards. The combination of disregard for procedural safeguards with fraudulence led to the catastrophe of 2008 and in the years following, from which we continue to suffer. It reached a point where, with millions of mortgages in default, the banks abandoned the attempt to examine individual documentation to certify that a particular person owed a certain amount of money on a mortgage, which was the asset being sold on, and took to what was known in the trade as “robo-signing”. Instead of examining the individual records, they hired a person simply to sign masses of these documents without even examining the records.
The temptation for businesses not to keep full, accurate and proper records when it is convenient to do so clearly can be very great. We do not suppose—I do not think we do; I certainly do not—that the banks which were guilty of that systematic failure of proper record-keeping should be able to walk away from the scene of what they did and just get away with funding a token scheme. Equally, it seems to me that in the interests of justice and for exemplary purposes, there should be a proper investigation of what went wrong with the employer’s liability insurers. Of course, ELTO has been created and that improves the methodology of tracing claims and liability. However, a disastrous failure has occurred in this regard for a great many people. As I say, it seems to me that this is a major scandal. That is the reason why I have tabled Amendment 43—to require the Secretary of State to establish a commission to investigate and report on what happened in this history of inadequate record-keeping, which I do not think anything can possibly have justified. I beg to move.
Lord Freud
My Lords, the noble Lord has tabled this amendment to require that investigations be made into the record-keeping practice in the insurance industry which, to put it no more brusquely, we know has been insufficient in the past. It would also require us to legislate to protect those who cannot bring a claim against an employer or insurer because the records have not been traced.
I sympathise with the aim behind this amendment, which is to bring those culpable to account. Unfortunately, what we already know about record-keeping practices tells me that this simply will not be possible and that any investigation of this sort would be a costly addition to the scheme. One of the things of which the noble Lord may not have been aware, and inevitably would not have been aware of when he put down this amendment, is that on 4 June the FCA published details of its requirements for employer liability insurers to undertake effective searches for historic policies. Moreover, the employer liability tracing office, ELTO, is currently undertaking an audit of the record keeping of its 150 or so members, including Equitas. The number affected by the issue of records that were destroyed is broadly 300 out of the 2,400 people with relevant mesothelioma per year, which implies that one in eight cases is untraced—that is the proportion of the problem.
I hope that noble Lords will understand that we want to ensure that the maximum amount of funds possible go to helping those eligible people who come to the scheme and therefore there is not the flexibility to put resources into potentially costly investigations such as these. I have already spoken to noble Lords about the exercise that I conducted into what was likely to be available on a historic basis, and we already have measures to improve tracing. On that basis, I urge the noble Lord to withdraw this amendment.
Lord Howarth of Newport
I am glad that the Minister sympathises with my aim in tabling this amendment. I am sorry, however, that he thinks an investigation of the kind that the amendment would require is not practical. I think it depends on how important people think it is to do the detective work. Of course, it is not within the resources of his own department and I think it would be difficult for the employer’s liability insurers themselves to meet the full cost of this.
However, if we consider that an inexcusable series of abuses has occurred, I cannot see that it is right to allow those who perpetrated these abuses simply to get away with it. If as many as one in eight cases of insured people are untraceable, then something is going wrong on a very big scale indeed. It cannot be satisfactory to leave it at that. The noble Lord gives me a modicum of encouragement in telling me that from now on the FCA is going to intensify the requirements for effective search and that ELTO is going to audit its members. However, if we accept the position as stated by the Minister just now, we will be saying in effect that those generations of people in the insurance market who did not take the basic duty of care that they should have done in relation to the documentation of people who turned out to have contracted this most terrible of diseases should get away with it, I think we should be ashamed of ourselves. I will not say any more about this today and I beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, I wish to be brief and I am slightly hesitant about whether I should move the amendment. It was pressed on us by ACOR. It concerns the definition of dependants, and the suggestion is that rather than live with the definition we have, which I think is based on what is set out in the 1979 Act, we should pick up the definition used in the Damages (Scotland) Act 2011, which ACOR suggests is fairer, more flexible and less prescriptive. It includes, for example, siblings, grandparents and grandchildren. It seems to me that this can cut both ways. The wider the group of dependants, the less each will get, although the wider the group, the more likely it is that a dependant will be spotted and available to benefit. On balance, living with the existing definition is probably the better route, but perhaps the Minister will give us the benefit of his wisdom. I beg to move.
Lord Freud
My Lords, I think I will treat this as an extremely probing amendment, and in that spirit I am happy to go through our thinking; indeed, there is some value in doing so. The amendment seeks to replace the definition from the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 that we have used in the Bill with the definition of “relative” set out in Section 14 of the Damages (Scotland) Act 2011.
The definition in the 1979 Act provides an order of priority and is not just a straightforward list. In other words, the first dependant on the list is a spouse or civil partner and it is that person, if they exist, who must make the application for a scheme payment. If there is no spouse, the next on the list is a child or children and they must make the application, and so on. The scheme payment would then be made to that applicant or applicants, and it would be up to those applicants if they wanted to share the scheme payment with any other relatives further down the list.
The definition in the 2011 Act is a straightforward list. The effect of the amendment would be that anyone on the list may make an application for a scheme payment. The 2011 list includes some relatives who are not defined as dependants in the 1979 Act. They are uncles, aunts, nephews, nieces, cousins, and former spouses or civil partners. If all these people make an application for a scheme payment, the payment made in accordance with regulations under Clause 4 under the scheme must be divided equally between them. It is right that there is a hierarchy of those who can make an application for a scheme payment as it provides certainty to those who may want to make such an application, and certainty to those administering the scheme who would not be in a position to identify all the other relatives who might want to make an application.
Most applications for a scheme payment are likely to be made by a surviving spouse or civil partner. In these cases, the amendment would dilute the amount available to that spouse or civil partner by compelling the scheme payment to be divided up between other relatives who are less close, either legally or by blood, to the deceased person with mesothelioma. That could mean that a former spouse or cousin, for example, would receive the same amount as the current spouse. Without the amendment, the current spouse would receive the whole payment. I do not think that it is right that a scheme payment should be divided up in this way so that those closer to the deceased person with mesothelioma would receive less in order that a proportion could be paid to more distant relatives.
I can tell that the noble Lord was already concerned about the effects of the amendment. With this explanation, I hope that he will be encouraged to withdraw it and that we will perhaps not see it again.
Lord McKenzie of Luton
My Lords, I thank the Minister for his explanation of and response to the amendment. I beg leave to withdraw it, and I can assure him that he will not see it again; not from us, anyway.
House of Lords
Airports: London
(11 years, 6 months ago)
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Lord Spicer
To ask Her Majesty’s Government whether they plan to expedite the announcement of their policy on the future of London airports.
Earl Attlee
My Lords, the long-term question of aviation capacity is a matter of national importance. It is vital that the Airports Commission has sufficient time to carry out a thorough investigation of the options, and to build consensus around its long-term recommendations. The timetable set for its final report, by the summer of 2015, will allow this to take place, and will enable a stable, long-term solution to be found.
Lord Spicer
My Lords, does not the recommendation in the report of the Transport Select Committee that a rapid decision be made in the go-ahead for a third runway at Heathrow count for anything?
Earl Attlee
My Lords, we welcome the report of the Transport Select Committee but do not necessarily agree with all its conclusions. It is important that we have a solution that will withstand a change of government. The Crossrail and HS2 projects can withstand a change of government. We need a policy for Heathrow and the London hub that can also withstand a change of government.
Lord Soley
The noble Earl wants a thorough inquiry, but we have been having thorough inquiries since the Maplin inquiry, which was about 50 years ago, so it would be quite nice if we could finish this. Had the Government taken on board the last Government’s position, we would be there now, which would be helpful. I put it to the Minister that there is a danger of an unconsidered policy developing on this, since we now have six London airports with seven runways—or seven airports, if you include the newly renamed London Oxford Airport. I do not know how far this is going to go on until we actually get a proper policy.
Earl Attlee
The noble Lord knows very well that the issue is not about point-to-point capacity with the various London airports; it is about hub capacity.
Lord Bradshaw
On the subject of hub capacity, is it not relevant to think in terms of which airlines bring people into Heathrow who require the access to a hub? Many airports cater for people who are coming to the United Kingdom for short or long stays, and they do not need to interline. The announcement this morning of Birmingham Airport’s massive expansion, and the fact that it is going to be 35 minutes from the centre of London, should also be taken into account.
Earl Attlee
My noble friend makes many very good points, and I am sure that the Airport Commission will take them into consideration.
Lord Clinton-Davis
I speak as the life president of BALPA. The inordinate delay in making a decision about the siting of a major airport in London can only result in benefiting Amsterdam, Paris and Frankfurt. Any alternative to Heathrow is bound to take a huge amount of time to come into operation, whereas Heathrow, properly adapted, is ready now. Is it not the most obvious choice for any Government to enable them to make a speedy decision, which will not result in giving an advantage to other airports in Europe?
Earl Attlee
My Lords, Heathrow has one fundamental disadvantage: there are 220,000 who live within the 57 decibel noise contour, making it a very difficult problem to overcome.
Lord Mawhinney
My Lords, in his initial Answer, my noble friend talked about the importance of taking three years over this and the fact that a decision would not come until just after the next general election. Is he aware that the Government, who keep pressing for more economic growth, are in danger of being charged with dithering, given that a speedy resolution to this will do more to promote economic growth than many of the other things that we all read about in the newspapers?
Earl Attlee
My Lords, there is no point in making a decision that will not stand a change in government.
Baroness McIntosh of Hudnall
My Lords, does the noble Earl agree that one of the difficulties of this open-ended discussion, which has, as my noble friend Lord Soley has said many times, been going on for a very long time, is that a lot of areas are under constant threat and the blight that occurs in them is very damaging to the communities that live there? Is it possible for the Government at least to start ruling some things out, rather than leaving every option on the table?
Earl Attlee
As usual, the noble Baroness makes a very good point. The Airports Commission has been charged with reporting by December this year to rule out certain options.
Lord Higgins
Given that the legislation for a hub at Maplin Sands went through with comparatively few problems back in the mid-1970s, is there not a case for looking at that site again?
Earl Attlee
My Lords, the Airports Commission will look at all sites including Maplin Sands or the Thames Estuary airport, and will then come up with a shortlist of which options need to be looked at in greater detail.
Lord Davies of Oldham
The Minister has shown great sagacity in indicating that there may be a change in government. His answers thus far have indicated that one of the two parties that form the coalition votes on one great negative—namely, no to the third runway at Heathrow—and intends to present itself before the next election with absolutely no advance in policy whatever.
Earl Attlee
It was the party opposite that came up with a policy for a third runway at Heathrow with no consensus and therefore it did not survive a change in government.
Lord Oxburgh
My Lords, can the Minister assure the House that any decision on the future of London’s airports will be taken in the light of a coherent and integrated transport policy for this country, involving both rail and road?
Earl Attlee
Absolutely, my Lords. The Airports Commission is charged with taking that into consideration, particularly as regards rail connectivity.
Lord Richard
The Minister does not exactly give the impression of a Government who are anxious to find a speedy solution to this problem. He keeps saying that the policy has to survive the next election. What consultative processes does he have in place for trying to ensure that it will survive the next election? Is he, for example, discussing it with other parties?
Earl Attlee
My Lords, currently it is planned that the final report of the Airports Commission will come out after the next election. Of course, the noble Lord, Lord Davies of Oldham, and I could have a chat before the next election but, even though he and I have solved a lot of problems together and we have rarely needed to seek the opinion of the House, I suspect that this matter will be far beyond our pay grade to determine.
Egypt
(11 years, 6 months ago)
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Baroness Cox
To ask Her Majesty’s Government what is their assessment of the situation of religious minorities in Egypt since the Arab Spring.
Lord Wallace of Saltaire
My Lords, Egypt has witnessed an upsurge in sectarian violence during the transition period. Foreign Office Ministers have been clear throughout the events in Egypt that have taken place since the revolution that the freedom of religious belief needs to be protected and that the ability to worship in peace is a vital component of a democratic society. We continue to urge the Egyptian authorities to promote religious tolerance and to revisit policies that discriminate against anyone on the basis of their religion. We are also in contact with representatives of the Coptic Church and other religious groups.
Baroness Cox
My Lords, I thank the Minister for his sympathetic reply. Is he aware that since the downfall of President Mubarak there have been attacks on Sufi shrines, the marginalisation of the Baha’is, hostility towards Muslim secularists and a massive escalation of assaults on Christian communities, including the Coptic cathedral, when security forces stood by doing nothing to deter the violence? In what specific ways have Her Majesty’s Government encouraged the Egyptian Government to create an environment of social cohesion, reduce tensions and promote mutual respect between adherents of different faiths so that they can live together as equal citizens in a nation that recognises their rights and values their citizenship?
Lord Wallace of Saltaire
My Lords, as we all know, it has not been an easy transition, and one could add to the noble Baroness’s list new laws that limit the role of NGOs and their ability to accept foreign funding, arrests of bloggers and restrictions on the freedom of the media. It is a messy transition, which is not entirely surprising given how long the authoritarian Government of Egypt had been in effect and given also the internal divide between a relatively liberal urban elite and a much more conservative peasant class from outside Cairo. We have intervened on a number of occasions. My noble friend Lady Warsi made a major speech at the organisation of Islamic states conference on the importance of freedom of religion and belief, and my honourable friend and colleague, Alistair Burt, has spoken to the Egyptian Government several times in Cairo and elsewhere on the importance of respect for minority rights of all sorts.
Lord Boateng
How are the lessons from Egypt being applied to Syria? Given the plight of Christian refugees in the region since the rebellion in that country, it is not clear how the removal of the arms embargo actually assists the development of a free and multifaith, tolerant Middle East.
Lord Wallace of Saltaire
That is a huge question. A free and tolerant Middle East is something that we would all love to have. At present, in Iraq as well as in Syria and a number of other countries, the question of religious minorities, be they Muslim or non-Muslim, is very much in play. We know that the conflict between what one might call moderate Sunnis and Salafi Sunnis is also acute. We do what we can, and I have to say that Muslim leaders in this country also do what they can, to influence the debate, but we recognise that the Middle East is in turmoil. Coming out of this very long period of authoritarian regimes does not make it easy to change habits immediately.
Baroness Hussein-Ece
My Lords, in Egypt the use of defamation laws to lock up people on supposed religious grounds has increased, and Article 44 of the constitution bans blasphemy. What actions are Her Majesty’s Government taking in the UN Human Rights Council in Geneva to ask the Egyptians to look again at these provisions?
Lord Wallace of Saltaire
My Lords, we are working through a number of multilateral and bilateral channels to argue to the Egyptian Government that they need to have a much more open attitude towards minority opinion of all sorts. Article 44, as the noble Baroness rightly says, prohibits blasphemy, but Article 45 advocates freedom of speech. Given the continuing conflict about the role of the judiciary in Egypt, it will take some time for the new Egyptian constitution to be applied in full.
The Lord Bishop of Ripon and Leeds
My Lords, will the Minister confirm that freedom of religion involves the right to change one’s religious beliefs and that Egypt and other nations need to be pressed to ensure that those who change their religious affiliations are defended in doing so? How far are the Government able to put pressure on countries to ensure that blasphemy laws do not prevent that happening?
Lord Wallace of Saltaire
My Lords, religious tolerance is something that we in the United Kingdom learnt about the hard way through religious persecution. We have to argue as vigorously as we can to all other countries that religious tolerance between a whole range of different religions is highly desirable in the development of an open and stable society.
Baroness Symons of Vernham Dean
My Lords, the Government are about to host the G8 conference and much of it will be focused on the Deauville partnership about Arab countries in transition. To revert to the specific question raised by my noble friend Lady Cox, in hosting the G8, will the Government take any specific initiatives to progress religious tolerance?
Lord Wallace of Saltaire
At the moment, I am not aware of the Government’s preparations for the G8 in this area. I shall feed that back to the Government and see what they can do.
Baroness Afshar
My Lords, is not the real problem that by focusing on faith as a means of the political arrangement in the Middle East—in Israel, in Egypt and in all areas—we are coming to the dangerous point of fanaticism taking over? People are doing things in the name of faith. Would it not be a good idea to demand of nations not to take their faith as a parameter of government? I speak about Iran as well as Israel and other countries.
Lord Wallace of Saltaire
One has to demand that of people as well as of nations. As we know, there are moderate people of faith and extremist people of faith in almost all religions one can think of, sadly, including Buddhism. We all have to work actively to promote a moderate version of faith. I am a member of the Church of England and as a Christian I have always regarded St Thomas as my favourite saint because he doubted.
Medicine: Experimental Drugs
(11 years, 6 months ago)
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Baroness Gardner of Parkes
To ask Her Majesty’s Government whether they will enable the use of new experimental drugs by terminally ill patients who are prepared to waive their right to sue pharmaceutical companies in order to assist the development of new drugs and ease their own condition.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, there are existing provisions under medicines legislation for access to unlicensed medicines without requiring changes to the law. The Government are committed to ensuring access to new and promising medicines for patients while ensuring that medicines continue to meet high standards of safety, efficacy and quality. This is why the Government have been taking forward work on an early access scheme, adaptive licensing and promotion of clinical trials in the UK.
Baroness Gardner of Parkes
I welcome that Answer as it means that many valuable drugs might come to the market much earlier and be available for patients. Does the Minister agree that many elderly patients with a terminal condition will definitely get treatment that they may not particularly want themselves but that hope is terribly important in all our lives? Any of the new, experimental drugs can provide this valuable ingredient of hope to such patients.
Baroness Finlay of Llandaff
My Lords, in light of the proposed EU directive that is being led by MEP Glenis Willmott to facilitate clinical trials and the work done by Empower: Access to Medicine, led by Les Halpin, are the Government working with the Halpin protocol, which aims to overcome the legal barriers—real or perceived—to early access to, and development of, medicine in the UK?
Earl Howe
My Lords, the Medicine and Healthcare Products Regulatory Agency is at the forefront of the negotiations at European level to ensure that the new clinical trials regulation, which will replace the current directive, is much more conducive to companies directing their clinical trials towards Europe, in particular, we hope, the United Kingdom. This needs to happen. The trend over the past 10 years has been in the wrong direction and we want our own market share to increase; there are already signs that it is doing so.
Lord Taverne
The Minister’s Answer is encouraging. Does he agree that if one looks at the possible benefits to patients and the public from avoiding delays and extra costs, to press on with it is a no-brainer?
Lord Campbell-Savours
The Question refers to waiving the right to sue pharmaceutical companies. What is the Minister’s response to that?
Earl Howe
My Lords, there is no need to think in those terms. There are many routes by which patients can access medicines lawfully and maintain their legal rights. We want to make sure that ethics and patient protection continue to be at the forefront of drug development. It would be wrong to give an indication to drug companies that they can throw caution to the winds in that sense.
Baroness Oppenheim-Barnes
It often takes as long as five or six years to develop a new drug. Sometimes, even after that period, when permission has been given, something is found late in the day. Therefore, does the Minister agree that we need to know what sort of period he is thinking of in accepting drugs that have not yet been approved?
Earl Howe
My Lords, this will very much depend on a case-by-case analysis of the drug in question. If there is a very promising new drug that is a breakthrough medicine, where there is no alternative treatment, there may be a case for considering that more favourably than a drug for which there is a readily suitable alternative. As I mentioned earlier, the menu of options available to us, such as an early access scheme for unlicensed medicines and an adaptive licensing scheme within European Union rules for licensed medicines, can perhaps be tailor-made to suit the drug in question.
Lord Patel
Does the Minister agree that there are two separate issues: one is doctors’ and nurses’ ability to prescribe off-label drugs, which is allowed, and for which the doctor takes responsibility; and the second is using a drug that might be promising for treatment and doing research on it, which requires research protocol to be followed? Neither is permissible under current regulations.
Earl Howe
My Lords, the noble Lord is right that the two issues are distinct. It has always been the case that a doctor can, under his or her own professional responsibility, in certain circumstances, prescribe an unlicensed medicine. However, he is also correct that clinical trials need to take place within a framework of proper ethical and organisational approval.
Lord Hunt of Kings Heath
My Lords, I refer to my health interests in the register. Will the introduction of value-based pricing inhibit or encourage early access to new medicines?
Earl Howe
My Lords, the noble Lord will have to wait, I am afraid, for the results of the current discussions that are going on with the pharmaceutical industry about what value-based pricing will look like in the end. Certainly, it is our ambition that the price of a medicine should more fairly reflect its benefit to the patient and society. Therefore, if doctors have greater confidence that those two things apply when they are made aware of the price of the medicine, we certainly hope that uptake will follow.
Health: Midwives
(11 years, 6 months ago)
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Baroness Cumberlege
To ask Her Majesty’s Government what action they are taking to ensure that independent midwives can continue to work with clinical indemnity.
Baroness Cumberlege
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare the interests that are on the Lords’ register and, in this instance, the unremunerative position as patron of Independent Midwives UK.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, a 12-week consultation on the legislation to require regulated healthcare professionals to hold indemnity or insurance closed on 17 May. We are now analysing the responses to assess how the issues might be addressed, including those affecting independent midwives—that is, self-employed individuals in the private sector. This includes consideration of different models of service. Officials are also facilitating meetings between NHS England and representatives of independent midwives to discuss emerging commissioning issues.
Baroness Cumberlege
My Lords, I thank my noble friend for that Answer. On 26 October, when the European directive comes into force, it will preclude around 170 independent midwives from practising, and this at a time when we have a burgeoning baby boom. Many of these midwives actually work within the NHS. Is my noble friend aware that many of these independent midwives are seeking a solution but they require help, advice and support from the department and, above all, a revision of the tariff for maternity services? Will my noble friend ensure that this issue is a priority for urgent action by his colleagues, the Department of Health and the other agencies involved?
Earl Howe
My Lords, as my noble friend knows, work has been going on for a number of years, including going back to the previous Government, to see whether there are viable ways of ensuring that this small group of independent midwives can obtain suitable indemnity or insurance cover. One of the difficulties we have had is the absence of information on the potential barriers to independent midwives moving to alternative governance and delivery practices in order to obtain that cover—hence the consultation I have spoken about. As I said, we are now analysing the responses. However, I do not agree that there is no way through. We know that some independent practitioners have opted for a corporate or social enterprise model as a way of gaining insurance cover. We are trying to understand what the barriers are to that among those who are resisting the idea.
Lord Foulkes of Cumnock
My Lords, why cannot these people just get employment as midwives within the NHS?
Earl Howe
My Lords, some of them already do. As I understand it, we are talking about 154 individuals as compared with 41,000 midwives on the register. If they work for the NHS, there is generally no issue; they will be covered by NHS indemnity in one way or another. The issue is if they wish to practise privately as individuals. That is the point of my noble friend’s Question.
Baroness Jolly
My Lords, there is a certain element of urgency here. A woman expecting her baby in October would be half way through her pregnancy now. What plans are in place to deal with such women under the care of these midwives and indeed the midwives themselves if, come October, the situation has not been resolved?
Earl Howe
My Lords, we are working hard on this. Officials from the department have been in discussion with stakeholders, including Independent Midwives UK, on an ongoing basis for at least four years with a view to identifying potential solutions to the issue. Arising in part from these discussions, independent midwives can now obtain affordable indemnity cover for the whole of the maternity care pathway either in the NHS or in the private sector. However, it is acknowledged that this is achievable only if they operate as part of some form of social enterprise or corporate entity. That is the issue that we have to get to grips with between now and October.
Baroness Masham of Ilton
My Lords, how independent are these midwives? Are they responsible to themselves?
Immigration Act 1971 (Amendment) Bill [HL]
Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013
(11 years, 6 months ago)
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Lord Taylor of Holbeach
That the draft regulations and orders laid before the House on 25 April and 8 May be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 4 June.
Elections (Fresh Signatures for Absent Voters) Regulations 2013
(11 years, 6 months ago)
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Lord Wallace of Saltaire
That the draft regulations and order laid before the House on 25 April and 8 May be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 4 June.
Care Bill [HL]
(11 years, 6 months ago)
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Lord Warner
Lord Warner
My Lords, the purpose of this amendment is to require HEE to give attention to ensuring that, in educating and training staff for the NHS, it also ensures that, as far as possible, staff can work across the health/social care boundary in an integrated way. I welcome the fact that the Government have inserted into Clause 88(1) paragraph (h), which states that Health Education England must have regard to,
“the desirability of promoting the integration of health provision with health-related provision and care and support provision”.
That strengthens the Bill from its draft version, but the Bill should go further, hence my amendment.
I would like to ensure that when separate regulations are made under Clause 85 for particular groups of staff, Health Education England is also required to try to use particular regulations to promote integration in accordance with the Clause 88 provision. For example, if there are to be regulations on community nurses or healthcare assistants, the issue of training them or recognising qualifications or registration, Health Education England should act in a way that facilitates integration of services by enabling those staff to carry their training and qualifications across employment in as wide a range of settings as possible. In short, it is to help secure an integration through portability of training and qualifications provision.
We are very good at mouthing platitudes about integration and swearing undying fealty to that great god, but we are rather less good at removing the blockages to it. One of those blockages can be training and education that prevents staff from working in a range of settings, with qualifications that are not always recognised by a range of employers. We need to do our best when we have the opportunity to remove those blockages and secure more people who are equally at home working in a predominantly health or a predominantly social care setting and can easily move between those settings for the benefit of services users. These staff need to be alert also to the importance of integrating care for individual service users across organisational boundaries. I want to ensure that Health Education England is in no doubt that this approach is important for tomorrow’s workforce. That is what my amendment seeks to achieve.
I recognise that there may be better ways of reflecting my intentions in the Bill than the precise wording of my amendment. However, I think we should go further than the broad duty in Clause 88 and relate it specifically to regulation-making powers for particular groups of staff. I would certainly be happy to discuss other ways of achieving this in the best interest of patients. I beg to move.
Baroness Pitkeathley
My Lords, I speak in support of the amendment. It is absolutely vital from the point of view of the patient and the family that the workers with whom they come into contact have an understanding of the whole of their situation. The training and experience of such workers has to encompass that whole situation. For example, a person who is admitted to hospital quite suddenly with a stroke has contact with social care services, finance departments of local authorities, charities of all kinds, reablement services, private care providers, as well as all the health services concerned with the actual condition.
Most people in that situation have none of the hinterland that some of us in the House have. We start with knowledge that, for example, health and social care systems are differently funded and that there is no commonly understood framework for integration. Most people experiencing services do not have that pre-existing knowledge. If such a person is going to have the opportunity for choice, to which we are all committed, it is absolutely vital that the workers with whom they deal have the broadest range of knowledge and experience. People’s experience of health and social care does not come in discrete packages. It is vital that the experience of workers does not come in discrete packages either.
As this is the first day of Carers Week, I will add a further point about carers. The report published today by Carers UK, Prepared to Care?, shows that every day 6,000 people take on a caring responsibility, often without any preparation, information or advice. Therefore, I hope that the Minister will agree that the responsibilities of the workforce across all services should include training and awareness of the needs of carers. The promotion of integration contained in the amendment would also address that issue.
Lord Campbell-Savours
My Lords, I should like to say a few words. My experience in all this is very much as a layman and as a tri-weekly visitor to see my mother in a nursing home. In discussion with health assistants working in the nursing home, I have found that there is a transfer between hospital settings and social care, and there are clearly disciplines and learning requirements that apply in both settings. Sometimes, in either setting, you see people who would have benefited from the training available in the other setting, particularly in the area of elderly care. To take nutrition, cleanliness and the changing of bedding, clearly the same standards apply. Often, simple tasks require a common training programme. I hope that the Minister takes the amendment very seriously.
Baroness Emerton
I entirely support the amendment on integration, particularly across the boundaries between acute and primary care. When we consider discharge policies and mechanisms, it is terribly important that those working in the acute sector understand what they need to look at to integrate with the services that will take over the care. There is division where, through the education programme, we need a holistic approach to the patient pathway.
Lord Sutherland of Houndwood
My Lords, I very much support the intention behind the amendment. It points us where we should be going. It is evident that the way in which professionals are trained deeply affects how they carry out their duties for the rest of their lives. That is a sign of good education. The noble Lord, Lord Warner, has been pointing the direction in which health and social care will and must go. It is essential to lay down the basis so that professionals accept that it is the shape of things to come.
Baroness Finlay of Llandaff
My Lords, for many years in medicine, there has been a move to try to ensure training in the community, but its implementation has been woeful. It has not been instigated as rapidly as people have been campaigning for over many years. I hope that the Government will look favourably on the spirit behind the amendment, although, in an odd way, the wording may be a little too restrictive. It is a very important move to ensure that, as more patients are moved out to be cared for in the community, community services can deliver what they need. With very sick people in the community, a different skill set will be needed from that which is currently available.
Baroness Wheeler
My Lords, I support my noble friend Lord Warner’s amendment. There will of course be further debate on integration in the wider context of the Bill, but the amendment is important because it underlines that Health Education England must have the strategic overview and understanding of the workforce requirements across the boundaries of health and social care if it is to undertake its role effectively.
Our stakeholder meetings have shown that there is considerable concern among stakeholders on that issue. They want the links between HEE and the social care sector to be more explicit. The noble Earl’s reassurances last week in that regard concerning Clause 88 were helpful, and I look forward to hearing from him further on how HEE is to work with integrated care delivery. I hope that he will concede that my noble friend’s cross-reference in his amendment to Clause 85 is necessary, because it links the HEE’s duty in Clause 88 to have regard to promoting integration to its key role of ensuring that there are sufficient skilled healthcare workers available.
The Health Education England mandate acknowledges that the future needs of the NHS, public health and care system will require a greater emphasis on community, primary and integrated health and social care. HEE is essential in that. Staff must be trained and developed in the skills that are transferable between different care settings and in working in cross-disciplinary teams in a range of different health and support settings. It must also work closely with the social care sector by developing common standards and portable qualifications across the NHS, public health and social care systems. The local LETB role, linking up with the health and well-being boards, is particularly important in that respect.
It is worth briefly mentioning two recent reports on integration, both of which, among other things, reinforce how much awareness and understanding of each other’s roles must take place for integrated services to happen and to be delivered. The shared commitment statement under the National Collaboration for Integrated Care and Support was drawn up by an impressive mix of national partner organisations, including government departments, the HEE itself, regulatory bodies, the Association of Directors of Adult Social Services, National Voices and other stakeholder groups. It pledges to help,
“local organisations work towards providing more person-centred, coordinated care for their communities”.
There is not time to go into detail, but National Voices’ A Narrative for Person-centred Coordinated (“Integrated”) Care, which sets out what integrated care and support looks like from an individual perspective, for both the cared-for and for carers, is a powerful vision for the future. It underlines how closely staff across primary, community, NHS and social care will have to work if this is to be achieved. The section of the narrative on communication describes professionals talking to each other, and patients always knowing who is co-ordinating their care, always being informed about what is going on, and having one point of contact. This in itself would be nirvana to most patients, service users and carers.
The recently published Nuffield Trust report, Evaluation of the first year of the Inner North West London Integrated Care Pilot, looks at developing new forms of care planning for people with diabetes and people over the age of 75. It underlines the importance of staff having a high level of commitment to the pilot and to the care planning process in particular. Initial results show that work on care planning and multidisciplinary groups resulted in improved collaboration across the different parts of the local health and social care system.
On public health, the HEE mandate itself states:
“The health of people in England will only improve in line with other comparable developed countries when the entire NHS, public health and social care workforce genuinely understands how their services together can improve the public’s health”.
Does the Minister accept that the HEE mandate supports the case for the Bill to include an explicit reference on the overall strategic context?
HEE’s role is to provide national leadership for workforce training, planning and development, ensuring that we have skilled, committed staff in the right place, in the right specialities and numbers. We need to meet these challenges of the future and of the changing face of healthcare provision. How to ensure an integrated approach to education and training across the NHS, public health and social care is a very strategic issue. I hope that the Minister will reassure the House on this by responding positively to the amendment.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, integration between health and social care is a strong theme of the Bill, and the Government take it very seriously. I very much agreed with a great deal of what the noble Lord, Lord Warner, and others said on that topic.
First, to deliver integrated care, it is important that local planning is aligned and is mutually reinforcing. That applies also to the planning of education and training. As Members of the Committee are well aware, the future needs of the NHS and the public health and social care system will require a greater emphasis on community, primary and integrated health and social care than in the past. An understanding is required of working in cross-disciplinary teams and working to break down barriers between primary and secondary care.
The mandate the Government published a couple of weeks ago gave Health Education England a clear remit to ensure that it trains and develops a workforce with skills that are transferable between these different care settings. The amendment of the noble Lord, Lord Warner, seeks to amend Clause 85 to require HEE to have,
“regard to the promotion of integration with care and support provision”,
when it performs its duty under that clause of ensuring that there are sufficient skilled healthcare workers for the purposes of the health service. As the noble Lord is well aware, Clause 88, which lists the matters that Health Education England must have regard to in exercising its functions in Clauses 85 and 87, already includes a requirement at subsection (1)(h) that Health Education England must support,
“integration of health provision with health-related provision and care and support provision”.
Subsection (1)(i) requires Health Education England to support staff to be able to work across different settings. These provisions were added to the Bill at the recommendation of the Joint Committee following pre-legislative scrutiny. Although Health Education England does not have a direct remit for the social care workforce, it will be expected to work closely with the social care sector at local and national level to ensure that workforce plans align with the training and development of the healthcare and public health workforce.
To support the development of this integrated approach, Health Education England needs to work with partners across health and care to develop common standards and portable qualifications. This must make it easier for staff to work and move between settings and should build on existing work, such as skills passports and national minimum training standards. Health Education England will work closely with the sector skills councils, Skills for Health and Skills for Care, nationally and through the local education and training boards, to ensure that workforce development is co-ordinated and integrated.
Lord Campbell-Savours
Let us consider a private home in the social care sector that is owned by an individual who, let us say, has 10 healthcare assistants in that home. How will this new authority be able to ensure that those people are properly trained? My noble friend’s amendment at least tries to insert into the Bill wording that would in part have covered that. How will this new body be able to ensure that those assistants are getting the necessary training?
Earl Howe
The noble Lord’s question relates specifically to private sector organisations, such as care homes, and the broad answer to it is exactly as I have tried to outline. Health Education England will make it its business to ensure, by working with the sector skills councils in social care, that the training that healthcare assistants and care assistants receive is fully aligned and consistent, and that it can more and more ensure that people can transfer from one sector to another. The issue of continuing professional development for somebody who is already working in such a setting is, of course, a separate issue, and we will come on to debate continuing professional development. However, that is the broad answer. As the noble Lord rightly said in his earlier contribution, all this will be increasingly important as more health training shifts into the community and into social care settings. We will see delivery of this training in a variety of settings, not just in the public sector.
To answer a question posed by the noble Baroness, Lady Pitkeathley, about what HEE will be doing to support the needs of carers, Clause 89(2)(c) means that HEE must ensure that it obtains,
“advice on the exercise of its functions from … carers”.
I hope that that gives her reassurance that the role of carers will be every bit as much in the sights of HEE as its other duties.
There is a further plank to this structure, and it is one which was mentioned by the noble Baroness, Lady Wheeler, whose contribution I listened to with great respect and agreement. The Bill places a clear duty on local education and training boards to consult health and well-being boards on their education and training plans. As the vehicle for strengthened partnership working across health and the local government and public health sectors, health and well-being boards will be well placed to reflect local priorities that need to be supported through workforce education, training and development.
The importance of multidisciplinary training was highlighted in the Government’s mandate to Health Education England. Although it will always be necessary to deliver discrete training programmes for many professions, there will be an increasing need to deliver healthcare in multidisciplinary teams, and the delivery of training should reflect this. Where appropriate it should incorporate working in multiskilled teams reflecting care pathways, rather than exclusively professional or staff groupings.
I hope that, with those remarks, the noble Lord, Lord Warner, is reassured that the Government fully support the spirit of his amendment. I hope that he has also gained a sense that, more than simply the spirit, we are pursuing the letter of what everybody wants to see: a much greater degree of integration of training and education in these sectors.
Lord Warner
I am grateful to the Minister for his remarks and I take them very seriously. I do not wish to be churlish, but I may be tempted along that path a little way.
Clause 85, as I understand it, is a regulation-making power. It seems to envisage that the Government of the day will from time to time make regulations that relate to very specific groups of staff. I have read the provision carefully, and it could presumably make regulations that exclude particular groups of staff. Somewhere along the way, there is a very real possibility that we will get regulations that cover particular groups of staff in a very specific manner. I am particularly interested in those groups of staff who work at the sub-professional level—the healthcare support staff. As my noble friend Lord Campbell-Savours said, these are very much the people who work across both these settings. At the moment, I cannot see why it will do harm—indeed, it is likely do some good—if we require this regulation-making power to take account of the kinds of issues which foster integration that I and other noble Lords have spoken of. The Minister mentioned the mandate. I know that mandates are extraordinarily fashionable at the moment, but mandates come and mandates go. Regulations tend to have a bit more sticking power than mandates, which might get out of date or move out of fashion.
I think that there is an issue here. I would probably be more reassured if the noble Lord could write to me, and send a copy to other Members who have spoken in this debate, on which groups the Government envisage covering in regulations under Clause 85(2).
Earl Howe
I would be happy to write to the noble Lord and other noble Lords on this topic. Perhaps I may add one final comment. If we were to go down the road proposed in this amendment, by providing a cross-reference to Clause 88(1)(h) in Clause 85, it could suggest that consideration of this factor alone takes priority over other factors. We want to avoid the risk of creating any perceived hierarchy in the matters to which Health Education England must have regard in the exercise of its function under Clause 85(1).
Lord Warner
I would like to reflect further on this. In the mean time, I beg leave to withdraw the amendment.
Baroness Greengross
“Regulation of healthcare and care assistants
(1) HEE shall establish and maintain a register of qualified healthcare assistants and care assistants.
(2) HEE shall, from time to time—
(a) establish the standards of proficiency necessary for admission to the register being the standards it considers necessary for safe and effective practice under the register; and(b) prescribe the requirements to be met as to evidence of good health and good character in order to satisfy HEE that an applicant is capable of safe and effective practice as a healthcare assistant or care assistant.(3) Regulations may prescribe—
(a) access to the register;(b) the process of application to and acceptance on the register;(c) the process of registration and readmission;(d) deemed registration of EEA health care assistants and care assistants;(e) lapse of registration;(f) approved qualifications;(g) EEA qualifications; and(h) fitness to practice under the register.(4) HEE shall, before carrying out duties prescribed in subsections (1) and (2), consult—
(a) the Secretary of State;(b) the Care Quality Commission;(c) such other persons, or other persons of such a description, as may be prescribed; and(d) any other person it considers appropriate.(5) “A healthcare assistant” is an individual who provides personal care for the health service, but who is not—
(a) a carer as defined under this Act;(b) a healthcare worker currently registered with the General Medical Council or Nursing and Midwifery Council; or(c) any other healthcare worker as may be prescribed. (6) A “care assistant” is an individual who provides personal care for the purposes of adult social care, but who is not—
(a) a carer as defined under this Act;(b) a healthcare worker currently registered with the General Medical Council or Nursing and Midwifery Council; or(c) any other healthcare worker as may be prescribed.(7) “Adult social care”—
(a) includes all forms of personal care and other practical assistance for individuals who, by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs, or any other similar circumstances, are in need of such care or other assistance, but(b) does not include anything provided by an establishment or agency for which Her Majesty’s Chief Inspector of Education, Children’s Services and Skills is the registration authority under section 5 of the Care Standards Act 2000.”
Baroness Greengross
My Lords, I bring this amendment before the Committee because, as we all know, there are huge numbers of very frail people, usually older people, often with multiple conditions, in our hospitals and care homes, and indeed in the community now. The numbers are growing. For all sorts of reasons—I think that some of them could be tracked back to the European working time directive—nurses are doing more and more complex tasks in the care that they provide, some of it electronic, that very often removes them from the day-to-day care of some of these very frail people. The same applies in care homes. The care that is provided is very often not provided by qualified nurses but by healthcare assistants or care assistants. There are many of those people who are fantastically caring. They have a natural ability to relate to the patients that they deal with or the residents in care homes. However, a lot of the dreadful cases that we read about in the newspapers take place because unqualified and unregistered care assistants are looking after people without the necessary training and without the necessary standard of care being insisted upon. This is extremely worrying.
We have heard a lot about dehydration or malnutrition and about a lack of dignity and respect. That is terrible, whoever is providing the care, but it is even worse somehow if the care is provided by people who are neither registered nor trained adequately and cannot be blamed for the fact that complex and difficult care situations are thrust upon them and they are landed with residents that they do not know how to care for adequately.
The amendment asks HEE to establish and maintain a register of qualified healthcare assistants and care assistants. If we could get there, we would then begin to have a remedy for some of the awful cases that we read about. We would know that people were fit to practise under the register and that there would likely be fewer cases of what can, unfortunately, amount to abuse.
When this system goes wrong in our country, we often learn that it is due to people who are not trained, qualified or registered being given enormous responsibilities. I would be pleased to know if the Minister agrees with me that this amendment would be of enormous benefit to patients and residents.
Baroness Cumberlege
My Lords, I congratulate the noble Baroness on the enormous amount of work that has clearly gone into this amendment and on the way that she introduced it, drawing on a lifetime’s experience in this field. My one reservation is about having to consider what the fundamental purpose of Health Education England is. As I see it, if HEE works well, then in future it will be the engine that delivers a better healthcare workforce in England, thereby improving the quality of care for patients. It is responsible for the education, training and personal development of all NHS staff and for recruiting, from our schools and into our universities, suitable people to carry on these tasks within the NHS. It is employer-led and it is there to provide the right workforce with the right skills and values, in the right place and at the right time, to better meet the needs and wants of patients.
The NHS has more than 300 different specific jobs and more than 1,000 employers nationwide, and the workforce needs to be educated and trained to exacting standards. Its task now is to prepare students for a very different NHS in the future: more care out of hospitals, more focus on long-term conditions, greater integration of health and social care, and new technology and techniques, all of which require planning and changes to curricula, as well as more of a focus on student choice towards NHS needs. It has an enormously difficult and comprehensive job to do. As I understand it, Health Education England accepts and supports the concept of mandatory training for healthcare assistants and the introduction of some sort of certification scheme that would allow HCAs to prove that they had attained the required levels of education and training.
It is a matter for Parliament to decide a view on regulation that goes beyond that recommended by the Government, but I do not believe that Health Education England would be an appropriate regulator. It is not created to have such a role, and that would not sit effectively with its core role of education and training. Therefore, although I very much understand the spirit of the noble Baroness’s amendment and appreciate the knowledge that she brings to the subject, I do not think that HEE is actually the tool to do this with.
Lord Turnberg
My Lords, I, too, welcome the principle behind the noble Baroness’s Amendment 16 but I agree with the noble Baroness, Lady Cumberlege, that Health Education England may not be the right place for this. At various times in our debates I have banged on about the regulation of healthcare assistants, because not only would it reassure employers and patients that standards were being met but being on a register gives individuals a degree of self-respect and sense of identity and it boosts their morale. In a way, it is a pity that we got rid of state enrolled nurses some time ago when we moved to university-educated nurses. In effect, that has been very successful and nurses have done very well—they do a marvellous job—but we have left a gap where the SENs were.
Amendment 23, which moves slightly along this same route, may be as far as we can go but, if we do have mandatory training, that will inevitably mean that someone has to produce a register of those who have received such training. This may not be quite the right place for it but we might get there by another route.
Lord Patel
My Lords, I rise briefly to support my noble friend Lady Greengross. It is not that her sentiments about registration are not right but we debated this at great length during the passage of the Health and Social Care Bill and to a degree I felt that we lost the battle about registration then. What is now important is Amendment 23A, which, with all due respect, is a better amendment because it focuses much more on training and the responsibility of the employer. I agree with the noble Baroness, Lady Cumberlege, that HEE is not the right organisation to be a regulator of registration.
Baroness Browning
My Lords, I refer to the register and my charitable interests. I am also the named carer for an adult with a direct payments care package.
I support the amendment of the noble Baroness, Lady Greengross, although I must tell her that I have listened very carefully and I share some of the concerns about which is the right body. However, the argument for the principle of her amendment is well made.
The Bill gives Health Education England responsibilities for ensuring that the health workforce has the necessary skills to meet the needs of patients. That is valuable but there is a key omission concerning the registration of healthcare assistants and care assistants. Although those doing this work provide the vast majority of personal care to people receiving health and social care services and are fundamental to promoting and protecting service users’ dignity and respect, there have been—as we have debated on many occasions in this Chamber—far too many concerning reports in the recent past. These reports have indicated that something needs to be done at all levels and in all structures in healthcare, whether in hospitals, care homes or people’s own homes.
The Francis report clearly showed the failings at Mid Staffordshire Hospital and, while it identified the trust management as responsible for the shocking quality of care, it outlined incidences of poor care and inaction by healthcare assistants in reporting concerns. At Winterbourne View, people with severe learning disabilities were treated with an appalling lack of dignity by care assistants and nursing staff, some of whom have since been given prison sentences. A number of reports looking at dementia care in hospitals have found unacceptable variations in practice and high levels of dissatisfaction, alongside incidences of unacceptable care. A number of reports looking at home care provided to older people, including the Alzheimer’s Society reports Support. Stay. Save. and Home Truths, as well as an inquiry by the Equality and Human Rights Commission, indicate that care assistants lack the time to provide good-quality care to service users. There continue to be isolated incidences of reported poor care and abuse of older people in care homes. I shall not continue the list. Sadly, it goes on, and we see new reports in newspapers even today. It is so frustrating that we raise these issues and try to do things about them but they still continue.
Baroness Emerton
My Lords, I will make a few comments on the contributions made so far by noble Lords. During the passage of the Health and Social Care Act I was very strongly in favour of the regulation of healthcare support workers. We have moved on in time, and in terms of the setting up of Health Education England and the role that the other bodies are taking. There is no doubt about all the points made by my noble friend Lady Greengross, and those about Winterbourne View and people being given prison sentences; most of them were registered nurses, not support workers. We want to ensure the safety of patients. For various reasons the Government now take the view that regulation is not possible through the Nursing and Midwifery Council. Regulation is possibly a step too far at this stage.
The Francis report recommended the creation of a registration system, under which no unregistered person should deliver care to a patient, whether that be in the community or in hospital. I agree that we need to have some form of certification, and some form of safeguard that will ensure that anyone delivering care will be able to be examined. Amendment 23A, which is grouped with Amendment 23, further sets out my view, which is shared by the noble Lords, Lord Willis of Knaresborough and Lord Patel, that basic training should be given with certification, and that it is important that employers take that into account.
Lord Campbell-Savours
My Lords, from what I hear and from what I have been told, the problem seems to be that no one wants to do this job. A number of organisations have been approached, and many of them have made it clear that registration would be an impossible task. However, when you talk to healthcare assistants in nursing homes or wherever, you find that among them are some who strongly believe in it, because they want to see weeded out the people who they believe should not be practising. If they want it, and they believe that it potentially defends their professional position, why can they not be given some organisation, some kind of structure to which they can belong and be registered with, which would give them confidence within their working conditions?
I understand that the Government’s response will be the vetting and barring scheme. However, despite that scheme, there is still strong support for the principle of a registration scheme. Perhaps the Minister might give his response to that, setting out the reasons why some people do not have confidence in this vetting and barring system.
Finally, in the event that we do not make progress on this matter during the course of this Bill, the best way to deal with it might be to refer it to the Liaison Committee when it is next considering applications for ad hoc committees. Perhaps those who are interested in this subject can make a joint application to the Liaison Committee to set up a House of Lords inquiry into what the blockage has been historically, what the benefits would be, and to look at the way forward in the future.
Lord Sutherland of Houndwood
My Lords, as has been claimed in the course of this short debate, this amendment should be seen in the same context as Amendments 23 and 23A. However, together they have one common difficulty, which I think has been highlighted. The first point they make is that there should be proper training and education in this area, which is absolutely right; it should be a matter for Health Education England. Secondly, there is still a residual concern, which is very real, that the presence of training does not always guarantee that the care will be of the level and quality that we reasonably expect. So there may be a separate question about imposing some degree of regulation on employers. It is hinted at in Amendments 23 and 23A that employers could suffer a liability were they to put into the field, be they agencies or statutory employers, someone who evidently is unable to provide a decent quality of care. So the separation of these two issues is what I propose.
Baroness Masham of Ilton
I would like to ask the Minister a question. I do so agree with the noble Baroness, Lady Browning, over Winterbourne; we do not want any more Winterbourne Views—and they can happen in any part of the country.
My question to the Minister is whether he would agree with me that, when it comes to crisis intervention and physical restraint techniques, all front-line staff should receive a national standard of training to deliver the best possible quality care and health services. Undermining best practice in this area is driven by three elements: a fragmented, unregulated training provider sector; procurement pressures, and commissioners’ and regulators’ roles in quality monitoring; and practice application. The people who have to be restrained are very vulnerable and, usually, mentally ill in some way. Is it really suitable for untrained people to do this job?
Lord Hunt of Kings Heath
My Lords, the noble Baroness takes us back to our debates last year on the regulation of health and social care support workers. We had some excellent discussions but, as the noble Baroness, Lady Browning, said, the Government set their face against the statutory approach without convincingly explaining to the House why they did not favour such a move. As far as I can see, the Government’s main objection appears to be cost; they are relying on better training and a voluntary register. But as the noble Baroness, Lady Greengross, pointed out, this may not be sufficient. As she says, unqualified care assistants are looking after very vulnerable people without the necessary training and support, and are being placed in a very vulnerable position. This is probably not the time to debate the loss of state-enrolled nurses, but my noble friend Lord Turnberg is absolutely right to say that the essential removal of the SEN grade has left a gap which needs to be filled.
My noble friend Lord Campbell-Savours points out that we are absolutely reliant on support workers to provide care. Many or most of them are actually very dedicated, but they are not being given sufficient tools to do the job effectively. One has to have great sympathy with the noble Baroness in her amendment.
Some noble Lords have said that it is not readily apparent why Health Education England ought to be the regulator. I certainly sympathise with that point, but no doubt the noble Baroness could easily substitute either the NMC or the HPC. We could no doubt come back to the question of which regulator it should be. The HPC has been somewhat acquisitive in past years in adding professions to its register, and would no doubt be keen to add healthcare and social care support workers to the large number of people whom it registers at the moment. As for the NMC, we understand that it has been through some difficulties in leadership and has a backlog of cases to be heard by its regulatory committees. But it has new leadership, and I am confident that it will be able to get through those problems—and, if it was chosen, it could also register health and support care assistants if that were to be required. So I do not think that there is an organisational issue in terms of difficulty in organising the regulation of support workers.
The Francis report has been mentioned by a number of noble Lords. This compelling report says:
“A voluntary register has little or no advantage for the public. Employers will not be compelled to employ only those on the register although they could be incentivised to do so”.
It concludes:
“It is not generally those who would seek voluntary registration who are the concern. It is those who will or would not seek voluntary registration but are still able to obtain employment who will be in contact with vulnerable patients”,
and those patients may not be appropriately protected. The Francis report says that this,
“need not be costly and can be self-financing”.
Amendments 23 and 23A, which we are going to come to, are very helpful but they do not do the job of regulation. Does the noble Earl think that the Government should reconsider their position in the light of the Francis report and of today’s debate?
Earl Howe
My Lords, like my noble friend Lady Cumberlege, I pay tribute to the noble Baroness, Lady Greengross, for her very carefully crafted amendment. It seeks to extend compulsory statutory regulation to healthcare assistants and care assistants and to make further amendments to legislation to account for this. I want first to acknowledge the crucial role played by healthcare and care support workers in the delivery of high-quality care to patients and service users throughout the country. That much is a given. The vast majority of workers give the very highest quality of care and are relied on and valued for the way they improve people’s lives. However, we have all seen evidence that a minority let patients down. This is a cause for concern and it is right that there is discussion about how we can ensure consistent, high standards of care.
My noble friend Lady Cumberlege made some very compelling points on the terms of the amendment but on the wider issue of principle the Government do not believe that the case for regulation is proven. Compulsory statutory regulation is not, of itself, an effective way to assure the quality of care by these workers and it can detract from the essential responsibility of employers to ensure that any person they appoint is suitably trained and competent for the role.
There are already existing tiers of regulation that protect service users, including the standards set by the Care Quality Commission and the Disclosure and Barring Service. We also need to be clear that professional regulation is not a panacea. It is no substitute for good leadership at every level and proper management of services. It can also constrain innovation and the availability of services. Experience clearly demonstrates that a small number of those workers who are subject to compulsory statutory regulation from time to time fail to ensure that their practice is up to date and delivered to the standard that we expect. In these circumstances it is too often the case that regulation can react only after the event.
The placing of hundreds of thousands of individuals on a list would not, of itself, ensure that we never again see the appalling failings in care highlighted by the Francis report into Mid Staffordshire or, indeed, Winterbourne View. Strong and effective leadership of the workforce is where the focus for improvement should lie. Employers and managers who are closest to the point of care must take responsibility for ensuring standards.
We also recognise that we need to facilitate employers to appropriately employ, delegate to and supervise health and social care assistants. To this end, as I have previously mentioned, we commissioned Skills for Health and Skills for Care to develop a code of conduct and minimum training standards for these groups in England.
In addition, we have announced the Cavendish review to consider what can be done to ensure that all people using services are treated with care and compassion by healthcare and care assistants in NHS and social care settings. The Nursing and Care Quality Forum has been established to help all those involved in providing nursing and care in all care settings to deliver the fundamental elements of good care and achieve their ambition of providing the very highest quality of care. That is in part an answer to the point made very powerfully by the noble Baroness, Lady Masham.
The noble Lord, Lord Hunt, suggested that these workers are not being given the tools to upskill themselves. We want to ensure that all healthcare assistants provide safe, effective and compassionate care, and we have already announced a number of measures to support this, including a £13 million innovation fund for the training and education of unregulated health professionals, the publication of a code of conduct and minimum training standards for healthcare and care assistants, and a review of induction training by the CQC. This is work in progress.
Having made these points, I want to reassure in particular the noble Baroness, Lady Greengross, that we have an open mind as to the range of measures that need to be put in place. However, before we can take a rounded view of what those measures should be, we need to take account of the recommendations that flow from the Cavendish review. I suggest to the noble Baroness that that is the most sensible approach.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl for giving way, but the terms of reference of the Cavendish review do not cover the regulation of healthcare support workers.
Earl Howe
No, the terms of reference encompass the core concern of the noble Baroness, Lady Greengross, which is the competence and skills of this sector of the workforce. That gets to the heart of the concerns of my noble friend Lady Browning around safety and the rest. The Cavendish review will point the way to a number of ideas that can move us in a positive direction.
Lord Warner
My Lords, perhaps I may ask the noble Earl a question before he sits down because I am getting increasingly puzzled by this debate. I agree with him that a list does not of itself do very much to protect the public, particularly if it is a list of apples, oranges, bananas, pears, cherries or whatever—and this is a list of people with different qualifications or experiences. However, the whole point about HEE is that it is meant to be a game-changer and to standardise some of the training for particular groups. Is it the Government’s view that the term “healthcare assistant” will start to mean the same in Cornwall as in Cumbria, because HEE has defined the training for those covered by that terminology to be the same wherever the person is trained?
Earl Howe
That indeed is the ambition whereby there should be consistency of standards throughout the country and people should know precisely what those standards are. The problem with this sector of the workforce is that the standards have not properly been defined until now—hence the work that Skills for Health and Skills for Care are doing. However, we will see from that work and the work of Camilla Cavendish where the gaps are and where we need to focus our attention. The noble Lord is certainly right to say that once we have these standards in place, Health Education England will be responsible for ensuring that they are properly promulgated and rolled out.
Lord Sutherland of Houndwood
My Lords, I thank the Minister for giving way. I appreciate his point about the responsibility of employers. They are immensely important. However, would he be prepared to extend the language of responsibility to liability, either of a fiscal, legal or right-to-practise nature? I am not asking for a detailed answer, but it would be a shift that many of us feel would be moving in the right direction.
Earl Howe
As a result of the Francis report, we are indeed looking at the whole question of the liability of employers in the NHS as much as anywhere else. No doubt we shall be debating those issues when we reach Part 2 of the Bill. However, I can reassure the noble Lord on that point. We have here a vital segment of our health and social care workforce. I hope that the noble Baroness, Lady Greengross—
Lord Campbell-Savours
I am sure the Minister will be very frank with the Committee. Is he aware of concerns being expressed about the operation of the vetting and barring scheme? Is he aware of any complaints?
Earl Howe
I am not aware of those concerns, and I apologise to the noble Lord as I meant to pick that up. I was slightly taken aback by his comment. Of course, I shall take advice on that point and I would be very happy to talk to the noble Lord outside the Committee on this matter. I have certainly not been made aware that that service is deficient in any material way, but that it operates effectively to protect patients and the public.
Does the noble Baroness, Lady Emerton, wish to intervene?
Earl Howe
I conclude by saying to the noble Baroness, Lady Greengross, that I hope she takes some encouragement from the work that is in train, and that she agrees with me that it is right to take stock after we see the recommendations flowing from the Cavendish review later in the year. No doubt that can inform our deliberations on Report. I hope that, in the mean time, she will feel able to withdraw the amendment.
Baroness Greengross
My Lords, I thank all noble Lords who have spoken for accepting that the principle that I was arguing about is correct and that there is a need for something to be done. I think we all recognise that, too often, people receive rather poor care. It is very hard to pin down what is going on because we do not have the mechanism to do so.
I also thank the noble Baroness, Lady Cumberlege, for saying that the principle of what I said was right. I thank the noble Baroness, Lady Browning, and all noble Lords who have spoken for agreeing that something really needs to be done. In my rather simplistic way of looking at things, I think that training leads to a qualification that will lead to a registration. It is as simple as that. Getting the training right would eventually lead to a professional approach of which people could be more proud and which would give them the self-respect that they need and, in the majority of cases, deserve. That would also give us the knowledge that, when things go wrong, there is a mechanism that will stop them from getting worse.
I also agree with the Minister that the Cavendish review could be the way forward and perhaps this is pre-empting something that we will have to wait a while to achieve. I feel very strongly that this has gone on for far too long; the anxieties are really great and something must be done. I hope I can work with my noble friend Lady Emerton so that somehow we can speed things up a little. In the mean time, I thank the Minister for his comments and beg leave to withdraw the amendment.
Lord Turnberg
“(b) the use of research evidence to ensure the rapid uptake of innovations into practice”
Lord Turnberg
This group of amendments, to which I have attached my name, is all about putting into practice the brave words we have heard about the need to place research at the centre of what the NHS does.
We have had the important and impressive inclusion in the NHS mandate to NHS England and CCGs of the duty to promote research, and we have had the recent publication of the Association of Medical Research Charities of a vision for research in the NHS with its three proposals. First, every patient should be offered the opportunity to be involved in research. Secondly, all NHS staff should be made aware of the importance of research. Thirdly, the NHS should conduct high-quality research and adopt innovation in healthcare rapidly. All the good intentions were spelt out in the earlier Bill and subsequently, but we seem to have lost sight of that in the current Bill.
Amendment 17 simply makes clearer what seems to be rather vague and perhaps less forceful in the current wording about accepting research evidence and putting innovations into practice. The Bill states that HEE must promote, which is a good word,
“the use in those activities of evidence obtained from the research”.
That has to be read several times to be understood. My amendment suggests something rather clearer, and what I hope is intended, which is,
“the use of research evidence to ensure the rapid uptake of innovations into practice”.
Amendments 20 and 32 aim to ensure that Health Education England also makes it clear that all who work in the NHS should understand and be able to play a part in research and innovation by including a new responsibility, to ensure that research and innovation are incorporated into the Bill. Amendments 37 and 39 point to similar responsibilities for the LETBs. My name is attached to these amendments, which are in the name of the noble Lord, Lord Willis, who unfortunately cannot be with us today because he is unwell. We wish him well. There is considerable danger that the LETBs in particular, dominated by local provider interests, will not unnaturally focus on their need to provide a clinical service and their requirement for sufficient numbers to fill their workforce needs. In so doing, they may not see that a service that is constantly evolving and changing needs a workforce that is fully switched on to the research agenda. They may not see that the future leaders of change—those who can undertake research and introduce new and better treatments year in, year out need to have their training needs met, too.
There are at least two types of need. The first is that of future academic clinicians, professors, senior lecturers, lecturers and the like in medicine, surgery, obstetrics and so on. The second is the need of all practising clinicians, be they doctors, nurses or technicians, if they are to integrate innovations and change into their practices. The academics need training programmes that are sufficiently flexible so that they can do their clinical training for some of the time and their research at others. They will almost certainly need to take three or more years out to do their PhDs, and they often need to do their purely clinical training over a longer period than others, as they slot periods of research into their clinical training.
Those going on to straight clinical practice—always the majority—need to understand what research entails, and will need to have some contact with research. Some may even take full time out for research, and in that way can appreciate new research findings as they come along. All those factors need to be considered by those in charge of education and training locally. I fear that unless something to that effect, as proposed in the amendments, is incorporated into the Bill, it will be so easy for it to slip out of view under the considerable pressure simply to provide services for today, with no thought for the needs of tomorrow.
I am not encouraged by the Department of Health’s document which is the mandate from the Government to Health Education England, in which the section headed “Flexible Workforce, receptive to research and innovation”—a brave heading—spells out what is intended. There is little here about how the intention of encouraging the development of a research-receptive workforce will be carried out. There is much about generalism, flexibility across service divisions and so on—all highly desirable—but nothing about producing those capable of doing the research and engaging in the clinical trials needed to make innovation possible. I hope these amendments will help to fill those gaps.
Lord Patel
My Lords, I support these amendments. My name is attached to Amendments 17, 20 and 32 in the name of the noble Lord, Lord Turnberg, and to Amendments 37 and 39 in the name of the noble Lord, Lord Willis of Knaresborough, who, as we have heard, was taken to hospital yesterday. I spoke to him in his hospital bed just before we started and he was beginning to feel better. I am sure we will want to wish him well.
I strongly support the amendment because, through the Health and Social Care Act, we gave prominence to the need to promote research and innovation in the health service, and it is right that we did that. It would be a pity now if the only gap in that duty would be for it not to apply to the key body, Health Education England, and the local education and training board committees. As the noble Lord, Lord Turnberg, so eloquently put it, the amendments are about education and training by research, and about making sure that LETBs also have a responsibility to make sure that they conform to the functions of the HEE. They are all related to research, training, innovation, continuing training and research and supporting research. They cannot be wrong and I hope the Minister will accept them. They are well meaning and promote research further.
Baroness Jolly
My Lords, I thank the noble Lords, Lord Turnberg and Lord Patel, for helping me with these amendments. The noble Lord, Lord Willis of Knaresborough, is unwell and may not be returning to us in time to help with the Bill. His twin passions are training and research, and Amendments 37 and 39 to Clause 90, which are all about the functions of LETBs, completely underpin that. I would be doing him a disservice if I did not ask the Minister to explore these areas when he sums up.
It is critical not only at a national level, with HEE, but at a local level, with the LETBs, that this area is not forgotten. Staff must understand not only the implications but all aspects of research. That must be plugged in at HEE and, with these amendments to Clause 90, at the LETB level.
Baroness Wheeler
I strongly support this group of amendments, the case for which has been ably made by my noble friend Lord Turnberg, the noble Lord, Lord Patel, and the noble Baroness, Lady Jolly.
The importance to the NHS of research and innovation has come under close scrutiny and debate in the House in recent times, under the Health and Social Care Bill, in the powerful debate of the noble Lord, Lord Saatchi, earlier this year, and in the debate that we almost had in the name of the noble Lord, Lord Kakkar, on the life sciences industry’s important contribution to healthcare and to our economy.
Under the Health and Social Care Act, Labour fully supported placing duties on the Secretary of State, the NCB and CCGs to promote research. Indeed, my noble friends Lady Thornton and Lord Hunt proposed amendments to that Bill reinforcing the importance of research, and we were pleased to work with noble Lords across the House in strengthening these provisions. That is why amendments to Clause 86, which deals with quality improvement in education and training, are so important.
Amendment 17 deletes the current reference to HEE needing to promote,
“the use in those activities of evidence obtained from the research”,
and replaces it with a proactive reference to using this,
“evidence to ensure the rapid uptake of innovations into practice”.
Amendment 20 underlines the need for HEE,
“to secure that research and innovation are incorporated into education and training”.
This was a recommendation of the Joint Committee, which we fully support. All NHS staff should be equipped with the tools to understand and support research and to assess and use evidence to inform their decisions when caring for patients or supporting clinical staff. They also need to be able to make use of research throughout their careers—a point that my noble friend Lord Turnberg made strongly—and be familiar with the NHS research infrastructure, which can provide further help and support.
The recent survey by the Association of Medical Research Charities showed the challenges to be phased in in this regard. Some 91% of staff surveyed, including doctors and nurses, identified the barriers that they had experienced to taking part in research. Lack of time was the predominant reason given by respondents. Other reasons included funding, practical support and difficulties in navigating regulation. GPs are an important gateway for getting patients involved in research, but although a majority of GPs believes that it is important for the NHS to support research into treatments for their patients, only 32% felt that it was important for them personally to be involved. As AMRC emphasises, we still have a long way to go if the Government’s goal of every clinician being a researcher and every willing patient a research participant is to be achieved.
Amendment 32 to Clause 87 adds promoting innovation and research in clinical practice to the matters that the HEE should have regard to—a logical and crucial next step in our support for innovation and research under HEE’s national functions. Amendment 37 on the local functions that LETBs exercise on behalf of HEE makes the important cross-reference between Clause 90 and Clause 86, rather than Clause 84, on the issue of ensuring that there are sufficient skilled healthcare workers promoting research and the use of research evidence in the health service. We believe that if LETBs are performing other duties of behalf of HEE under Clause 90, there is no reason why they should not also promote research, obviously within the LETB area. Amendment 39 would confirm in legislation that HEE’s research duty applies to LETBs as a main function, and we strongly support that.
Throughout the debates on innovation and research, we heard continued concerns and frustrations at the often painfully slow, complex and bureaucratic process of getting innovation in care and treatment adopted in the NHS. There was frustration, too, that existing processes and pathways, such as conditional approval in the named patient schemes and the opportunities under existing legislation, are not being fully used. In the January debate, the Minister reminded us that it took an estimated 17 years for only 14% of new scientific discoveries to enter day-to-day clinical practice. That is why these amendments to ensure that HEE actively promotes innovation and research and carries that through in the education and training of healthcare workers needs to be supported by the Government. I look forward to the Minister’s response.
Earl Howe
My Lords, there is no doubt that education and training can play an important role in creating a workforce that is research literate and innovative, with the skills required to diffuse the latest ideas and innovations. The noble Lord, Lord Turnberg, has focused our minds on some important goals in this area.
Through our investment in the education and training of health professionals, we must seek to ensure that our future practitioners know how to access evidence, use evidence and contribute to the national research enterprise. Developing a flexible workforce that is responsive to research and innovation is one of the key priorities that the Government have set for the Health Education England special health authority in its mandate. To answer the question posed by the noble Lord, Lord Turnberg, Section 63(1) sets out an objective for Heath Education England to support clinical academic careers.
Amendment 17 would require Health Education England to promote the use of research evidence to ensure the rapid uptake of innovations into practice. Amendment 20 would require it to exercise its functions to secure that research and innovation are incorporated into education and training. Amendment 32 would require it to have regard to the desirability of promoting research and innovation in clinical practice when performing its duties under Clause 85(1) to ensure sufficient skilled workers and Clause 87(4) when setting its objectives, priorities and outcomes for education and training.
The Government recognise very clearly the importance of promoting research and innovation. That is why Clause 86(2) of the Bill requires Health Education England, in exercising its functions, to promote research and the use of evidence from research in education and training activity. In response to stakeholder views in consultation and a recommendation from the Joint Committee that examined the draft Bill, we have strengthened the wording so that it is a duty to promote research. This has been welcomed by stakeholders such as the Academy of Medical Sciences and the Association of Medical Research Charities. It also reflects, incidentally, the equivalent duties to promote research already placed on the Secretary of State, NHS England and clinical commissioning groups by the Health and Social Care Act 2012.
The duty requires Health Education England to promote research activity in relation to its education and training functions, and the use of evidence obtained from that research, to secure continuous improvement in the quality of education and training. Those are pretty powerful provisions. I hope that noble Lords will appreciate from what I have said that Health Education England already has the necessary powers under Clause 86(2) to secure that research and innovation are fully incorporated into education and training.
I can reassure the noble Lord, Lord Turnberg, that Health Education England and the local education and training boards will work closely with research and innovation partners such as the academic health science centres and academic health science networks to deliver the duty to promote research. I can also reassure him that Health Education England will ensure that local education and training boards support this agenda and delivery of the duty to promote research. I hope that the noble Lord will feel sufficiently reassured by that to withdraw the amendment.
I shall now respond to the two other amendments to which noble Lords have spoken. Amendment 37 would add to a local education and training board’s main functions the promotion of research and the use of research evidence in the health service. Amendment 39 would require a local education and training board to support Health Education England in exercising its function to promote research into matters relating to social care services, primary care services and other health services so far as it is exercisable. I wholeheartedly agree that the local education and training boards need to take a strong interest in research and the use of research evidence when planning, commissioning and quality assuring the delivery of education and training. As noble Lords know, we have placed the primary duty to promote research on Health Education England but, as committees of Health Education England, the LETBs will be required to support the national body in delivering the duty through their workforce planning and education and training functions. Therefore, we do not see that the amendment is necessary in that sense. Health Education England will ensure that the LETBs support the delivery of key national duties, such as those in Clause 86, to promote research, support the NHS constitution and improve the quality of education and training. I also point out in this context that the appointment criteria that the Health Education England special health authority has used to appoint the existing 13 local education and training boards require the LETB to demonstrate effective mechanisms for partnership working with academic health science centres and academic health sciences networks.
I am sure that noble Lords will also be glad to know that Health Education England and the LETBs are working with the National Institute for Health Research, headed by Professor Dame Sally Davies, to ensure appropriate investment in education and training to develop clinical academic careers and increase the number of staff accessing academic careers programmes across all clinical and public health professions.
I hope that noble Lords will feel reassured that the spirit of the amendments is one which we have already grasped and which is reflected in the Bill and that they will therefore feel able not to press the amendments.
Lord Turnberg
My Lords, as always, the noble Earl gave some very reassuring words on this topic. I am not absolutely convinced that we do not need to strengthen the Bill a little more to reflect what he has enunciated, but, for the moment, I beg leave to withdraw the amendment.
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Lord Wallace of Saltaire
My Lords, with the leave of the House, I will repeat a Statement which my right honourable friend the Foreign Secretary has just been making in the House of Commons. The Statement is as follows.
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The Government deplore the leaking of any classified information wherever it occurs. Such leaks can make the work of maintaining the security of our country and that of our allies more difficult. By providing a partial and potentially misleading picture, they give rise to public concerns.
It has been the policy of successive British Governments not to comment on the detail of intelligence operations. The House will therefore understand that I will not be drawn into confirming or denying any aspect of leaked information. I will be as informative as possible to give reassurance to the public and Parliament. We want the British people to have confidence in the work of our intelligence agencies and in their adherence to the law and our democratic values. But I also wish to be very clear that I will take great care in this Statement and in answering questions to say nothing that gives any clue or comfort to terrorists, criminals and foreign intelligence services as they seek to do harm to this country and its people.
Three issues have arisen in recent days which I wish to address. First, I will describe the action the Government are taking in response to recent events; secondly, I will set out how our intelligence agencies work in accordance with UK law and subject to democratic oversight; and thirdly, I will describe how the law is upheld with respect to intelligence co-operation with the United States, and deal with specific questions that have been raised about the operation of GCHQ.
First, in respect of the action we have taken, the Intelligence and Security Committee has already received some information from GCHQ, and will receive a full report tomorrow. My right honourable friend the Member for Kensington, who chairs the ISC, is travelling to the United States on a long-planned visit with the rest of the committee, including Members of this House. As he has said, the Committee will be free to decide what, if any, further action it should take in the light of that report. The Government and the agencies will co-operate fully with the committee, and I pay tribute to its members and their predecessors on all sides of both Houses.
Secondly, the ISC’s work is one part of the strong framework of democratic accountability and oversight that governs the use of secret intelligence in the United Kingdom, which successive Governments have worked to strengthen. At its heart are two Acts of Parliament: the Intelligence Services Act 1994 and the Regulation of Investigatory Powers Act 2000. The Acts require GCHQ and the other agencies to seek authorisation for their operations from a Secretary of State, normally the Foreign Secretary or the Home Secretary.
As Foreign Secretary, I receive hundreds of operational proposals from SIS and GCHQ every year. The proposals are detailed. They set out the planned operation, the potential risks and the intended benefits of the intelligence. They include comprehensive legal advice describing the basis for the operation and comments from senior Foreign Office officials and lawyers. To intercept the content of any individual’s communications within the UK requires a warrant signed personally by me, by the Home Secretary or by another Secretary of State. This is no casual process. Every decision is based on extensive legal and policy advice. Warrants are legally required to be necessary, proportionate and carefully targeted, and we judge them on that basis.
Considerations of privacy are also at the forefront of our minds, as I believe they will have been in the minds of our predecessors. We take great care to balance individual privacy with our duty to safeguard the public and UK national security. These are often difficult and finely judged decisions, and we do not approve every proposal put before us by the agencies.
All the authorisations the Home Secretary and I do give are subject to independent review by an Intelligence Services Commissioner and an Interception of Communications Commissioner, both of whom must have held high judicial office and who report directly to the Prime Minister. They review the way that these decisions are made to ensure that they are fully compliant with the law. They have full access to all the information they need to carry out their responsibilities, and their reports are publicly available.
It is vital that we have this framework of democratic accountability and scrutiny. But I also have nothing but praise for the professionalism, dedication and integrity of the men and women of GCHQ. I know from my work with them how seriously they take their obligations under UK and international law. Indeed, in his most recent report the Intelligence Services Commissioner said: ‘it is my belief that… GCHQ staff conduct themselves with the highest levels of integrity and legal compliance’.
This combination of needing a warrant from one of the most senior members of the Government, decided on the basis of detailed legal advice, with such decisions reviewed by independent commissioners and implemented by agencies with strong legal and ethical frameworks, with the addition of parliamentary scrutiny by the ISC, whose powers are being increased, provides one of the strongest systems of checks and balances and democratic accountability for secret intelligence anywhere in the world.
Thirdly, I want to set out how UK law is upheld in respect of information received from the United States and to address the specific questions about the role of GCHQ. Since the 1940s GCHQ and its American equivalent, now the National Security Agency, have had a relationship that is unique in the world. This relationship has been and remains essential to the security of both nations. It has stopped many terrorist and espionage plots against this country, and has saved many lives. The basic principles by which that co-operation operates have not changed over time. Indeed, I wish to emphasise to the House that while we have experienced an extremely busy period in intelligence and diplomacy in the last three years, the arrangements for oversight and the general framework for exchanging information with the United States are the same as under previous Governments.
The growing and diffuse nature of threats from terrorists, criminals or espionage has only increased the importance of the intelligence relationship with the United States. This was particularly the case in the run-up to the Olympics. The House will not be surprised that our activity to counter terrorism intensified and rose to a peak in the summer of last year. It has been suggested that GCHQ uses our partnership with the United States to get around UK law, obtaining information that it cannot legally obtain in the UK. I wish to be absolutely clear that this accusation is baseless. Any data obtained by us from the US involving UK nationals are subject to proper UK statutory controls and safeguards, including the relevant sections of the Intelligence Services Act, the Human Rights Act and RIPA. Our intelligence-sharing work with the United States is subject to ministerial and independent oversight and to scrutiny by the Intelligence and Security Committee. Our agencies practise and uphold UK laws at all times, even when dealing with information from outside the UK.
The combination of a robust legal framework, ministerial responsibility, scrutiny by the Intelligence Services Commissioners and parliamentary accountability through the Intelligence and Security Committee, should give a high level of confidence that the system works as intended. This does not mean that we do not have to work to strengthen public confidence wherever we can, while maintaining the secrecy necessary to intelligence work. We have strengthened the role of the ISC through the Justice and Security Act 2013 to include oversight of the agencies’ operations as well as their policy, administration and finances, and we have introduced the National Security Council so that intelligence is weighed and assessed alongside all other sources of information available to us as a Government, including diplomatic reporting and the insights of other government departments, and so that all this information is judged carefully in deciding the Government’s overall strategy and objectives.
There is no doubt that secret intelligence, including the work of GCHQ, is vital to our country. It enables us to detect threats against our country ranging from nuclear proliferation to cyberattack. Our agencies work to prevent serious and organised crime, and to protect our economy against those trying to steal intellectual property. They disrupt complex plots against our country, such as when individuals travel abroad to gain terrorist training and prepare attacks. They support the work of our Armed Forces overseas and help to protect the lives of our men and women in uniform, and they work to help other countries lawfully to build the capacity and willingness to investigate and disrupt terrorists in their countries, before threats reach us within the United Kingdom. We should never forget that threats are launched at us secretly, that new weapons systems and tactics are developed secretly, and that countries or terrorist groups that plan attacks or operations against us do so in secrecy. So the methods we use to combat these threats must be secret, just as they must always be lawful.
If the citizens of this country could see the time and care taken in making these decisions, the carefully targeted nature of all our interventions and the strict controls in place to ensure that the law and our democratic values are upheld, and if they could witness the integrity and professionalism of the men and women of the intelligence agencies, who are among the very finest public servants our nation has, then I believe that they would be reassured by how we go about this difficult but essential work. The British people can be confident in the way that our agencies work to keep them safe, but would-be terrorists—those seeking to spy against this country or those who are the centre of organised crime—should be aware that this country has the capability and partnerships to protect its citizens against the full range of threats in the 21st century, and that we will always do so in accordance with our laws and values but with constant resolve and determination.”
My Lords, that concludes the statement.
Lord Triesman
My Lords, I thank the Minister for repeating the Statement made in the other place. It is important to start with some clarity over the precise subject that we are discussing today and we do so on this side against a background of agreement that I think is shared in both Houses, and across all sides of both Houses, about the values that are expressed in the Statement and the importance of protecting the United Kingdom and those values. It is clear that that is absolutely common ground.
The Guardian newspaper has revealed information obtained from Mr Edward Snowden, a former CIA contractor, that the National Security Agency in the United States has, so far as we understand it, collected huge quantities of information on telephone calls, e-mails and other online information. Some, but by no means all, of this surveillance has been focused on United States citizens. Much is said to have come from Google, Yahoo, Facebook, Skype and other digital sources. It will therefore include surveillance of people who are not US citizens.
While the United States Administration have acknowledged the truth of the telephone surveillance, the technology companies have denied that any online information has been provided that was not covered by a federal court warrant before it was handed to the US Government.
I do not want, and it is not my place, to comment on United States policy on this matter or on the extent to which the Patriot Act makes such actions in the US legal. Those are matters for US politicians and US courts. However, I accept what the Foreign Secretary has said—that all the surveillance is directed not just against terrorists but against many different kinds of criminals, such as cybercriminals, paedophiles and people who wish to steal intellectual property.
We need to focus on the issues for the United Kingdom and to allay the plain anxieties of UK citizens and the UK media about the extent of UK involvement, its character and the legal basis for anything that has happened in our country. As Douglas Alexander put it on the “Today” programme this morning in response to Simon McCoy, “We need to be able to reassure the public ... there is an understandable level of public concern, given the reports in the newspapers over the last couple of days, and given how much we all rely on the intelligence agencies here in the United Kingdom to keep us safe”. There have been assertions and counterassertions. Today we begin the process of understanding what has happened from the United Kingdom’s point of view.
First, I will deal with what might be called the straw dogs. I want, for complete avoidance of doubt, to be clear about what we are not saying today. I do not doubt for one second that in the complex battle with terrorism or organised crime we need to collect data. It is an intrusive but entirely essential task for our security services. I will not accept from these Benches that we would ever willingly or knowingly put UK citizens or others at risk. We, too, will give no comfort or inadvertent assistance to terrorists, as the Foreign Secretary said.
Secondly, we have no doubt whatever that this means that there will be co-operation between friendly states trying to achieve the same objectives.
Thirdly, the balance between surveillance and privacy is a very hard one to strike. Perhaps it is impossible to get it entirely right as circumstances change. The Foreign Secretary said, in replying to questions on the Statement, that mistakes will always be made. I am not even saying that mistakes have been made, but this is obviously something that we will all want to keep in mind. Privacy will be compromised to some extent, whatever balance we agree. However, there has to be a proper balance if we regard the proper privacy of citizens as important—important not at the risk of their life and limb but important none the less in a democratic society where we enjoy private life within the law. The United Kingdom would never have settled for a Stasi-style state. This weekend, the Foreign Secretary described his approach as “necessary” and “proportionate”. That is a matter of the balance. We try to enshrine the balance as best we can in law, and I must return to this point in seeking clarification from the Minister. We need better to understand the terms that the Foreign Secretary has used.
Fourthly, every Minister who has dealt with the intelligence services, including GCHQ—and I am proud to have been one of them—knows that we are dealing with people of the greatest integrity, and it is not any part of my submission to your Lordships that we have grounds for suspicion. They are excellent as a group and are outstanding in their service to the United Kingdom. I believe that the noble Lord, Lord Carlile, made essentially the same point on television over the weekend, and it is a view that I share.
Fifthly, I hear the expression that law-abiding British citizens have “nothing to fear”. We have probably all used that kind of phrase on one occasion or another, but it often conceals more than it reveals. Of course those acting within the law should not fear oversight but most of us also value our privacy, at least to some extent, and can value it without wishing to commit any acts of terrorism. I am never happy about the extent to which search engines inspect my tastes, purchases, and whereabouts and so on in pursuit of business, even when I do not want them to. Prism is therefore a concern for honest reasons, not dishonest ones. How we use it or perhaps contribute to it is also a concern for honest reasons, not dishonest ones.
On the “Today” programme this morning, Sir Malcolm Rifkind said that no access surveillance data of the kinds that I have described could be collected without explicit ministerial approval. I think that that was reflected in the Statement but I want to check. As I understand it, Sir Malcolm was referring either to material that the UK’s intelligence agencies may wish to collect for themselves or to material collected by a foreign agency that the intelligence services here might wish to access. He said, “The law is actually quite clear. If the British intelligence agencies are seeking to know the content of e-mails about people living in the UK then they actually have to get lawful authority. Normally that means ministerial authority”. I understand that the foreign agency might offer material out of mutual friendship and concern for the well-being of our or other citizens, and I repeat that this has an unavoidable impact on privacy but is very important for our safety. However, Sir Malcolm’s point was that there is an explicit law on permissions. He was not making the point that we should never try to catch terrorists by such means—quite the contrary.
Therefore, none of my questions is intended to help any terrorist. I have thought carefully about these questions, which in the past I would have been able to answer or would have been inclined to say I could not answer before your Lordships in this House for security reasons. These questions are not hostile; rather, they are exploratory. I ask them against the clear background of saying that we want the criminals whose attacks may be directed towards this country and who are never constrained by the question of any international border to be prevented from causing us harm and brought to justice.
How many instances of data acquisition by our intelligence services have taken place in the past three years in the ways that have been alleged by the Guardian? What precisely is the legal framework, what are the procedures and what are the protocols under which a United Kingdom Minister could ask for information from American agencies?
Did Ministers authorise each and every one of these applications for data? I suspect that there will be a yes or no answer. The assurance of legality can be made clear today by answering that question. It will not aid a terrorist in any respect to know the answer but it should be a source of reassurance to honest, law-abiding citizens of the UK.
Would it be lawful for GCHQ to request information from Prism and for this to fall outside the scrutiny of any UK Act, including the Intelligence Services Act and the Regulation of Investigatory Powers Act? Mr Hague appears to have said in the Statement that that could not happen, but I would welcome confirmation.
What is the status of the request to search United States data? Would that be covered by a proper warrant just as would requests to obtain that information in this country?
Did the Intelligence Services Commissioner and the Interception of Communications Commissioner have oversight of the process that they exercised? I do not mean “Do they?” in a general sense but “Did they in these circumstances?”.
Will the Foreign Secretary be willing to discuss all these matters in detail in an appropriately confidential meeting of the Intelligence and Security Committee? Will the ISC be put in a position where it can add to the assurance that the public seeks without disclosing anything at all that may assist anybody who intends us harm? Will the Foreign Secretary set out for Parliament any concerns that he may have about the surveillance of United Kingdom citizens, or, if he has none, will he explain how he reaches a conclusion on that matter? He cannot regard this as something within the reach of the “nothing to fear” answer. How rapidly could the Government respond to these deeper questions which have been brought to the surface by these events?
I ask these questions in exactly the sense in which I started when responding to the Statement. We are as committed as anybody to the effectiveness of an intelligence service which, from experience, I know is among the best in the world, operated by the best civil servants this country could hope to have. The public are not often exposed to the nature of the service’s work—this is perhaps a necessary fact about that kind of work. However, some clarity on these questions will give real reassurance.
Lord Wallace of Saltaire
My Lords, I thank the noble Lord for the general support he has given the Government and for his very constructive remarks on the necessary and excellent role of our agencies. He will understand that I cannot give him precise answers on some of the questions that he asked. As the Foreign Secretary said in his Statement, a preliminary report has already gone to the Intelligence and Security Committee, a fuller report will go to it and the committee will have the opportunity to examine the Foreign Secretary and a great many others on the reports that have come out. I hope that the noble Lord will allow me to leave it at that.
I simply add that the transmission of global communications is part of the context in which we all have to operate, as is the transmission of human movement. Someone may have been in London yesterday, is in Lagos today and could be in Aleppo in three days’ time. That person might be a citizen of two or three countries, one of which might be the UK. That is part of the problem. When the noble Lord says “within the UK”, what is within the UK is a great deal less clear than it was a few years ago. For all I know, the server which might hold the noble Lord’s private information from his Facebook account could be in Washington state—possibly even in southern China. Therefore, we are moving away from the ability to handle some of these issues entirely within the framework of the single nation state.
There are some extremely large questions here on data-sharing and data protection, some of which we will have to return to. Clearly data protection has to be on a European and global scale and cannot be purely domestic. That is the context in which we face all these challenges. We need different ways of attempting to keep up with criminals, terrorists and others from those we see in television series about the 1930s and 1920s, when detectives and security agencies steamed open the envelopes of letters, which were the main means of communication in those days.
Lord King of Bridgwater
My Lords, do we not now face a much more dangerous world in which we know that certain organisations are determined to commit acts of terror against this country in a more positive and direct way than we have perhaps faced before? Combine that with an explosion in systems of communication which did not exist before, and the graphic illustration that the Minister just gave about London, Lagos and Aleppo, and there is a globalisation and dependence on other countries for intelligence. The front line in the defence of our country is intelligence. From my previous experience, I pay tribute—as has already been done—to those who serve in our intelligence agencies. However, the challenges they now face are very real, and protecting the rule of law and following the orders under which they operate against the threats that our country faces involve very high standards indeed.
The real core of this Statement is that we need the ISC. We have to have some impartial outside body, and it will not surprise the Minister when I say that we must preserve the credibility of the ISC. Sir Malcolm Rifkind and his colleagues, including two Members of this House, face a challenging job. A very serious accusation has been made and we must get to the truth about it. I have absolutely no criticism of Sir Malcolm Rifkind, and have fortunately been long enough out of post. In preserving that credibility, we have to watch that we do not appoint people who have just had ministerial responsibility for the areas that they may be asked to investigate. A continual challenge is ensuring that we have experienced people who can contribute to what is now a very important job for the ISC.
Lord Wallace of Saltaire
I thank the noble Lord for those comments. I am not sure that in some ways we are in a more dangerous world than we were in 100 or more years ago when international anarchist groups succeeded in assassinating the heads of state of two or three European countries. However, he is absolutely right about the explosion of communications and the speed of communications. The general increase in the educated population of the world means that, when you are looking for terrorist groups, you are not able to look for a small group within each city but are looking at a much larger number of possible suspects. That is why agencies have to adapt the way they look at these sources.
Lord Lloyd of Berwick
I understand extremely well that the Minister cannot at this stage tell us very much, but I hope that he can at least confirm what appears to be the case—that the 197 Prism reports said to have been passed on to GCHQ last year all relate to communications data and not to the contents of any intercepted communication. If he can give us that confirmation—I hope he can and can see no reason why he should not if it be the case—it would be much less serious and would allay certain anxieties that otherwise we must all feel. If it is the case that it relates solely to communications data, will he say who gave the authorisation under Section 21 of RIPA, which is the relevant section, not Chapter 1, and whether the authorisation was specific to this case or was a general authorisation?
Lord Wallace of Saltaire
The noble and learned Lord would like me to go into specifics on specific cases, and I am going to resist that for reasons he will fully understand, while recognising the importance of the distinction made between communications data and the details of communications, which is one that we all recognise.
Lord Reid of Cardowan
My Lords, first, in all humility, I advise the Minister that it would be useful to distinguish between published opinion and public opinion. He may never be able to reassure some elements of published opinion that the security services are not being overzealous until there is some great incident, and it will then accuse the security services of not having done enough. That is the experience.
Secondly, to reassure public opinion, will he confirm that the regulatory legal framework is among the best, if not the strongest, among western democracies, not only the legal framework he mentioned of the Intelligence Services Act and RIPA but ministerial oversight, independent scrutiny and parliamentary accountability through the ISC? I tell him from my own interests—I declare them as registered—not only as a former Home Secretary but in the private sector and the academic sector that there is astonishment among many colleagues in Europe and the western democracies at just how far we go to ensure that oversight.
Will the Minister confirm the simple point that international terrorism is by definition international, that the means of communication in the world wide web is by definition worldwide and that therefore, if we are to protect the lives of the citizens of this country, we have to operate on an international basis? Almost every single plot that has threatened the public, many of which they have not heard about, has involved at least two or three countries, and in some cases more than 20. Therefore, within the legal framework, the security services, operating and sharing information on counterterrorism with our close allies throughout the world, have saved literally thousands of lives in this country over the past 15 years. The whole House should note that and congratulate our security services on it.
Lord Wallace of Saltaire
I thank the noble Lord for those very helpful words. However, it is not only all terrorism that is by definition international. When I was covering the Home Office brief and spent some time with the West Yorkshire Police I came to the conclusion that all serious organised crime is now international. We therefore operate in a world in which co-operation, not just with the United States but with our European partners and others, is nevertheless essential in order to combat this global phenomenon—and, of course, some of those with whom we have to co-operate are not the easiest of partners. The noble Lord will know well that some of the websites which those who have been radicalised in this country have had access to are operated out of very distant countries.
The difference between public opinion and published opinion is, of course, that public opinion very often wants different and contradictory things. The public want security and privacy, they want the state off their backs, but at the same time they want the state to protect them. That is part of what politicians have to deal with. It is one of the reasons why referendums are not always a terribly good idea, because the way public opinion flies depends on which week the referendum is held. Attitudes to privacy among the young are much more relaxed than among the old. Whether as the young get older they become more concerned about privacy is something we shall slowly discover as we go on.
Baroness Falkner of Margravine
My Lords, the Foreign Secretary’s Statement will have gone far to reassure people that our very high standards of oversight are being upheld. However, the problem for people is not so much about our own legal standards and standards of oversight, but what happens internationally, in other countries, and whether their standards are as high. In light of that, will my noble friend tell us what attention Her Majesty’s Government are giving, in the borderless cyberworld, not just to the full implementation of the 2006 data retention directive, but also to aspiring to have high common standards as we go forward into negotiations with the United States on the transatlantic treaty? Will that subject be covered in those talks?
Lord Wallace of Saltaire
My Lords, I am not entirely sure that I understand the full transition to cloud computing. A very small number of people in this House understand it, and I run to them from time to time to ask for their advice. Certainly, we will find that the new global standards on attempts to regulate cloud computing will be thrashed out in negotiations between the United States and the European Union in the context of the transatlantic negotiations. So far we are a long way from discovering how those will turn out. I read in the New York Times the other day that one of the differences across the Atlantic is that in the United States most people distrust the state much more than they distrust companies, whereas in Europe more people trust the state and distrust companies. That raises implications for what sort of regulation people really want. Clearly there will be some extremely difficult negotiations, first on the EU data protection directive, and then within the transatlantic negotiations.
Lord Elystan-Morgan
My Lords, in quoting the words of Sir Malcolm Rifkind, the chairman of the security committee, the Minister referred to a statement by him which said that normally only information which had been the subject of specific ministerial request would be used. The word “normally” suggests to me that there may be exceptional circumstances. Can the Minister, without embarrassment, suggest the sort of situation in which that might operate? It is a constructive and relevant question, which I am sure the House would wish to have an answer to, if possible.
Lord Wallace of Saltaire
The noble Lord tempts me to go down a lane which I think that I would prefer not to go down. It is, of course, the case that, in moments of absolute crisis, a short cut may possibly be taken, but this country attempts in all circumstances to go through the correct procedures and hold to the legal framework.
Lord Carlile of Berriew
Would my noble friend agree that one of the duties of the security services is to obtain relevant information in accordance with the constraints imposed by British law? Would he further agree that there is absolutely no evidence that GCHQ has deliberately circumvented British law to obtain information that might be available to the American authorities under quite different American law? Thirdly, would he agree that it is to be hoped that the free flow of important information between the United Kingdom’s security services and the Americans will continue, particularly if that information indicates that lives might be saved if the information is acted on? Would he further agree that it would be completely unacceptable for the British authorities to ignore information coming from abroad, wherever it comes from, if acting on that information might save lives?
Lord Wallace of Saltaire
I can confirm most of the questions asked by the noble Lord, but I had better not go into too much detail. An enormous amount of information is flowing into the United Kingdom on any day of the week from a range of other intelligence services. Naturally, we trust the Americans far more than we trust some other countries. But one has to listen to countries that may in many ways be hostile to the United Kingdom but with which we may share some real security interests. That is all part of the very delicate world in which we live and have to operate. None of this is easy, but maintaining British security and, at the same time, maintaining an open society is our underlying intention.
Lord West of Spithead
Would the Minister agree that it is somewhat ironic that the so-called whistleblower chose Hong Kong, which is close to and alongside China, as the place to make this statement, bearing in mind its systematic control of the internet within its own country, the way in which it looks intrusively at its own population, and the fact that it has probably been in among the computers of a large number of us here, let alone organisations in this country?
Lord Wallace of Saltaire
I confirm that, and congratulate the noble Lord on asking a question that did not mention the Royal Navy for the first time in some considerable period.
Lord Lucas
My Lords, will my noble friend confirm that at least one of the organisations with oversight over the security services would have it drawn to their attention if we started to get a large flow of communications content information from the United States, as opposed to communications data?
Lord Wallace of Saltaire
My Lords, lawyers have come in at a very early stage in this. I was briefed by FCO lawyers as well as by FCO officials this morning. Oversight is a continuing process, so any unusual change in pattern would naturally feed up towards the scrutiny and accountability process.
Lord Strasburger
My Lords, I apologise for arriving during the reading of this Statement but, in my defence, I was late because I was listening to it from the horse’s mouth, from the Foreign Secretary in another place.
In the USA, it would seem that politicians have been asleep at the wheel while their security and intelligence services have helped themselves to anyone’s private data without any meaningful oversight. Happily, in this county we have much better checks and balances on our security services, and the Government to their credit have been much more robust in resisting calls for security at any cost from the proponents of the disproportionate and unnecessary communications data Bill, which was accurately given the soubriquet the “snoopers’ charter”.
My question has been asked already today, but I ask my noble friend to try to address it. On the 197 occasions in the past year when GCHQ has stated that it obtained data from the Prism system in the States, was the data acquisition authorised by a Minister on each occasion? That is not about the content or the cases involved but simply about the process and legality.
Lord Wallace of Saltaire
My Lords, that is one of the issues which will be investigated by the ISC. The noble Lord and I may differ on what we think about the history and current role of the US agencies, but there is quite a large issue about US companies—Google and others—which we have assumed to be extremely benevolent but which are collecting a great deal of personal information on a very large number of people. That raises long-term issues which we will, no doubt, have to debate in future Sessions along with both domestic and international regulations to cope with them.
Defence: Better Defence Acquisition
(11 years, 6 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, I am sure the whole House will wish to join me in paying tribute to Lance Corporal Jamie Webb of 1st Battalion The Mercian Regiment, who died in hospital in Kandahar on Tuesday 26 March from wounds received in Afghanistan on Monday 25 March this year; Corporal William Savage and Fusilier Samuel Flint from the Royal Highland Fusiliers, 2nd Battalion The Royal Regiment of Scotland; and Private Robert Hetherington, a Territorial Army soldier from 51st Highland, 7th Battalion The Royal Regiment of Scotland—7 SCOTS—who were killed in Afghanistan on Tuesday 30 April this year; also, Drummer Lee Rigby of 2nd Battalion The Royal Regiment of Fusiliers, who was killed in Woolwich, south-east London, on 22 May this year. My thoughts are also with the wounded and I pay tribute to the courage and fortitude with which they face their rehabilitation.
I turn to the Statement, which is as follows.
“Mr Speaker, the defence of UK national interests is a priority for this Government. To secure that defence we must provide our Armed Forces with the equipment and capabilities they need to operate in a rapidly changing security environment. Without the right equipment, delivered on time, properly maintained and available for use, our Armed Forces cannot function effectively and our national interests are put at risk. Effective procurement and support of defence equipment is therefore not just desirable, but an essential part of maintaining flexible and effective Armed Forces.
For decades, there has been an acknowledgement that defence acquisition in this country can, and should, be done better. Despite numerous reviews and reorganisations, successive Governments have failed to embed the systemic changes necessary to achieve that objective. We owe it to the men and women of our Armed Forces, and to the long-suffering taxpayer, to do better.
Two separate independent studies carried out for the MoD have suggested that the costs arising from inefficiency in the procurement process are between £1.3 billion and £2.2 billion per annum. Waste on that scale is unacceptable at any time—more so at a time of acute pressure on the public finances. I am determined to drive a step change in the way we do our defence procurement business.
In April, I announced to the House that we had launched the assessment phase for the department’s materiel strategy programme, considering two options for the future of the Defence Equipment and Support organisation. The first is a public sector benchmark, which we call DE&S-plus, and the second is a Government-owned, contractor-operated entity, a GOCO.
Today, I am publishing a White Paper which sets out the materiel strategy proposals in more detail and provides more information about our intention to create a new statutory framework to drive better value in single-source procurement contracts, protecting the taxpayer in this significant area of MoD business.
We believe that a GOCO operating model is the solution which is most likely effectively to embed and sustain the significant change that is required to reform defence acquisition. But the decision will be based on an objective value-for-money comparison between the GOCO and DE&S-plus options. The assessment phase is designed to deliver specific, costed, contract-quality proposals from GOCO bidders and test them against the DE&S-plus benchmark.
There has been considerable speculation in the media and elsewhere about the scope of a GOCO. At the most extreme, I have seen it suggested that the proposal is simply to hand over £15 billion a year of taxpayers’ money to a private company and leave it to decide what kit to buy for our Armed Forces. Let me reassure the House that that is emphatically not the proposition.
If GOCO is the selected option, the GOCO partner will manage DE&S on behalf of the Secretary of State. It will act as his agent. All contracts will continue to be entered into in the name of the Secretary of State. Strategic direction will be provided by a governance function that will remain within the MoD. The GOCO’s customers will be the front-line commands and the MoD itself. The DE&S workforce will be transferred to the GOCO operating company under standard TUPE—transfer of undertaking, protection of employment—arrangements and we will expect the GOCO partner to inject a small number of senior managers and possibly some key technical staff. Crucially, the GOCO is assumed to be able to recruit and reward its staff at market rates—a critical freedom in a business which is required to deal with the private commercial sector on a daily basis.
The proposal set out in the White Paper is for a phased transfer of DE&S to a GOCO, with checks and break points to allow us to halt the process if it is not delivering the results we require. The legislation and the contract will include a transfer regime that will allow the Secretary of State to transfer the business to another contractor, or back to the MoD in extremis.
If, at the end of the assessment phase, a GOCO operating model is selected, then we need to be able to move quickly to conclude a contract with the successful bidder. The Government therefore intend to provide in the defence reform Bill the necessary authorities to let a GOCO contract in 2014, together with measures required to allow a GOCO, to operate effectively.
There are finely balanced arguments about whether primary legislation is strictly required to allow the establishment of a GOCO. The Government have, however, decided that it is right that we should legislate in this instance because of the importance of DE&S to our Armed Forces and in order to ensure that Members of both Houses, many of whom take a keen interest in defence matters, have a proper opportunity to explore and debate the issues.
The White Paper sets out the proposed model for a GOCO, its key features and our expectations with regard to the control that the department will continue to exercise and the freedoms that the GOCO will enjoy. Its purpose is to set in context the legislation that we are bringing forward in the defence reform Bill, including provisions to: ensure that the MoD Police have the appropriate jurisdiction to be able to operate within the GOCO environment; extend to the new body certain statutory immunities and exemptions enjoyed by the Crown, for example, in relation to the Health and Safety at Work etc. Act and the Nuclear Installations Act; and allow the transfer of shares in the operating company and/or property rights and liabilities in the operating company or contracting entity at the direction of the Secretary of State
I turn to the single-source procurement reform. The White Paper also sets out reforms to how the MoD undertakes single-source procurement of defence equipment. Open competition is our preferred approach to getting value for money. But sometimes there is only a single provider of a capability that we require. The need to maintain critical national industrial capabilities or sovereign control of the intellectual property in equipment programmes sometimes requires us to place contracts with UK companies without a competitive process.
Single-source procurement accounts for about 45% of the total MoD spend on defence equipment and support, or around £6 billion per year, and it is likely to remain at those levels for the next decade or so. Without competition, suppliers can price, and perform, without being constrained by the disciplines of the marketplace. There is a clear risk to defence and to taxpayers, and ensuring that we get good value for money in single-source procurement is a key part of my programme to reform defence acquisition.
The MoD currently uses a framework for single-source procurement which has remained largely unchanged for the past 45 years, despite the far-reaching changes to the industrial landscape and to commercial procurement practices that have occurred in that time. Under this system, the profit that contractors can earn is fixed, but there are few incentives for them to reduce costs. Such a system does not serve the best interest of defence or of a competitive, export-focused defence industry.
In 2011, the MoD commissioned the noble Lord, Lord Currie of Marylebone, to undertake an independent review of our existing approach and to make recommendations. He recommended a new framework: one that is based on transparency of contractor cost data, with much stronger supplier efficiency incentives, underpinned by stronger governance arrangements. Based on his recommendations, and extensive consultations with our major single-source suppliers, we have developed the new framework that I am proposing, details of which are set out in the White Paper.
At its heart is the principle that industry gets a fair profit in exchange for providing the MoD with the transparency and protections that we need to assure value for money. A statutory basis will ensure widespread coverage across our single-source suppliers and application of the regime throughout the single-source supply chain. The system will be policed by a stronger, independent, single-source regulations office to monitor adherence and to ensure that the regime is kept up to date. These changes will incentivise efficiency in operating costs and minimisation of overheads, supporting UK defence sector competitiveness, both at home and in export markets.
The proposals set out in this White Paper will deliver the real reform that our acquisition system needs to provide the support that our front-line forces deserve, to maximise the benefit of our £160 billion, 10-year defence equipment programme, and to deliver value for money for taxpayer. I commend the Statement to the House”.
Lord Rosser
My Lords, the Minister has had the sombre duty of paying tribute to five members of our Armed Forces who have lost their lives while serving our country, and expressing condolences to their families and friends. We associate ourselves fully with the Minister’s words. Recent events have reminded us that it is not just when they are in action overseas that the lives of members of our Armed Forces can be at risk.
I thank the Minister for repeating the Statement made in the other place. On these Benches we support defence procurement reform. We are open-minded about how this is achieved and we welcome a full and thorough examination of all possible options and a genuine comparison between the two options of the GOCO model and DE&S-plus. It is important that we should be able to move forward on this issue on a bipartisan basis. I have a number of questions and points to raise to which I would be grateful for a response either today or later.
Some argue that the GOCO principle is not entirely new, as the Atomic Weapons Establishment functions under this arrangement. Will the assessment of the GOCO model and DE&S-plus include an evaluation of the performance of the Atomic Weapons Establishment and the extent to which it has or has not performed better under the current structure?
The Government’s case for the GOCO appears in considerable part to be based on the view that the existing organisational structure of DE&S within the Civil Service acts as a deterrent to attracting some of the kind of people and expertise required because of the need to keep within Civil Service pay structures and cultures. There is, in the Government’s view, a need for behavioural change, and bringing in a few people from outside is insufficient. If that is the case, are the Government saying that it would not be possible to create the pay and incentive arrangements felt to be needed in respect of the DE&S without going down the path of a GOCO as envisaged in the Statement today?
If the issue is behavioural change then, in more specific terms, what is the change or changes that the Government wish to see, and how quickly do the Government believe that such changes could be achieved, since the staff working in the GOCO will come almost exclusively from staff transferred from the present DE&S with their existing conditions? Will the organisation running the GOCO be able to make decisions on staffing levels and other resources independently of the Secretary of State?
Obviously, the Government will have been sounding out outside organisations which might be interested in taking over the procurement operation. It may well be that no one company will have all the necessary skills or expertise to take over the procurement function and we may end up with a single consortium of companies. If that is the case, the Government will need to satisfy themselves that any consortium will not, in effect, become a monopoly provider of the service due to alternative individual companies or consortia with the same levels of knowledge and expertise not being available when the contract comes up again for tender. How do the Government intend to ensure that when the contract comes up for renewal, there will be competition? Can the Minister say how long it is envisaged that a contract to run the GOCO will last, and give the criteria for judging whether the contract has been successful?
There is a potential danger of the current expertise and knowledge within the military and civilian personnel of the Ministry of Defence on equipment issues, including cutting-edge equipment and technology, being diminished if a GOCO is established to take over the procurement function, with that knowledge resting more and more within the private sector. Would this mean that HMG’s sovereign ability to ensure the provision of battle-winning equipment could be diminished?
Will military personnel be seconded to work for a period in the GOCO, and will the current arrangements under which some Ministry of Defence staff work alongside private defence contractors, particularly on cutting-edge projects, continue under a GOCO? If a GOCO is established on the basis set out in the Statement and the White Paper, it does not look as though any meaningful risk will transfer away from the Ministry of Defence and thus the taxpayer. If I have misunderstood what is being proposed under the GOCO arrangement, perhaps the Minister could give some examples of the kind of risks that would be transferred from the public sector to the private sector.
What is anticipated would be the basis of a contract to take over the running of the GOCO? Would it be fixed-fee or performance-based? If the Government do not think too much of the performance or culture of the existing DE&S organisation and feel that there is a need for change, who is there in the Ministry of Defence who would be deemed competent to negotiate and supervise a contract with potential bidders that was in the taxpayer’s interests? Who will share the benefits of any improved efficiency in defence procurement as a result of the GOCO? Under the proposed GOCO, would Ministers have any powers to intervene in a contract negotiation or specific procurement decision?
Will the organisation running the GOCO have full knowledge of the UK’s defence equipment capability? If so, will this not be a potential security risk, and have any concerns on this issue been raised by the US and other allies? Would a GOCO model cover the whole of the equipment programme, including the nuclear deterrent? Would there be any requirement on a private company or consortium running a GOCO to ensure that defence manufacturers and suppliers in this country are given the sort of priority needed to ensure that a sovereign capability supporting a UK defence industrial strategy is retained?
Can the Minister give any assurances that a GOCO as envisaged in the Statement and the White Paper would not lead to a run-down in defence jobs in this country? Can he also give assurances that any changes made to the present DE&S organisation will be the subject of full and proper consultation with the staff and their trade union representatives, and that the rights of all existing staff will be protected? One would have thought that the staff and their representatives would also have a valuable input to make on the assessment of the options being considered.
I also ask the Minister for an assurance that the chosen model of procurement management will not lead to any diminution in accountability to Parliament for decision-making and that oversight and scrutiny of multibillion-pound contracts will not be hampered but enhanced. Can he also give an assurance that, at the very least, the same amount of information that is currently in the public domain in relation to the activities and working of DE&S will remain so under any different model of procurement management? We do not want to find that less information is in the public domain on grounds of commercial confidentiality.
We recognise the need for reform of defence procurement. We expect the Government to be open about the findings of the assessments that they will be undertaking on the chosen model for the future and that the two value-for-money assessments will be published and open to full scrutiny, including in this House, before a final decision is made. That is not only important for the need to ensure value for money but, equally significantly, is crucial to ensure that we get right the arrangements for supporting and equipping our Armed Forces who are serving, or ready to serve, on the front line on our behalf.
Lord Astor of Hever
My Lords, I thank the noble Lord for the general support given by Her Majesty’s Opposition for our defence procurement reform. We also want to approach this in a non-partisan way. There is general acceptance, including by the Opposition, of the problems in defence acquisition. Where we differ is perhaps in how we solve those problems. We have proposed a GOCO solution because we believe that incentivisation, the hard contract and the freedoms that GOCO would offer are the right way to deliver sustained improvement. Allowing the private sector, too, not only to share its expertise but to be held accountable for delivery will, we believe, deliver far greater effect than a wholly public sector set-up. We are testing that right now. This is very much the assessment phase—a decision will be made next year—and we are in listening and learning mode. There are a lot of experts in this House who know a great deal about this subject. We are very keen to hear any suggestions they may have and we are open to all their views.
The noble Lord asked me a number of questions. I was not able to write quickly enough to be able to answer them all but I will write to him and make sure that copies are also sent to noble Lords who ask questions afterwards. The first question was about the Atomic Weapons Establishment, which is a GOCO organisation, established to deliver a nuclear weapons capability for the UK nuclear deterrent programme. AWE Management Ltd is currently performing at or under its targeted cost and budget and has successfully shifted the organisation’s culture towards a more commercially focused one. Since transformation, AWE has successfully delivered efficiencies while increasing its salaries, and has allowed access to the necessary calibre of talent from the nuclear markets. We recognise that the AWE model may not entirely map to DE&S needs but it is a useful model against which to test our thinking.
The noble Lord asked me a number of questions about the workforce. The aim is to create an environment which supports more effective working at all levels across and between the interfaces of the new DE&S organisation and the wider department where our staff are more empowered and better able to carry out their jobs. This would allow DE&S better to support the Armed Forces and deliver better value for money for the taxpayer in a much more rewarding place to work. There would be more significant management freedom to run the organisation, increased opportunity to grow talent, develop the skills and the culture, and have the freedom and flexibility of management practices. The noble Lord asked about the role of military staff within the organisation. As is the case today, specialist military skills or expertise would be required in addition to recent operational experience to influence capability decision-making, delivery into service and support, and military staff would be seconded to the new organisation.
The noble Lord asked about the trade union position. We have been engaging with trade unions on our proposals throughout. Clearly, there are many questions that our workforce will wish to have answered as we develop both options through the assessment phase. But we would expect our workforce, and therefore the trade unions, to support our attempts to improve the environment in which our staff work, including the opportunity to improve skills, tools and processes. I have a lot of other information relating to the workforce on which I can perhaps write to the noble Lord. He asked how quickly we were planning to move. Taking the 2009 Gray report as a basis for change, we tested the thesis that the change we seek and the problems we are trying to solve could be made only by committing to a fundamental shift in approach. That detailed analysis led us to the two options: the GOCO model and DE&S plus. We have thoroughly analysed the business and the possible solutions and looked at the scope and capabilities of the organisation and what it is that we want. Now we need to assess who is out there who could actually deliver the proposition. That means running a competition which takes time, but we expect to make a decision next summer. I make no apology that it has taken some time. This is important, and it is important that we get it right.
The noble Lord said that we must be careful that we do not enter into a monopoly. I quite agree with him. We are in an assessment phase and a decision will be made next year. He asked about risks. Risks will be managed through the commercial contract. The MoD is taking forward plans to develop a customer construct that will be able to provide robust contract management. As with any major change programme, there are risks to its successful delivery. We will manage and mitigate these as the noble Lord would expect. The contract will be constructed with a number of break points, allowing the department to recompete the contract, or if necessary bring DE&S back in-house. A robust contract will be put in place between the GOCO provider and the MoD. The MoD governor function will monitor performance against the contract, and key performance indicators will be defined in the GOCO contract, covering the full spectrum of delivery, procurement, support, logistics and other services. Audits will be conducted as necessary to provide assurance that defence needs are being met.
I have done my best to answer as many of the noble Lord questions as possible but, as I said earlier, I will write to him on all the other ones.
Lord Palmer of Childs Hill
My Lords, we on these Benches associate ourselves with the condolences and tributes from the Minister. I will be more direct and ask just one question, and it may be easier to give just one answer. I am worried about the GOCO proposals, as are many people, but I believe that the situation appertaining to procurement in the MoD cannot continue as it is and that something must change. GOCO seems to be the preferred solution and gives us many worries that were expounded during the debate on the Queen’s Speech. If GOCO proceeds, the question I want to focus on is the identity of the contractor—the CO part of GOCO. From Written Answers received from my noble friend the Minister, there is no reason why this contractor may not be a foreign company. We are apparently reassured that the foreign company’s UK arm will have a Chinese wall between it and its US or European parent company. With the experience in this country of industries such as water being sold to foreign companies and how they then control those companies, is the Minister not being over-optimistic in thinking that, if there were secrets in the UK arm of these overseas companies, those secrets would not somehow go—this sounds like the last question—to those overseas companies?
Lord Astor of Hever
My Lords, my noble friend and I have had a number of discussions about GOCO and I am well aware of his concerns. I look forward to continuing discussions in the future and to hearing any positive suggestions that he has. I agree that something has to change. We cannot carry on with the existing situation.
The noble Lord asked me about national security protection, a point also made by the noble Lord, Lord Rosser, which I should have answered. Our national security interests are a primary responsibility of the Government. The better delivery of our acquisition support needs will be of real benefit. We will ensure that DE&S will be suitably constructed to ensure the protection of UK national interests. In order to safeguard UK national security, the contracting entity and the operating company must be UK registered and the overwhelming majority of the contract shall be performed in the United Kingdom. In addition, there will be restrictions on passing information to parent companies. Potential contracting entities will need to satisfy the Ministry of Defence that they can meet the national security restrictions, which will include a number of areas where only UK nationals can have access to the information.
I hope that reassures my noble friend. I have several other pages of information on this issue. I do not want to labour the House with it but I am quite happy to discuss it with my noble friend in private.
Lord Reid of Cardowan
My Lords, I join in the tributes paid and the condolences offered to the servicemen and servicewomen who have made the ultimate sacrifice for this country.
I welcome the publication of the White Paper, not least because it addresses in an open and discussive fashion a problem which, let us be honest, has bedevilled Government after Government of both political persuasions, although I suppose we must say now “all” political persuasions. I have one specific question only. It is not about the structure of the GOCO proposals, on which I am open minded, but about the underlying analysis. In doing so, I declare my interests, as registered, in the parliamentary, private and academic spheres.
The question is this: to what extent was the Government’s motivation based on the recognition that one of the key problems in procurement, giving rise to over-costs and over-runs in time, is the rapidity of cyclical innovation in cyber-related equipment? Put simply, 50 years ago, when we were dealing with the purchase of a platform, whether an armoured vehicle, an aeroplane or a battleship, the cycle of innovation of transformative and new products was 10, 15, 20 or 30 years. Now we are more concerned with what is on those platforms, not only the kinetics but the communication and the real-time analysis of situational awareness, and the cycle of innovation in that cyber-related procurement is something like 14 months. In other words, there is a cycle which occurs three times during the period of the normal procurement process. That on its own will not be solved by structural, managerial or contractual reformation. It would be interesting to know to what extent that was considered in the background thinking to the Government’s proposals.
Lord Astor of Hever
My Lords, I cannot answer that question relating to cyber, although I am sure that it was a contributory factor.
We have set out clearly in the White Paper the reasons for how we got here. The noble Lord and his colleagues who have had responsibility for procurement in the past are well aware of the problems. He makes a good point about cyber and the complexities and cost of it now. It is very relevant to the subject.
Baroness Garden of Frognal
My Lords, I encourage noble Lords to keep their questions brief. We have only 20 minutes and quite a few people want to speak.
Lord Hamilton of Epsom
My Lords, I very much welcome my noble friend’s Statement. GOCO will certainly introduce commercial disciplines and the incentives that can be provided by the private sector.
I have two questions for him. How long does he think these contracts will run for? How many years are we talking about? Will a GOCO address the question of the affordability of major projects? As we know, in the past we have seen enormous amounts of equipment ordered, particularly by the previous Government, although clearly there was not any money to pay for it. Will this introduction of a GOCO improve that situation in the future?
Lord Astor of Hever
My Lords, the answer to my noble friend’s first question is nine years. The answer to his second question is yes. We are determined. We feel that the discipline that will be brought in by a GOCO will make everything much more affordable and we will not have the kind of fantasy world that defence procurement has had in the past.
Lord Hutton
My Lords, like my noble friend, I warmly welcome the thinking behind the White Paper that has been published today and the way in which the Minister introduced it. We want to reach a bipartisan approach because these are problems that all Governments have shared and wrestled with.
I do not believe, however, that all the problems can be laid at the door of DE&S. A great deal of the sad and sorry history of defence procurement is as much to do with decision-making in the MoD as it is with the execution of those decisions. I am pleased that Ministers have now addressed the MoD decision-making part of this problem and it is appropriate that we now look at the DE&S part. I welcome what the Government have announced today.
I have two specific questions for the Minister and I should be grateful if he could respond to them. First, what proportion of the defence budget is it envisaged will initially be given either to a GOCO or to the reformed DE&S organisation? Are the Government planning a big bang, with all of the defence budget going in one go, or are they planning to release chunks of it at a time? Secondly, will the Minister specifically address the point about the United States Government? There have been reports in the press recently that the US Government have entered their objections to the process, particularly in regard to establishing a GOCO. Can he confirm whether any such representations have been made to Her Majesty’s Government by the US Government?
Lord Astor of Hever
My Lords, I thank the noble Lord for his support. I have read his excellent, well thought-through letter to the Economist. I share the noble Lord’s desire that this important subject should be above politics. The Secretary of State and my honourable friend the Procurement Minister are keen to brief Peers, individually or as a group, and to hear any suggestions, ideas or criticisms that anyone has. We want to get this right and, as the noble Lord said, it is above politics.
We have not yet decided the proportion of the defence budget but I will get back to the noble Lord when we have. As to the question about the United States, I have seen correspondence with our counterparts in Washington. There is a small amount of concern but they are approaching this issue in a positive way. They think that they could learn a lot from us. We will be the first country to do this. The noble Lord will be well aware of what happened down at Aldermaston. The United States feels that it has a lot to learn and has approached relations with us constructively. Again, I am quite happy to discuss outside the Chamber what the Americans have raised. On the whole, they have been very positive.
Lord Lee of Trafford
My Lords, I thank my noble friend for repeating the Statement and thank him and his officials for replying to some of the detailed questions that I raised in the Queen’s Speech debate. I had two specific questions for my noble friend. I asked what restrictions would be placed on the GOCO’s freedom to operate, specifically between buying off the shelf and sustaining our national strategic capabilities. The reply that I received is:
“As now, MOD and HMT will continue to approve procurement business cases. As part of this, MOD will assess and agree the proposed procurement strategy, which will enable the department to take issues such as these into account”.
If the MoD and HMT are going to second-guess what the GOCO is doing all the time, it is difficult to discern what freedoms the GOCO will actually have. Indeed, that is the very fundamental point of the GOCO.
Secondly, I asked what cognisance the GOCO would take of regional employment issues and the need to encourage SMEs, rather than support our major national contractors. The reply was:
“We have no reason to believe a GOCO would need to move the new organisation to different sites so it is unlikely to have any major impact on regional employment”.
With respect, I must say that that was not my question. I was not suggesting that the sites of the GOCO organisation or operation would have to be moved. I was asking whether the GOCO would be able to take into account the regional employment situations that arise in defence procurement. Will it have that flexibility?
Lord Astor of Hever
My Lords, I congratulate my noble friend on the outstanding questions that he asked during the Queen’s Speech debate. There were quite a lot of them and I was not able to answer them at the time or we would have been here even later than we were. However, I took them back to the department and the officials there were impressed by the depth of the questions. I thought it might be helpful to the House to make copies of the questions and the answers, so I have brought along copies which I am happy to distribute afterwards to any noble Lord because my noble friend’s questions were spot-on. I hope that, apart from the one question that was not properly answered, we have made a big effort to answer all the other questions accurately.
Taking my noble friend’s second question about regional employment issues first, the proposal will not address any specific issues of regional employment policy. The policy on this, as with other matters, will remain with central government and the Ministry of Defence.
As for second-guessing the GOCO, my noble friend will be aware that we will need to make decisions about what the Armed Forces need and then the GOCO will see them through.
Baroness Symons of Vernham Dean
My Lords, I welcome the Statement from the Minister and I particularly welcome the bipartisan way in which he approached it. Does the Minister agree, however, that there is an internal tension in defence procurement because of the very length of time that any procurement takes? The aircraft carriers, for example, have been at the top of the agenda for about the past 14 years, so inevitably these issues go from one Government to another. However, the tension is between maintaining some competition in defence procurement and, at the same time, recognising the importance of protecting the jobs and skills that we wish to secure for the future.
I disagree very much with what the noble Lord, Lord Hamilton, said about commercial discipline in the private sector. That may at times be important, but when the private sector concerned is a monopoly private sector, that rather undercuts the argument.
The Minister referred to briefings that he proposes to hold on this issue. Will those briefings be comprehensive in the way that we address this issue? If so, some of the very important issues that have arisen today can be treated not in the rather eclectic way that we are bound to see when we have this sort of discussion, but methodically, so that those of us who have some experience in this field can make a real contribution to the debate?
Lord Astor of Hever
My Lords, on the last point, I arranged a briefing—I am not sure whether the noble Baroness was there—at which the Minister for Defence Equipment, Support and Technology briefed noble Lords. He was hugely impressed by the depth of experience on all sides. He came to see me afterwards and asked if it would be possible to brief either individually or as a group. He is very keen to hear any suggestions and observations, and is aware that I am looking at noble Lords who have had huge responsibilities on this very subject in the past and know a great deal about it—a great deal more than I do. We are in the assessment phase. We are listening and learning and want to hear any suggestions. No decision will be made until next summer, so there is still plenty of time to hear what any noble Lord tells us.
Picking up on what the noble Baroness said, we obviously want to keep skills as far as possible and we feel that the GOCO would do that. We feel that of all the disciplines that it would bring to this, it would help to cut down the time taken for procurement. Taking the carriers as an example, with all the disciplines that it could bring, and being able to employ higher-paid people, it may be able to do things quicker. I do not want to take anything away from what DE&S has done—the noble Lord mentioned that—and I pay tribute to all the very hard-working civil servants and members of the Armed Forces who have worked there. However, they are constrained by Civil Service restrictions and we need to get more discipline and more incentive to get equipment for the Armed Forces quicker and more efficiently.
Lord Hamilton of Epsom
Following what the noble Baroness, Lady Symons, said, we are proposing a GOCO that may or may not turn out to be a monopoly. If it did turn out to be a monopoly, does my noble friend not agree that you are better off with a private sector monopoly than with a Civil Service one? Also, the prospect of competition being introduced after nine years will always be there, whatever happens to that GOCO.
Lord Astor of Hever
My Lords, we are talking about two things. We are talking about the GOCO but also a single-source regulation situation. We feel that the disciplines that we would place on the GOCO would ensure that there is not a monopoly.
Lord Reid of Cardowan
My Lords, could I add to my previous contribution lest noble Lords were confused by it? The innovation cycle of 14 months for digitally related equipment over a contract that may last, in the case of aircraft carriers, up to 14 years, means the constant demand for respecification of the initial contract to keep up with the latest and best. That, in my view, has contributed more than anything else to overruns and overcosts because they are a natural product of continual respecification.
Lord Astor of Hever
My Lords, the noble Lord makes a very good point. This is an area that the GOCO will have to struggle with—or if it is not GOCO, Civil Service-plus. I take on board everything the noble Lord said.
Care Bill [HL]
(11 years, 6 months ago)
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Lord Hunt of Kings Heath
“( ) HEE has a responsibility to ensure that its duties under this section are also extended to the Local Education and Training Boards.”
Lord Hunt of Kings Heath
My Lords, I wish to make sure that the House is aware of my interest as chair of a foundation trust and as a consultant and trainer with Cumberlege Connections. This group concerns the objectives and priorities established for Health Education England in Clause 87 and that of the LETBs as set out in Clauses 90 to 93. My Amendments 22, 52 and Clause 90 stand part really go to the heart of the relationship between HEE and the LETBs. Past experience indicates that unless one has strong leadership at a national level on workforce issues, one can find that decisions are taken locally, without national consequences being thought through. In the past this has led to an unfortunate reduction in training commissions despite national exhortations not to do so. I want to avoid that happening with Health Education England. I appreciate that under Clause 90, LETBs are appointed by HEE and, I suppose, exercise functions on behalf of HEE. However, I would like to see it explicitly stated in the clause that LETBs will come under the firm direction of Health Education England.
I have to acknowledge that I have been taken to task for my amendments by the Foundation Trust Network for undermining local provider autonomy. I stand corrected. I sympathise, and understand that LETBs must have room to breathe and innovate. However, ultimately, the integrity of a national strategy must be maintained. I hope that the noble Earl’s response on this and, on the ability of HEE to amend the training plans of LETBs if they are considered to fall short, will be positive.
I turn to Clause 92 and my Amendment 47 on the co-operation required between LETBs and local providers. The clause ensures that commissioners must require providers to co-operate with the LETB in planning the provision of, and in providing, the education and training for healthcare workers. Who could disagree with the need for NHS trusts, foundation trusts and other providers to be called to co-operate with the LETBs. But why is this being done through the commissioning process?
I have frequently listened to Ministers, when asked to intervene in the NHS, say that it is a matter for commissioners. I do not want to argue the ideology of commissioning and providing, but I wonder whether that is the right approach in this case. If one thinks of the challenges facing clinical commissioning groups, with small staffs and little experience, can it be expected that they can devote time to ensuring that providers co-operate with each other and the LETBs over education and training? Realistically, I suspect they will have very little time indeed. Therefore, as a minimum the HEE should be required to give guidance on how commissioners are to undertake that responsibility. More substantively, why not lay a direct requirement in the Bill on NHS foundation trusts and trusts on the face of the Bill to co-operate with the LETBs? That would be a signal of intent that NHS bodies could not ignore. I hope the noble Earl might be prepared to give that some consideration.
My third and fourth amendments in the group concern the organisations that LETBs must involve in preparing their education and training plan as set out in Clause 93(4). Overall, this clause is welcome, but it could be improved by my Amendment 49, which adds local authorities to the list. I am sure that the noble Earl will argue that this is covered by Clause 93(4)(c), specifying that health and well-being boards must be involved. However, the importance of these plans goes wider than that. I am sure that the local authority in general in the area of the LETB would have much to offer.
Similarly, Amendment 51 seeks to have patients and carers involved. With all the debate about whether professionals trained to work in the health service are really ready to give clinical care—I go back to the debate we had recently about healthcare support workers—surely patients should have a place round the table, where decisions that have a crucial bearing on patient outcomes are made. Very similar amendments and arguments can be made in support of the amendments of my noble friend Lord Turnberg and the noble Lord, Lord Patel, which I support. However, I hope that the noble Earl will be able to come back positively on the need of patients or carers to have a place and be involved when the training plans of the LETB are being considered. I beg to move.
Lord Turnberg
My Lords, I strongly support my noble friend’s amendments, which would ensure that local authorities and, in particular, patients and carers can be represented on the LETBs. I have three amendments in the group. Amendment 38 adds to the list of bodies from whom LETBs need to seek advice—namely, the local university medical and nursing schools. I know it is hardly likely that their advice will not be sought since they are so intimately involved in delivering educational programmes, but in case that message is not clear, we need to have it clarified somewhere in the Bill. I recognise that there has not always been unlimited delight felt by the trusts about the way the universities, particularly the nursing schools, have provided education suiting their products to the trusts’ needs. Nevertheless, it would be clearly wrong to ignore them.
Amendment 41 draws attention to the need to include postgraduate deans in the local education and training boards’ activities. It surprises me, to say the least, that the deans are not mentioned at all in the Bill, despite the fact that they are absolutely crucial to the oversight of education and training. I am sure they will be involved but we must have the comfort of knowing that their crucial role is acknowledged by seeing them clearly mentioned in the Bill.
Amendment 50 makes it a requirement for LETBs to include in their list of bodies from whom they need to take advice, the local universities in their patch. It is not enough to include these bodies in the catch-all phrase of subsection (4)(e),
“such other persons as the LETB considers appropriate”.
The medical schools need to be named in that list.
Baroness Pitkeathley
I speak in support of Amendment 51 on the patient and carer voice. I know that there is sometimes resistance to patient and carer representatives on bodies such as this. One often hears professionals say, “They only speak from their own experience”. Yes, they do speak from their own experience—and that is actually the powerful and most informative bit. That is not to say that patients and carers can only speak from their own personal experience; they speak from the wider experience too of other patients and carers with whom they are in contact. That is the most important voice and we should give it a hearing, because very often it is a way of approaching a situation entirely differently from the way in which the professionals would come at it. I am sure that there is a great deal that most professionals, either trained or in the process of being trained, could learn from that.
Baroness Cumberlege
My Lords, I wish to say a word about these issues. There is a danger, when we are setting up on the face of the Bill, the component parts of something like the LETB boards. As I understand it, the principle was that the majority of members of the board are local providers. That seems sensible because clearly they are the people who are going to have the knowledge and will inform the LETBs. Simply adding new members, each with a representative function, does not really aid the ability of a board to make decisions. It can become less effective and efficient, purely due to the numbers of people around the table.
There are many groups of workers and, indeed, patients who have got a case, but there are other ways of involving them. I very much accept what the noble Lord, Lord Turnberg, said about having due regard to universities and deans of medical schools. I am happy about the idea that one should have regard to advice that has been given, but I am not sure about having specific representatives that HEE decides are good for a local area on the board. Some areas want to do it differently. To me, that is fine. The size of the LETBs varies enormously; they can be the size of the whole of the north-west and the whole of the south-west, yet Wessex and Thames Valley are separate. These are to be local education and training boards; they need the freedom and flexibility to reflect the local area. Although I understand that people are anxious to ensure that the LETBs are efficient and represent local areas, views and constituent parts, it should be left to their flexibility and judgment.
Lord Patel
My Lords, I support Amendments 38 and 41 in the name of the noble Lord, Lord Turnberg. I slightly disagree, which is difficult to do, with the noble Baroness, Lady Cumberlege. In the new world, postgraduate deans are responsible not just for medical education, but for the whole of health education. If Health Education England is to be a body that influences education and training from the beginning to the end—we will come to another amendment relating to continuous professional development—postgraduate deans and deans of medical and nursing schools are crucial. If they are not to be represented on the local education and training boards, Health Education England cannot, through its committee, influence any of the innovations in education and training. That would be wrong.
There are examples where postgraduate deans and deans of medical and nursing schools are represented on education and training boards and they work fantastically well. I cannot see any reason why postgraduate deans and deans of nursing and medical schools could not be represented on local education and training boards, no matter what their size. I support the amendment.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this is a really useful short debate. I begin by saying that members of the Committee should not feel anxious; I feel that there is a degree of anxiety which needs to be allayed.
Local health providers and their clinical leaders have told us that they are well placed to understand the changing shape of services and the way in which their workforce must respond to deliver high-quality services to patients. They are able to link workforce planning to service and financial planning, something that has not always been done well in the past and which has contributed to failings in workforce planning.
Following consultation, we have chosen to give local education and training boards a statutory basis as committees of Health Education England. But the policy intent, reflected in the Bill, is that they are not mere local delivery arms of a national body. Rather, they are a key part of decentralising power, so for the first time, the providers of health services will have clear responsibility and accountability for the planning, commissioning and quality management of education and training for their workforce.
The mandate to the Health Education England special health authority includes a clear objective to support more autonomous local decision-making on behalf of local communities. A critical measure of the success of Health Education England at national level will be the effectiveness with which its engagement with the LETBs and employers results in greater responsibility and accountability for workforce development being taken by employers at local level.
At the same time, with localism comes accountability. HEE will need to hold LETBs to account for their investment in education and training and delivery against key priorities. Of course, there needs to be co-ordination in the approach to planning and delivering education and training. That is why the Government, and the vast majority of stakeholders, believe that we have got the balance right in establishing Health Education England as a national leadership organisation for education and training, with local providers securing greater autonomy and accountability through the LETBs. There will always be national level priorities and objectives for workforce development and, rightly, Ministers want reassurance through Health Education England that they are being addressed, but the policy intent is to do that in a way that strikes a balance between the national and the more local perspectives.
Amendment 22 is intended to ensure that duties under Clause 86 extend to the LETBs. I appreciated the balanced comments of the noble Lord, Lord Hunt of Kings Heath, and wholeheartedly agree that local education and training boards, given a statutory basis as committees of Health Education England, should support Health Education England in the delivery of key national duties, including those in Clause 86. As commissioners of education and training, Health Education England and the LETBs will work with education partners, service providers and professional regulators to ensure that the education and training that is provided in education institutions and in health service settings continually improves and delivers health professionals who are fit for purpose and who meet the needs of employers, patients and service users.
We have already discussed the importance of research and the role that local education and training boards can play in supporting the diffusion of research and innovation. By promoting the NHS constitution through its workforce planning and education and training activities, HEE and the LETBs will help to ensure that staff develop the correct values and behaviours to practise in the NHS and the public health system.
Amendment 47 would amend Clause 92 to place an obligation on Health Education England to provide guidance on how it will ensure that providers of health services co-operate with local education and training boards. Clause 92 builds on an existing duty introduced by the Health and Social Care Act 2012, which places a legal obligation on commissioners to make arrangements with providers to secure their co-operation with the Secretary of State on education and training. The purpose of that duty is to ensure co-operation with the local education and training board to support workforce planning activities, the provision of workforce information and the delivery of education and training to healthcare workers. That is an important step in ensuring that the system is well integrated and that all providers play their part in supporting essential education and training activity.
To emphasise that, and in answer to a question put to me by the noble Lord, Lord Hunt, Clause 92 provides that regulations,
“must require specified commissioners ... to include in the arrangements under the National Health Service Act 2006 ... terms to ensure that”,
providers co-operate with the LETB.
The Government have already put in place measures to deliver the duty in the Health and Social Care Act 2012, which came into effect on 1 April 2013, by amending the commissioning contracts and supporting regulations for the delivery of services, so that they now require co-operation on education and training.
It will be the regulations rather than any guidance which will set out how the duty is to be implemented. The level of co-operation, the information requested and the obligations required may vary over time. It is therefore more appropriate to enable this level of administrative and procedural detail to be set by regulations rather than in the Bill.
Turning next to Amendments 38, 41 and 50, as we have previously discussed, it is important that Health Education England and the LETBs have access to people with expertise and knowledge on education and training matters. The postgraduate deans have great knowledge and expertise and, through the local education and training boards, they are now an integral part of the new system, working alongside other colleagues to strengthen the multidisciplinary approach to planning and developing the workforce. It is important to remember here that Health Education England and the LETBs have responsibility for the education and training of all the professions. Although medical training is a very important element of their functions, the LETBs have a much broader focus.
Lord Turnberg
The problem is that I suspect there to be a conflict. There is a desire to devolve responsibility for education to local education and training boards, which are dominated, of course quite reasonably, by local providers. Their desire is to see a trained workforce in the right numbers, and they will be very interested in workforce planning. There is also a drive at the centre to maintain standards across the country, and so there is tension between the two. The noble Earl set out a number of provisions which will help. The amendments we put down were meant to strengthen that capacity in order for the LETBs to inspire confidence that they fully take account of educational standards and all that sort of thing, as well as the need to provide numbers of doctors, nurses, trainees and everything else.
Earl Howe
My Lords, I would rather have a creative tension than a disconnect. If we get this right the tension will be there but it will be mutually reinforcing. You will have accountabilities running in both directions, essentially, from the national to the local and from the local to the national. In the past this has been a notoriously difficult area to get right. We hope and believe that the structure we are putting in place, in which the LETBs are committees of the national body but which have their own autonomy to a certain degree, will ensure that the tension that the noble Lord referred to really is creative, rather than the reverse.
Lord Hunt of Kings Heath
My Lords, that was a very useful exchange. I do not disagree with this architecture, in which national leadership comes from HEE but considerable autonomy is given to LETBs. When looking back at the history of the NHS I remain concerned, as does my noble friend, about failure to implement national strategies in relation to the workforce. This is because decisions are being taken locally which do not fit into the national strategy, particularly over training commissions. This afternoon the noble Earl said that HEE has enough powers to intervene if that were to happen. I think the question is whether HEE has enough national leadership and confidence to actually ensure that a national strategy is implemented. Of course, we will have to see.
On membership, I note the noble Earl’s statement about the number of different professional groups that will have to be covered by LETBs, which is why postgraduate deans are not listed on the face of the Bill. I think that my noble friend really was persuasive on this point. Doctors may not be the only profession, but they are a very important profession. I would have thought it quite extraordinary not to have a postgraduate dean among those around the table of the LETB. Equally, I do not think that the patient advisory forum is sufficient at national level. Considering the NHS record over the last few years, one of the areas causing most concern has been whether trained staff are fit for purpose when it comes to clinical areas. To have a representative of a patient or carer around the table at a LETB would have been very important. However, this has been a good debate, and I beg leave to withdraw my amendment.
Baroness Emerton
“Mandatory training for health and care support workers
(1) HEE must develop a mandatory training curriculum for health and care support workers who are delivering direct care to service users.
(2) For the purposes of subsection (1), a health or care support worker shall be an individual who works in support of health or care professionals and delivers direct care to service users.
(3) In setting the training curriculum set out in subsection (1), HEE must seek to ensure that standards and competencies are developed in conjunction with the Nursing and Midwifery Council and other relevant organisations.
(4) Providers of health or care services must be responsible for ensuring that all health care support workers have completed the mandatory training curriculum in subsection (1).”
Baroness Emerton
My Lords, in her absence I thank the noble Baroness, Lady Greengross, for introducing the debate earlier this afternoon on the regulation of healthcare support workers, which opened the discussion leading to the two amendments that are down here. The first is in my name and the second in that of the noble Lord, Lord Willis, who unfortunately is unable to be with us. We wish him a speedy recovery.
I want to make one or two points by way of introduction. First, I would be remiss not to say that the Royal College of Nursing has long called for the mandatory registration and regulation of healthcare support workers. The RCN believes that it is an important part of the registration and regulation process because it has done a tremendous amount of work in talking to both registered nurses and healthcare support workers. It feels that this should be the way forward in the interests of patient safety. However, disappointed as they have been that we could not have regulation, they have moved on and are sympathetic to the amendments that we have laid down.
Mention was made of the disappearance from this setting of enrolled nurses. I went back to look at the case that was made for that disappearance and the end of enrolled nurse training. It happened because the enrolled nurses were being abused and misused by being left in charge of wards and being required to undertake tasks for which they had not been trained or were not being supervised. I have to say that the various skills currently being used by healthcare support workers far exceeds the definition of basic skills. They are doing things that might suggest that they are being abused and misused. I am sure that the House will agree that we need to do something about the situation. The Francis report requested that we look at the registration of support workers.
The question of standards leads into the amendments that we have put down. When a healthcare support worker is under the direction of a registered nurse, that nurse is working to care standards that have been determined by the Nursing and Midwifery Council. It seems sensible that the skills for care should be linked to care standards so that the registered nurse who delegates to the support worker can understand to which standards that support worker has been trained as well as the level of understanding that that support worker should have. I think that I used this example before in a debate on the health Bill, but instead of them just being taught how to carry out a skill such as taking a blood pressure, they should also understand the side effects of a raised or lowered blood pressure and what that means in terms of reporting it to the person who has delegated the task.
That brings me to the amendments we have tabled. If I may, I will move straight to Amendment 23A, which is a more succinct qualification of our first amendment and brings in all the points. It is in the name of the noble Lord, Lord Willis of Knaresborough, and is supported by me and the noble Lord, Lord Patel. The first point of the proposed new clause is that:
“Any individual working directly with patients or clients must be certified to have completed training in basic standards”.
In other words, they must go through training which equips them to have a certificate of qualification.
Secondly:
“The standards, in subsection (1), will be published by Nursing and Midwifery Council and approved by HEE”.
There should be some agreement between the NMC, which is the regulatory body, and Health Education England on subscribing to that.
Thirdly, the amendment states:
“Employers must retain a register”.
Once the support worker has been through the agreed LETB training, which would be delegated to a college of further education, they would reach the basic standard and be on a register and hold a certificate. The additional point in Amendment 23A is that it would be,
“an offence for any employer to employ an individual to work directly with patients or clients who is not registered as holding a certificate of training in basic standards”.
That would get over the point that people could go from one place to another without a valid certificate. We are interested to know how the Minister will respond to the amendment’s proposals on basic training certification in place of registration and regulation. I beg to move.
Lord Patel
My Lords, I have added my name to both these amendments in the names of the noble Baroness, Lady Emerton, and the noble Lord, Lord Willis of Knaresborough, and I strongly support the principles behind both. The key issue here is that a training curriculum should be developed by the Nursing and Midwifery Council, as the amendment says. In a way—to pre-empt the Minister regarding what the Cavendish review might recommend—whatever the review recommends will have to be taken on board by whoever develops the curriculum. Although the Cavendish review is not defunct, the principles of this amendment are not based on what it might say. Presumably the review will focus on the necessity for training and the kind of training that support and healthcare workers should have. These amendments put a duty on Health Education England to make sure that a curriculum is developed.
The other important point is that the training should be mandatory—not the training curriculum but the training—and the employers must ensure that they employ only those who, having been trained, hold a certificate showing that they have completed it. It is just the same as I would have to do when seeking employment at a hospital. I would have to produce a degree certificate from a university proving that I have been trained as a doctor before they will employ me. It would be an offence to do otherwise. The amendment does not provide for a penalty but that issue will have to be addressed. Although “register” might be the wrong word, the implication is that the employer should be obliged to keep a list of all the healthcare support workers in its employment who have completed the mandatory training and hold a certificate.
The completion of training and the holding of a certificate are the key issues. As nobody can be employed unless they have done that, the care for patients will be safer. The process will define the competencies of these people. It will define what further development they have to go through professionally to be able to do other tasks. It will also make the life of the supervisor easier as they will know what competencies these people have and they will not delegate to them tasks which are beyond their competencies. In that respect, these amendments fulfil all the requirements that the Francis report and several other reports have alluded to—the need to make sure that we have a fully trained and competent workforce which delivers front-line healthcare. I hope that the noble Earl takes the amendments in that spirit.
Baroness Jolly
My Lords, I want to add quickly to what has been said by the noble Lord, Lord Patel, and the noble Baroness, Lady Emerton. I very much support what they said. What I can add over and above that is that the amendment in the name of my noble friend Lord Willis, Amendment 23A, refers to,
“working directly with patients or clients”,
so it works not only in a health context but in a care context.
I will declare my mother—as the noble Lord, Lord Campbell-Savours, did his—as an interest. She is a lady who I visit regularly and is well over 90. Somebody comes to see her in her home every day—for the most part they are very nice young women—but I have no idea where they come from or what training they have. Amendment 23A would give me confidence that they have been trained and are certificated. Furthermore, these people tend to be quite a mobile population. If their certificates were to follow them from one establishment to the next, it would give the next establishment confidence that their training had been delivered to the right standard and that, all other things being equal, it is appropriate to employ them. That adds weight to Amendment 23A.
Lord Campbell-Savours
In speaking to a previous amendment, my noble friend Lord Hunt produced the explanation, which I am sure is true, that the reason that the Government are being tardy in the area of registration, which is obviously linked to training, is money. I argue that it is actually more costly not to act in this area than to ignore the problems that inevitably arise where there is an untrained workforce in an area where life and death are of critical importance. I do not exaggerate.
I think I have said before in health debates that I probably spend more time in bed on hospital wards than a large number of noble Lords put together. I have seen all kinds of things in hospitals over the years. You never say a word because you are grateful that you are there. You cannot complain. You watch. When you are an MP or a Member of this place you watch with a view to one day perhaps being able to raise what you have seen in a forum where people might actually listen and deal with it. There are many people who leave hospitals today and do not say a word. If they are cured and feel better, they feel grateful, even though they have seen things that they know are wrong.
I argue that many of the problems that arise on hospital wards arise as a result of insufficient training of healthcare assistants. They are in the low-paid sector of the social care and the acute hospital worlds. Many are on the national minimum wage. I will have to do a little more work on vetting and barring. I must admit that I do not know a lot about that. However, it seems to me that somehow people are allowed to enter into this sector who should not be there. I have seen them at work over the years.
I will not name the hospital, but I remember being on a ward where they needed to put strapping across my chest to do an ECG. It was around 1 am or 2 am. A healthcare assistant brought five machines to my bed. The first four machines all appeared not to work. The healthcare assistant then found a junior doctor on the ward. It turned out that the healthcare assistant just did not know how to use the ECG machines. They had not been trained properly. Think of the loss of time involved; of my frustration at 2 am, or whatever time it was—it is several years back now—at having to wait while all this was going on. There was also disruption for the patients in the beds to each side. They could not sleep because of the commotion. They knew that something was happening. The lights were off. There was only a light at the end of the ward where the nurses sit. The curtains were pulled around the bed. People kept going back and forth trying to find out why this piece of equipment was not working. In the end the problem was solved.
I think that there are many areas not only in social care but also in the private social care sector where little things that are of immense importance to patients could be dealt with if only the healthcare assistants available actually knew what they were doing and understood the importance of what they were doing to an individual patient. I shall refer to just a few of these areas. We have heard of food out of reach. I have seen that repeatedly in hospitals. I have seen it in other settings as well. An elderly person may be trying to get hold of something but they cannot communicate. They can only wait for someone to turn up. That person will not be a nurse, because the nurses are invariably sitting behind a desk trying to sort out the huge amount of paperwork that they have to deal with, or a doctor, because the doctors are running back and forth. Their problem may be the jug of water, the uncomfortable bed, the extra pillow, the extra blanket to keep warm, the dirt on the floor, the fact that they have not been cleaned or, if they manage to get to the toilet, the toilet not being properly cleaned. Many people might say that that is down to ward management, but the fact is that everyone on the ward is under pressure and very often it is not the nurse or the ward leader who is held responsible, but the poor young woman or man who is paid very little money who is taking the brunt of the anger of the patient. I do not think that that is good enough. I very strongly support these amendments as their purpose is to tackle the problem of the quality of care that is given by people who are hands-on in the ward.
We have talked about standards. I think that communication is extremely important. I have been on wards where the patient could not talk to the healthcare assistant because the healthcare assistant could not speak English. Can you imagine the frustration of the ill patient who cannot communicate with the healthcare worker because they do not understand what the patient is saying? I think that it is essential that language, and the ability to communicate through language, is a part of the training programme, to ensure that we are not bringing in, particularly from the banks and agencies, people who should not be on the ward. Some of them are, in my view, a danger to patients.
I think that there should certainly be training for healthcare assistants in nutritional requirements and why nutrition is important. As the noble Baroness, Lady Emerton, said, it is necessary not just to say to someone that this is what they must do; they must also understand why they are doing it and the significance of that to the patient. There should also be training in ward hygiene and training in the use of equipment. There should be training in how to take blood pressure. On one occasion I had my blood pressure taken by a person who did not know where the tube had to come out of the arm strap. I had to tell that person that it was on the wrong way. I have been in Parliament; of course I could tell them. What about the patients who do not know how to take blood pressure and may well get a wrong reading? That must change.
There should be training in the need to ensure that bedding is fresh and clean and on the turning of patients. Patient turning is very important on a hospital ward, as the Minister must know. However, it is very often the case that healthcare assistants have not been adequately trained in the way that a patient is turned on the bed. There must also be training in ward hygiene and in the standards required of a hospital loo. I have been in hospitals where the loos have been filthy. You would not think that there would be such filth in a hospital in the British National Health Service—things still in the bowl, floors not cleaned. I am not exaggerating. It is going on within the NHS.
A colleague and good friend in the House of Commons, Ann Clwyd, is doing some work on complaints, as the Minister will know. I go to her office regularly as we work in some of the same areas. I obviously cannot be involved in the work that she is doing on behalf of the Executive, but I do know about the speeches that she is giving in the House of Commons, involving personal testimony coming in from all over the country. She has read to the Commons from some of the letters she has received—not hundreds but, as the Minister will be aware, thousands—underlining all the complaints about the NHS. She has almost become the national clearing house for complaints. Many of those complaints are not about sophisticated areas of healthcare in hospitals. They are about very elementary things with which, with a little bit of thought, a healthcare assistant or a nurse could deal if only they had been properly trained in that area.
We know that the trade unions, particularly Unison, have made their voice very clear on this issue. They want training and registration. I understand that that is the position of the RCN. Most of the health service organisations want it and many healthcare assistants recognise the value of it. The Minister may not concede today but I plead with him to go back to his department and tell some of the civil servants who work with him on these matters that something has to change. I do not believe that this sort of laissez-faire attitude to this sector of healthcare is the answer. It is for Ministers in this Government to take action now and resolve the problem. There is a crisis and it has to be resolved.
Lord Turnberg
My Lords, after that tour de force by my noble friend Lord Campbell-Savours, there can be hardly anyone who does not believe that the training of healthcare assistants should be mandatory. Indeed, most of the public would be surprised to know that they are not trained or may at least get through without any training whatever.
I strongly support the amendments. They are a slightly less strict version of Amendment 16 from the noble Baroness, Lady Greengross, in that it focuses heavily on the mandatory nature of the training, and that is of course the basic requirement. It omits the need for statutory registration, but the case for mandatory training is incontrovertible; I cannot see anyone believing that it is not.
I hope that the Government are open to this proposal. It is a valuable step in the right direction, even if we cannot have registration at the moment. I sincerely hope that the Minister will be open at least to this proposal, which has such merit and such strong support from almost everyone; I do not know of anyone who argues against it. I do hope that he might see this sympathetically.
Baroness Hollins
My Lords, my interest is as the parent of two adult disabled children who receive publicly funded care. I did not speak to the earlier amendment on the need for the regulation of health and social care assistants, but I strongly believe that some such staff are currently poorly served by the lack of an adequate professional framework. Many have poor pay and variable conditions of work, and perhaps poor protection for themselves. They also have varying access to training, supervision and education.
To give one example, a care assistant was employed to work with an autistic person without receiving any autism-specific training, even though it was specified in a support plan. One would hope for some basic mandatory training that also specified what future training might be needed to support specific people with specific needs. That seems to be common sense.
My noble friend asked clearly for mandatory training in basic standards of care, and that these candidates should then be registered as suitably trained. It is a neat solution to the problems that we are facing and it makes very good sense. I have one more example: in the interests of more integrated health and social care, care assistants are often required to support disabled or elderly people to access healthcare, but they are not very good at doing that. The confidential inquiry into the premature deaths of people with learning disabilities found that it was often the lack of persistence of people who were supposed to be supporting learning-disabled people that led to a failure in follow-through of their healthcare investigations and treatment.
I have a question about how personal assistants employed directly by people who are in receipt of direct payments would fare under such a system. Disabled people would need assurance that the personal assistant applying to work with them also had basic skills. One would hope that disabled people employing personal assistants would be reassured by the knowledge that someone had been registered as having a certificate of basic standards of care. I add my support to these very good amendments, particularly Amendment 23A.
Baroness Cumberlege
My Lords, I support these amendments on mandatory training. I know that the noble Baroness, Lady Emerton, has fought and fought for this. I served with her on the United Kingdom central council for nursing, midwifery and whatever it was. She pioneered the whole idea of improving nurse training, and it was very successful.
To follow on from the noble Baroness, Lady Hollins, it is interesting that we now have two different parts to the arguments. One concerns the benefit to patients and the public, while the other concerns the benefit to the workers themselves, which I thought was a very interesting angle. It was Terry Leahy who said that he built his empire just by ensuring that all who worked for him felt good about themselves, and I thought that that was very interesting.
I am concerned about how the amendments are fashioned because I am not quite sure what we are talking about. Perhaps the noble Baroness or the noble Lord, Lord Patel, will clarify that for me. We talked about healthcare support workers, and I understand that such workers predominantly work in the NHS. However, subsection (2) of the proposed new clause refers to,
“a health or care support worker”.
I am not sure what a care support worker is, as opposed to a healthcare support worker. Does the support worker work, as the noble Baroness, Lady Hollins, said, in people’s homes? Do they work in residential care? Are they covered by this or not?
The noble Baroness made another point, which I was also going to raise and on which I would like some clarification: what about the people who work for others who need care, through direct payments or personal budgets? Will this rule out those volunteers who often come in and sit with someone, who may do some minor tasks and may even do some relatively nursing-style tasks, such as putting in eye drops, which a member of the family would do? I should like to clarify who we are talking about.
Lord Hunt of Kings Heath
My Lords, like my noble friend Lord Campbell-Savours, I remain puzzled by the Government’s approach. I am grateful to the noble Baroness, Lady Emerton, for setting out a number of persuasive arguments for why there ought to be mandatory training for health and care support workers. There seems to be a general consensus around the House and no doubt the Minister will agree with it. My reason for supporting the amendment is that mandatory training is clearly very important, but it is inevitable that if you have mandatory training you have regulation; the two run together. Those who are proposing these amendments ought to recognise that there is an inevitability that if you have training then you must have a list of people who are trained; action has to be taken against those people who have been trained but are then found to be unsafe in dealing with vulnerable people; and there has to be a way of removing them from the list of those who have been trained that has been published. If you go down this route, one way or another you are clearly signing up to mandatory regulation, and a jolly good thing too.
Amendment 23A puts forward an eminently sensible suggestion for healthcare support workers to be certified to show that they have been trained in basic standards, with employers to register individuals who hold such certificates. We need to go back to the Francis report. Mr Francis is widely reported to be disappointed with the Government’s response to his report, and it is not hard to see why. His report commented on the absence of minimum standards in training and competence. This is compounded by huge variations in the approach of employers to job specifications, supervision and training requirements. That is why my noble friend Lord Campbell-Savours has come across so many instances of poor-quality healthcare support.
The Prime Minister’s Commission on the Future of Nursing and Midwifery noted that training for support workers was very variable and recommended that they should be better trained. In response, as the noble Earl told us earlier, the Government have commissioned Skills for Health and Skills for Care to work together to develop a code of conduct and minimum induction and training standards. We now know from the mandate issued by the Secretary of State to Health Education England that it is obliged to establish minimum training standards for healthcare assistants by spring 2014. At this point, I ask the noble Earl: how far does that go? Will it be mandatory for all entrants to the role of healthcare assistant to undertake such training? If that is so, will this extend to care assistants? What about existing health and care support workers? Will this training extend to them, or will it apply only to new people coming into the healthcare profession?
Under the proposals, how will employers know if their support workers have undertaken the minimum standard of training? Will a nationally recognised certificate be issued? Will a national list be established, indicating those who have undertaken such training? If there is not a list, does that not leave a big burden on employers seeking to check whether prospective staff have undertaken the minimum training requirement under the mandate? I come back to the point I made at the beginning: if a list is established, would that, in essence, not amount to a register? If there is such a list or register and it becomes clear that a support worker is unsuitable to care for vulnerable people, is there a way in which an organisation or employer could then apply to have such an individual removed from the list of people who have received the minimum level of training?
Having a certificate showing that someone has achieved a minimum level of training will be generally regarded as a certificate of an ability to practise. If there is such a certificate, there must be a way to remove that certificate if people are found to be wanting. In effect, once one begins to lay down minimum standards and to specify mandatory training, will there not be an inevitable step towards regulation? Amendment 23A poses those questions to the noble Earl. I hope that he will answer sympathetically.
Earl Howe
My Lords, I first thank the noble Baroness, Lady Emerton, for an interesting set of proposals and I am grateful for her thoughtful introductory remarks. I agree that ensuring the capability of the health and care support workforce is vital to delivering high-quality care to patients and service users across both health and social care settings. The issue is how we achieve this. Key requirements for delivering high-quality care can best be achieved by providers having the right processes in place to ensure they have the right staff with the right skills and the right training to deliver the right care in the right way to patients and service users.
The idea of statutory requirements can seem an attractive means of ensuring patient safety, yet Robert Francis’s report demonstrates amply that this in itself does not prevent poor care. I confess that I was a little surprised by the vehement support of the noble Lord, Lord Hunt, for the idea of statutory regulation because it was an idea that his Government resisted for some time. I suggest that they resisted it for a number of reasons and they came to the conclusion that it is not as self-evident as some like to make out. That is certainly this Government’s position. This is not, as the noble Lord, Lord Campbell-Savours, suggested, a laissez-faire attitude on the part of the Government. As we made clear in Patients First and Foremost, the initial response to the Francis inquiry, the Chief Inspector of Hospitals will ensure that all hospitals act to make sure that all healthcare assistants are properly trained and inducted before they care for people. I suggest that this is an important step forward.
Lord Campbell-Savours
Has anyone in the department ever sat down to work out the annual cost to the health service of paying for litigation defence and compensation to people who have made complaints successfully? What proportion of those complaints stem from failures on wards arising simply from a lack of training? Would that not be a useful exercise for the department? Although I know it is difficult to introduce this principle of candour, it might well be that if someone were to look at this and some honest assessments were made in hospitals, we might find out that a lot of it has to do with people simply not being trained properly.
Earl Howe
I agree with the noble Lord. It would be an interesting exercise. If I can glean relevant facts from the National Health Service Litigation Authority, which is the holder of the corpus of information in this area, I would be glad to share it with noble Lords. We do not dispute that skills are an issue. They clearly are. That is why we have instigated the Cavendish review, but it is important that we set about this in the right way.
The Secretary of State has clearly stated in his mandate to Health Education England that it should work with employers to improve the capability of healthcare assistants. That will include the standards of training that they receive. In developing a strategy and implementation plan to achieve this, Health Education England will build on the Cavendish review, when it is before us, and the work of Skills for Health and Skills for Care on minimum training standards for health and care support workers.
The Government accept that the arrangements for induction, training and performance management of this workforce vary between providers. We do not duck the importance of training and I want to stress that. The Cavendish review has been tasked with reviewing how the training and support of healthcare and care assistants can be strengthened so that they provide safe and compassionate care to all people using health and social care services. The noble Lord, Lord Patel, is right that Amendment 23A and whatever recommendations emerge from the Cavendish review may not necessarily be mutually exclusive. At the same time, it surely makes sense for the Government to look at all these issues in the round before pronouncing one way or the other on prescribing specific arrangements around certification, new criminal offences or whatever the case may be.
I hope the noble Baroness will agree that the Government should be afforded the time to consider any recommendations from the Cavendish review and the respective roles of employers, commissioners, regulators and other bodies before taking further steps. At the same time, I hope that she will feel reassured by what I have said today and that Health Education England and the Government have taken sufficient steps in committing to the training and development of this workforce, and that she will feel able to withdraw her amendment.
Baroness Emerton
My Lords, I thank the Minister for his summary and noble Lords who have taken part in this debate. I think there is no doubt in anybody’s mind that this is a very important subject, which we cannot ignore. In his summary, the Minister suggested that the Government need to take this away and look at it. I think that we, too, need to take it away and look at it, and at what the Minister said. Will the Minister tell us when the Cavendish report is to be published? We understood that it was signed off two or three weeks ago, and we need to understand where it fits into the picture with the CQC. I thank the Minister for his comments. I will withdraw the amendment tonight on the basis that I will return to it later in the passage of the Bill. I beg leave to withdraw the amendment.
Lord Rea
My Lords, I must apologise for not moving this amendment in its proper place on the first day in Committee. That was due to a misunderstanding on my part, and I apologise.
I put down this probing amendment to draw attention to the importance and relevance of interprofessional education in preparing different health and social care staff to work well together. It is recognised across the board that caring for the increasing proportion of the population with long-term problems requires teamwork. This will be more effective and economically efficient if the different members of the team understand the role and approach of other members of the team with whom they need to collaborate, be they social workers, nurses, physiotherapists, pharmacists or doctors. At present, each healthcare worker may have no proper conception of the abilities and skills of those in another discipline, and that may lead to inefficient working, inappropriate decisions and learning by trial and error, if at all. One thinks perhaps of Stafford.
The duty to promote integration is much used in legislation but is mainly directed to administrators at a high level. For example, in last year’s Health and Social Care Act the NHS Commissioning Board and clinical commissioning groups were directed to take note of the need for integration, and in this Bill promoting integration is a requirement on local authorities. In Clause 88, in which this amendment sits,
“HEE must have regard to … the desirability of promoting the integration of health provision with health-related provision”.
The detail of how integration is to be achieved is left to the bodies concerned, although there may well be, and certainly should be, guidance, which I have not seen but which is perhaps to be published later. Perhaps the Minister can fill me in here. My amendment could perhaps be considered when formulating such guidance.
Interprofessional education needs to be carried out at educational or training institutions for clinical and social care professionals but also in continuing postgraduate education. Therefore, it is not only to Health Education England but to the General Medical Council, other professional bodies, royal colleges, universities, postgraduate deans and LETBs that this amendment is directed.
I do not have much time to describe the details of how IPE works, and this is not the right place to do so. Suffice it to say that it is not something I have invented off the top of my head but is a recognised discipline, led in this country by CAIPE, the Centre for the Advancement of Interprofessional Education. It has branches in several countries on both sides of the Atlantic and has produced a number of publications describing the method and the institutions that have adopted it. It has also commissioned several evaluative studies which have confirmed its effectiveness. CAIPE is in touch with the Department of Health, and positive discussions have taken place. The Minister will probably know about them. In fact, I understand that CAIPE is due to meet Health Education England to discuss possible future collaboration. Interprofessional education is up and running in at least five universities, including Leicester, De Montfort, Bristol, Sheffield Hallam and Aberdeen.
I am aware that there are plenty of problems involved in getting different professions to receive co-ordinated education, not least logistics and timetabling. Students may not at first appreciate the need for understanding and co-operation, so do not always take kindly to what they may see as a diversion from their task of learning the skills needed for their chosen profession. However, once they meet each other, understanding can grow. Directors of education need to be convinced of the benefits of IPE. Its benefits are summarised well in a recent WHO task force report:
“After almost 50 years of inquiry, there is now sufficient evidence to indicate that interprofessional education enables effective collaborative practice which in turn optimizes health-services, strengthens health systems and improves health outcomes ... In both acute and primary care settings, patients report higher levels of satisfaction, better acceptance of care and improved health outcomes following treatment by a collaborative team”.
I shall be most interested to hear the Minister’s views on IPE and whether he agrees that it deserves to be more widely used in the National Health Service. I beg to move.
Baroness Wheeler
My Lords, I shall make a brief intervention in support of the desire of my noble friend Lord Rea to draw our attention to the importance of interprofessional education if we are to develop health and social care staff’s mutual respect, understanding and knowledge of each other’s professions that will bring about the collaboration, joint working and integration of care and support that we need. My noble friend describes this as staff knowing “how the other half lives”—in other words, staff knowing about each other’s services and how they operate, and being aware of boundaries, interdependence on achieving outcomes and competing agendas. He commends IPE because it provides an established model of collaboration and co-operation on the ground.
The amendment refers back to our earlier debate on integration and the need for multidisciplinary teamworking, and it will also be relevant to the debate that we will come to shortly on the importance of continuing professional development for healthcare workers. It adds promoting the use of joint IPE for clinical and social care staff as a matter that HEE must have regard to in relation to its responsibility for promoting the integration of healthcare and health-related provision.
My noble friend helpfully sent me a considerable amount of background information on his amendment in which, as a former HR professional, I was genuinely interested. It included extensive research by the Centre for the Advancement of Interprofessional Education, which my noble friend referred to, supporting the effectiveness of interprofessional education and training. My noble friend also referred to discussions between CAIPE and Health Education England to explore HEE’s role in taking IPE forward and embedding it in professional curricula. This is to be welcomed. Two-thirds of UK universities with two or more undergraduate programmes in health and social care include IPE, so these discussions will be helpful. These programmes cover a wide range of professions, including nursing, social work, physiotherapy, pharmacy, clinical psychology and radiography—all professions that are increasingly required to work flexibly across different care settings as part of multidisciplinary teams.
The Nuffield Trust evaluation of the first year of the inner north-west London integrated pilot that I referred to earlier underlined the importance of staff in multiprofessional teams having a high level of commitment to the pilot as a key factor in improving collaboration across different parts of the local health and care system. However, the evaluation also reminds us of the international evidence that integrated care takes years to develop and that a minimum of three to five years is needed to show impact in relation to patient experience and outcomes. Culture change, moving from silo to collaborative working among professionals, is a slow process, however committed we are to trying to make it work. I look forward to the Minister’s response to my noble friend’s amendment.
Earl Howe
My Lords, if I may say so, the noble Lord, Lord Rea, has explained his amendment in a very compelling way. Amendment 31 seeks to amend Clause 88(1)(h) so that Health Education England must have regard to the promotion of joint interprofessional education of clinical and social care staff where appropriate. As he is aware, much of the ground on these issues was covered in our earlier debates, when I hope I was able to reassure noble Lords that the Government take this issue very seriously. Clause 88 of the Bill, in listing the matters that Health Education England must have regard to in exercising its functions, is clear that Health Education England must support integration between health and care, and support staff so that they are able to work across different settings in health and social care.
In establishing Health Education England with a multiprofessional remit with responsibility for the development of all the professions, the Government have reinforced the importance of planning and developing staff in an interprofessional manner. As I mentioned, this approach is reinforced further in the Government’s mandate to Health Education England, which places a clear requirement on Health Education England, where appropriate, to develop multidisciplinary education and training programmes. I hope the noble Lord will agree that that is very much consonant with the principles that he was propounding in his contribution.
We entirely appreciate the importance of close working between the professions. I am sure that that is something Health Education England will consider carefully. I will write to the noble Lord if I can add any useful detail once I have had a chance to investigate further the issues that he raised and once I have discussed them with my officials.
However, I point out, as the noble Baroness, Lady Wheeler, did in our earlier debate, the importance of the recent commitment entered into by 12 of the national leaders of health and care, who signed up to a series of undertakings on how they will help local areas to integrate services. This was the document Integrated Care and Support: Our Shared Commitment—the first ever system-wide shared commitment. That document set out how local areas can use existing structures such as health and well-being boards to bring together local authorities, the NHS, social care providers, education, housing services, public health and others to make further steps towards integration. The ambition here is to make joined-up and co-ordinated health and care the norm. It works towards the first ever agreed definition of what people say good integrated care and support looks and feels like. That will be developed by national voices. There will be new pioneer areas around the country, to be announced in September of this year. One of the 12 partners of that shared commitment is Health Education England.
I hope that the noble Lord will be reassured by what I have said. I am entirely in tune with the spirit of his remarks. I will be happy to write to him if I have further and better particulars to impart, but for now I hope that he will feel able to withdraw his amendment.
Lord Rea
My Lords, I thank the noble Earl for a very full reply and for the sentiments that he expressed. I shall read with interest his reply in Hansard, and I look forward to any further information that he may send me. I am sure that CAIPE will be very interested to read his remarks, too. I thank the Minister very much. I beg leave to withdraw the amendment.
EU: Advocates-General of the Court of Justice
(11 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Wallace of Saltaire
That this House takes note of European Union Document No. 7013/13, the draft Council Decision increasing the number of Advocates-General of the Court of Justice of the European Union, and, in accordance with Section 10 of the European Union Act 2011, approves Her Majesty’s Government’s intention to support the adoption of that draft Council Decision.
Lord Wallace of Saltaire
My Lords, I am grateful to the European Scrutiny Committee for its thoughtful consideration of the draft Council decision increasing the number of advocates-general at the Court of Justice of the European Union from eight to 11. As the House will be aware, this proposal is subject to the EU Act 2011 and, before Ministers can take a position in Council, parliamentary approval must be secured for the UK’s position. That is the purpose of our debate today.
The Lords European Union Committee has reported on this subject twice, in 2011 and again in April this year. An increase in the number of advocates-general at the Court of Justice of the European Union will be of benefit to British businesses, which will gain from the increased capacity of the Court. The proposal is to increase the number of advocates-general to nine from 1 July 2013 and to 11 from 7 October 2015. The first additional advocate-general will be a permanent Polish advocate-general. Under Declaration 38 on Article 252 of the Treaty on the Functioning of the European Union, member states agreed in 2007 that, if there was an increase in the number of advocates-general, Poland would have a permanent advocate-general and no longer take part in the rotation of advocates-general. This will bring Poland in to line with the other “Big Six” member states, including the UK, which all have permanent advocates-general. The other two additional advocates-general will increase the existing rotation system from three to five. Under the current arrangements, we expect that the first two additional advocates-general appointed in October 2015 will be Czech and Danish.
The Government believe that this reform will help to maximise the efficiency of the Court and promote the effective passage of justice, as it will allow the Court to increase the speed at which it handles cases and improve the quality of its decision-making. However, more efficient operation of the Court will require more than the appointment of these three additional advocates-general to the Court of Justice. Peers will already be familiar with the reforms that the Court has introduced in the last two years, which include: increasing the number of judges in the Grand Chamber from 13 to 15; abolishing unnecessary procedural elements, such as the requirement to read the report for the hearing in full, and thus the need to produce the report; providing for the appointment of temporary judges to the Civil Service Tribunal; and establishing a new office of vice-president in the Court of Justice and the General Court. Today’s debate focuses on the latest of these wider reforms, but it will not be the last.
The Government share the eagerness of the European Union Committee for the question of additional judges at the General Court to be resolved. Negotiations on that reform have been ongoing since March 2011 and currently are at an impasse. In common with many other member states, the UK had concerns about the proposals that have been made so far. However, the Government are keen to work with other member states to agree a way forward. With that in mind, we look forward to receiving new proposals to consider. In addition to negotiations on extra judges at the General Court, the Government will continue to work closely with the Court, the Commission and other member states to identify and take forward both long-term and short-term solutions to the General Court’s backlog. We will continue to explore the full range of options for structural reform to identify a solution that meets the needs of all concerned.
To return to the specific issue today, the Government broadly support this proposal. In particular, it meets three key goals of our policy towards Court reform. Those goals are to promote the effective passage of justice, for there to be a clear need for any reform, in this case the additional advocates-general, and for costs to be contained. The role of advocates-general is to produce non-legally binding opinions for the Court of Justice to assist it in reaching its judgment. They do this in more than 50% of cases, particularly in cases that raise a new point of law. As there is no appeals process in the Court of Justice, their additional reasoned submissions help the Court to provide effective justice. As the number of cases before the Court of Justice continues to rise, by 4.5% in 2012, the Government are satisfied that there is a need for additional advocates-general to manage the workload of the Court of Justice.
I turn now to the particular issues that the EU Committee has raised with the Minister for Europe: the timetable for appointments and Council decisions, and funding. To take the timetable for appointments and Council decisions first, the Court would like to have the first additional advocate-general, the Polish one, in post from 1 July 2013 and the other two from 7 October 2015, when there will be a partial replacement of the members of the Court. Given that this request was made by the Court only on 16 January 2013, the 1 July date was always an ambitious timetable for the first advocate-general. In addition to our requirement for an affirmative debate in both Houses before Ministers can take a position in Council, Poland also estimates that the appointment process will take four months. However, the Government are still hopeful that, if parliamentary approval is secured today in the House of Lords and tomorrow in the House of Commons, the Council will be able to approve the decision under the Irish presidency, which ends at the end of June. If the 1 July deadline is missed, member states can appoint the first advocate-general at any point from then onwards and do not need to wait until October 2015. We know that the Court and other member states are keen to have the Polish advocate-general in post as soon as possible, so we anticipate that happening quickly.
Lord Bowness
My Lords, I am extremely pleased to see this Motion before the House tonight, and I thank my noble friend the Minister for his very full explanation. Indeed, he has pre-empted and answered a number of the questions that I would have sought to put to him.
The Justice, Institutions and Consumer Protection Sub-Committee of the European Union Committee has taken a close interest in this matter since its report on the work of the European Court of Justice. Among its recommendations was one that additional advocates-general should be appointed. They play an important part in complex cases, delivering a non-binding opinion on the legal issues involved and a recommendation as to how it should be decided. The figures that we had for our report suggested that a report from an advocate-general was produced in about half the cases brought to trial. It was a recommendation in the report that the number of advocates-general be increased. Before any noble Lords go away with the idea that perhaps that request was made prematurely or without thought, it is worth pointing out that there are still only eight advocates-general for 27 judges, and there were only eight for 15 judges.
In the committee’s follow-up report, published just before I relinquished membership and chairmanship of the Justice, Institutions and Consumer Protection Sub-Committee, we repeated the recommendation and urged the early appointment of the new advocates-general. I am delighted that the Government have now been satisfied that the appointment of the advocates-general should go ahead. I welcome that, and the assurances from my noble friend that the first appointment of the Polish advocate-general should be made during the course of the Irish presidency.
With regard to Declaration 38 on Article 252 of the Treaty on the Functioning of the European Union, I ask my noble friend whether he can clarify the position. It states unambiguously in a declaration annexe to the treaty of Lisbon that the advocates-general will be increased by three if that request is received from the Court. It says that,
“the Council will, acting unanimously, agree”,
such a request. Out of interest, I would like to know what happens if the Council does not agree unanimously. What prevails—the absence of unanimity or the declaration annexe to the treaty? Closer to home and more domestically, what would happen if your Lordships’ House or the other place did not agree? What would then take precedence: the treaty declaration or the provisions of the European Union Act? Dare I ask if we would have to seek the opinion of the Court of Justice of the European Union?
The Government have agreed in principle for some time, subject to the additional costs being found from the Court’s own resources, and they are now satisfied that this is the case. There are similar concerns about another recommendation of the committee: the appointment of additional judges of the General Court. The noble Baroness, Lady Corston, will pursue this in the debate this evening and I am delighted that the sub-committee is fortunate in having her as its new chairman. I had the privilege of serving under her when she chaired the Joint Committee on Human Rights when she was a member of the other place. I know that she will be an excellent chairman and advocate of the committee’s views. I am sure she will be pursuing the cause of additional judges with considerable diligence.
As I said, I am very pleased the Government have been able to overcome their financial reservations about expenditure in respect of the advocates-general. I understand that they are keen to restrict expenditure and I also understand that it is very easy to say that new expenditure should be found from within existing resources. However, with great respect to my noble friend, it is important, when that argument is advanced, to ensure that it is possible for these important things to be met from existing resources. Preserving the quality and effectiveness of the European Court system is important and we need to remember that expenditure on the courts represented only 0.26% of the whole budget of the European Union in 2011.
The Minister warned the committee that the issue of judges was unlikely to be pressed by the nearly ended Irish presidency and the forthcoming Lithuanian presidency. I hope that the Minister will see what the Government can do to bring the question back to the table. The administration and dispensing of justice, like the democratic process, has elements that make pure efficiency hard to achieve. Tonight’s procedure under the European Union Act 2011 does not exactly streamline the decision-making process in EU matters. It was an Act strongly advocated by some who are equally strong advocates for efficiency in the decision-making process, so to obtain the best of both cannot always be done in ways that are the most efficient. This is the price we pay for justice and democracy, and a failure to appreciate this leads, I fear, to a situation where you know the cost of everything and the value of not very much.
Baroness Corston
My Lords, it is a pleasure to follow the noble Lord, Lord Bowness, in this important debate. I should like to place on record the committee’s appreciation of the fact that he served the committee with distinction and, in the post of chairman, conducted himself with absolute consideration for members and with great diligence.
This debate follows on from that on 23 July last year, under Section 10 of the European Union Act 2011. It requires a positive vote in both Houses before the Government can support any decisions in council. In July last year, the House debated a motion to approve amendments to the statute of the Court of Justice of the European Union and the appointment of temporary judges to the Civil Service Tribunal. The Court of Justice, the General Court and the Civil Service Tribunal, which together comprise the Court of Justice of the European Union, play a fundamental role in the effective functioning of the single market and the European Union. The Court of Justice and the General Court rule in matters of freedom of movement, of persons, goods and services, equal treatment and social rights, fundamental rights, European citizenship and trademark and competition cases. It therefore follows that their decisions have a direct impact on the functioning and operation of the single market and on the lives of the citizens of the European Union. So an efficient and effective court system capable of delivering justice in a timely manner in matters of EU law is essential for the rule of law within the EU.
The function of advocates-general is to support the work of 27 judges. They produce written opinions for the Court, setting out their understanding of the applicable law in each case and recommending how, in their view, cases ought to be decided. Their origins lie in the French legal system. Although their opinions are not legally binding, they tend to offer more comprehensive discussions of the EU law governing each case than the judgments themselves. As the noble Lord, Lord Bowness, said, in 2010 the EU Committee conducted an inquiry under his chairmanship into the workload of the Court, prompted by concerns about the Court’s ability to fulfil its functions effectively and in a timely manner. It noted that the ratio of judges to advocates-general was 15:8 in 2003, but 27:8 by 2011, following enlargement of the European Union. The committee therefore recommended that the number of advocates-general should be increased as soon as possible in order for the Court to increase the speed with which cases could be dealt with while improving the quality of decision-making.
In January this year, the committee was pleased to learn that the Court had requested an increase in the number of advocates-general. It is proposed that the first additional advocate-general would be appointed as soon as possible this year, with the other two taking up their posts in October 2015. It was very gratifying to hear the Minister informing the House that the Government were entirely happy with those proposals. The appointment is a welcome step and it can be achieved without the significant difficulties posed by treaty reform. It is to be hoped that people in another place take the same view.
I would like to take this opportunity to talk about the equally important issue of tackling the backlog of cases in the General Court by increasing the number of judges. In 2011, the committee commented on the backlog of cases and delays in the General Court, and recommended that the number of judges appointed to that court be increased by one-third. Indeed, some organisations, such as the Confederation of British Industry, had expressed concerns about delay and the effect on business within the European Union. Shortly after the report was published, the Court asked the Council to increase the number of judges by 12 which, in the view of the president of the Court of Justice, was the only solution to afford the necessary flexibility to tackle the increase in the number of cases pending before the General Court and the time needed to deal with them. During the debate on 23 July last year, the then Minister, the noble Lord, Lord Howell, said:
“The delay resulting from this backlog of cases is bad for British businesses, which wait months or years for their own case or cases of relevance to them to be heard and determined”.—[Official Report, 23/7/12; col. 564.]
The Commission agreed and commented on the Court’s request by stating that,
“an urgent solution is needed for the considerable number of cases currently pending at the General Court. Only by immediately increasing the number of judges … will it be possible to stem the flow of new cases and effectively tackle the backlog”.
In July 2012, the Council established a Friends of the Presidency group, which included representatives from all member states to facilitate examination of the case for increasing the number of judges in the General Court. The group met regularly but failed to reach agreement. In December 2012, the Cypriot presidency put forward a proposal for consideration at the General Affairs Council, whereby nine additional judges would be appointed to the General Court under a rotation system. Although it appears that there is agreement on the need to increase the number of judges, there is evident disagreement over the rotation system, and the proposals were rejected.
Lord Rowlands
My Lords, I associate myself fully with my noble friend’s observations about the chairmanship of the noble Lord, Lord Bowness. I have had the privilege of serving under him for more than three years, and if anyone wanted to find a way to be a model chairman, they should follow him. We have been a disparate group over these past three or four years. Europe encourages lots of disparate views but he somehow managed, throughout the whole of his chairmanship, to achieve a consensus through persuasive patience. I, too, acknowledge his importance and he has been a marvellous chairman.
I welcome, too, the acceptance by the Minister of our recommendation to increase the number of advocates-general. Whatever one’s views about the court’s broader role—it has been controversial and previously I have made observations about its role and said that it might have been on a mission to drive ever closer union and so on—we know simply that we need a fully functioning Court of Justice if we are to remain in the single market and if it is to be effective. It is not just in the interests of some European ideal, it is strongly in British interests that the Court of Justice works effectively, and produces quality and timely justice.
Given the new role that the court will be playing in the field of justice and home affairs, there is a potential time bomb. It is not just the fact of the number of cases but the relationship between the work that the court will play in the new area of the administration of justice, which has to take priority because judgments have to made quickly, and, more broadly, the court’s other cases and judgments that could be displaced. Interesting figures are quoted in the report. Table 1 reveals that the number of preliminary rulings that have come before the Court of Justice concerning freedom, security and justice, was 17 in 2009, 38 in 2010, and 44 in 2011. That represents a considerable increase, both in terms of numbers and proportion. If that were to continue, the relationship between the work of the Court of Justice in its role as regards freedom, security and justice and its more general role could have an important and serious effect.
When this matter was raised with the Minister, David Lidington, he accepted in his oral evidence that there was a considerable proportionate increase but argued that only 10% of preliminary references in 2001 came from justice and home affairs. However, that 10% figure is increasing. The Minister admitted in his evidence that we really do not know the potential. The figures are beginning to show, and I believe that they will show, that as the Court of Justice increasingly becomes involved in freedom and security issues there will be more urgent cases and, therefore, delays to cases in the broader work of the court could occur.
We wanted to raise this matter and are glad that after initial hesitation the Government have accepted our recommendations on advocates-general. As the noble Lord said, they were actually written into the Lisbon treaty, but the Minister should also be aware that sooner or later we will have to address again the issue of the number of judges. I understand the impasse and the complications among all the member states on who should be appointed, who should appoint and which country should be given the appointments. Mr Lidington at least accepted that advocates-general do not raise those sorts of issues.
I was particularly interested in the statement made by the noble Lord, Lord Wallace, which was very different from that of his predecessor. The noble Lord, Lord Howell, was very chary of the whole idea of new judges, but I think that the noble Lord, Lord Wallace, has said that the Government have in principle accepted that concept. If that is the case, we as members of the committee are very pleased.
Lord Liddle
My Lords, this is the third debate in which I have spoken on the European Court of Justice from the Opposition Front Bench. We support the strengthening of the system; it is essential to the effectiveness and quality of justice in the European Union. We seem to be getting there at least step by step. The proposal for additional advocates-general has our support. The idea that Poland should have a permanent position seems to be in accord with the acceptance that that country is one of the major member states of the Union. It grants Poland the equality of status that it has long sought.
It is significant that the Government have moved to support this proposal. It shows that at least they accept the pragmatism of the view of the noble Lord, Lord Rowlands, whereby if you are going to have an effective single market you have to have an effective form of justice. I have to say, however, that there are many people not present tonight but who occupy the government Benches and talk about renegotiating a relationship between Britain and the European Union, which, in essence, boils down to free trade and political co-operation. If that is the vision of the modern Conservative Party about Britain’s relationship with the EU, it is not one in which you would have this system of law which upholds the single market. We need clarification from the Government as to what they envisage the role of the system of law in the European Union to be. I very much hope that what they are doing now, on a case-by-case basis, demonstrates that they accept pooled sovereignty in areas where we have chosen to accept it, and that part of this involves a form of supranational decision-making and supranational law.
My second point is that I support those noble Lords who have raised the question of why progress is limited, so far, to the issue of additional judges for the general court. That is clearly an important part of the reform package. I listened very carefully to what the Minister said about the Government broadly supporting this proposal. Do they support it or do they not? Do they regard the requirement to keep within the existing budget of the court as a binding constraint in all circumstances, or do they not? Is it a binding constraint or is it not? If they say it is a binding constraint, what efficiency proposals are the Government putting forward to the court in order that the cost of the additional judges could be met from within the budget?
I suspect that we are seeing a divided Whitehall here, with some departments recognising the need for additional judges, while others are trying to argue that the cost has to be kept within the existing budget. It is all very well making these declarations but how will it be done?
I agree very much with what the noble Lord, Lord Bowness, said about not differentiating between cost and value. It should be obvious to everyone that the value of more efficient decision-making on issues of central concern to our economy, such as the single market, would greatly exceed the cost. Where do the Government stand on this point?
I also endorse what the noble Baroness, Lady Corston, said about the value not just of greater efficiency of justice in terms of the single market, but also in terms of the basic rights of European citizens. We welcome the limited steps that have been taken. Of course, one should search for efficiency and cost saving all the time, but can the Government give us an assurance that they will not block a proposal to increase the number of judges purely on cost grounds alone?
Lord Wallace of Saltaire
My Lords, this debate has moved more widely than the decision to appoint another three advocates-general. I take it that we are all agreed that we have no objections to the appointment of three additional advocates-general, so I therefore trust that we may agree the Motion—which is the trigger for this debate—at the end of the debate.
On that point, the noble Lord, Lord Bowness, asked about the exact meaning of Article 252 of the TFEU. Many of these things require juristes-linguistes to play around with the words a great deal. I am told that the Council, acting unanimously, can decide, in effect, to increase the number of advocates-general. Declaration 38 is a declaration of intent but the Council has nevertheless to act unanimously to approve a decision. If the British Government, having failed to achieve the agreement of both Houses of Parliament, were to block it, it would not go forward and that would have a damaging effect on UK relations with Poland. The Poles are very much looking forward to joining the other big five, so to speak, in appointing their own advocate-general.
Care Bill [HL]
(11 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Patel
“(e) support the continuing professional development of medical professionals in its area.”
Lord Patel
My Lords, one often feels during any legislation that by the time it finishes the Minister—in this case, the noble Earl—must wish that he had included in the Bill something that he had forgotten. This amendment is it and I hope that he will see it in that light, particularly as continuing professional development was a part of the original draft Care and Support Bill. However, it was taken out of this Bill and I wonder why. I am sure that the Minister knows why and will tell us. I feel that somehow the page got turned and it was left out, rather than being deliberately not included. None the less, I will make a case that it should be included because it is one part of education that should be part of HEE and LETBs.
The amendment requires the local education and training boards to set out in their education and training plans how they will support continuing professional development. The NHS constitution commits all employers supplying NHS-funded services to provide staff with personal development and access to appropriate training for their jobs. Continuing professional development is important for healthcare professionals to maintain and improve their professional skills. While you might go to medical school for five years and undertake postgraduate study to be a specialist or a GP for six or seven years or even longer, continuing professional development is for the rest of your professional life. For many specialties, without continuing professional development you cannot provide up-to-date care.
Continuing professional development is particularly important for those working in medicine but it is also important for all other clinicians. Doctors and nurses need constantly to update their skills and keep abreast of the latest developments. Good CPD is therefore vital for improving patient care and spreading innovation throughout the NHS.
Evidence of participation in CPD activities is a compulsory requirement for the revalidation of doctors in order to demonstrate continuous fitness to practice. In April 2013, the General Medical Council published the results of a study that aimed to assess the impact of CPD on doctors’ performance and patient and service outcomes. The study underlined the importance of CPD in maintaining competence and identified a lack of funding and a lack of allocated time as key barriers to undertaking CPD.
CPD used to be funded through the national multi-professional education and training budget—I remember because I used to be given an annual budget. If you did not spend it, initially you could not carry it over but latterly you could. Lots of other doctors did not take advantage of it, so those like me who did benefited even more. However, it is no longer funded in that way. Currently, the funding is tight and there is a risk that CPD funding for medicine and other clinicians will be cut at the expense of other areas. The Council of Deans of Health, for example, says that reductions in education and training budgets are most likely to impact on CPD compared with other areas of education and training.
I saw that as part of its strategic intent document, Health Education England recently announced that it would ensure greater investment in CPD for staff currently in post, but I feel that further clarification is needed about what this will mean in practice. It is presently unclear what level of funding is provided for CPD across the NHS. In their response to the Future Forum report on developing the NHS workforce in June 2011, the Government said that they would,
“explore ways to provide greater transparency about the overall level of investment across the [education and training] system, including for continuing professional development”.
I am sure that the Government are taking steps to make sure that this happens and I am keen to know what the noble Earl has to say.
At present CPD is a responsibility for healthcare providers, but there is no requirement in the Bill on HEE or LETBs to support this or to monitor how providers are supporting CPD. Again, the GMC-commissioned report, The Effectiveness of Continuing Professional Development, found that trusts varied from being “generous” to “not interested” in providing CPD opportunities for staff. While both Health Education England and the local education and training boards have a clear role to support training more broadly, it is unclear to me how they will currently support CPD for all clinicians as distinct from other types of training that apply to other healthcare workers. My amendment would therefore place a clear requirement on local education and training boards to set out how they would support CPD for clinical professions. I hope that the Minister will find in favour of it, particularly as I feel it is something that got left out, having been included in the original draft Care and Support Bill. I beg to move.
Lord Ribeiro
My Lords, following the disruption of medical education that followed on from the MTAS debacle in 2007, one of the outcomes, which was a positive one, was the development of schools of surgery—a concept that we took on from the anaesthetists. This required personnel from the Royal College of Surgeons and the deaneries to take responsibility for the delivery and planning of training and education. However, this was very much confined to trainees. There was no requirement to extend it to consultants in terms of CPD.
However, we all know that health education does not end with certification; it is a continuum that occurs throughout one’s career as a professional doctor. It is a requirement to keep up to date. It is a requirement by the GMC to ensure that one knows what is happening within the wider medical field. One of the problems for doctors is having the time to go away and attend courses to improve one’s CPD. The amendment of the noble Lord, Lord Patel, places an obligation on HEE and the LETBs to support CPD and, in doing so, to allow the release of NHS staff, as he quite rightly said, to attend courses and educational programmes. It is also important to provide consultants and medical personnel of all disciplines with the opportunity to work in the wider NHS. It has been one of the basic tenets of the NHS that contributions in the wider NHS benefit not only the NHS but the participants, who learn a lot more about its workings. That, too, can improve and enhance one’s continuing development.
In that context, I welcome the suggestion made today several times by speakers—certainly by the noble Lord, Lord Hunt of Kings Heath, in that he made reference to the Francis report. One thing that came out of the Francis report was a clear statement that he would recommend that the GMC and the royal colleges work together in providing visits to educational centres. That was stopped some time ago. I think that there is a real opportunity to reintroduce that and I hope that the Minister, in responding, will address that issue. Here again is an opportunity, because in the past lessons were learnt by consultants visiting hospitals and looking at the education provision.
The very presence of peer groups in a hospital often helps to raise standards. Therefore, not only would CPD provide another training opportunity for those who participate but it would improve local education provision. The quality assurance of the training it would provide would ensure that, in the long term, patients benefited from such visits. For that, if nothing else, I support the amendment of the noble Lord, Lord Patel. We need to include something on continuing professional development because the whole emphasis of HEE is very much on training and trainees and it has very little to do with those who continue right through to retirement.
Lord Turnberg
My Lords, I, too, strongly support the amendment of the noble Lord, Lord Patel. Like him, I am concerned and rather surprised that there is no mention in the Bill about the need for trusts and other providers to support their staff in continuing professional development. We really cannot afford to have any staff working in front-line clinical services not keeping up to date when we know that clinical practice changes rapidly from month to month.
New tests, new diagnostic methods and new treatments are coming along fast and furious. Unless members of staff are given the time and facilities to keep abreast of all of those, we will get poorer and more out-of-date care. As the noble Lord, Lord Patel, said, it is unfortunately the case that when health budgets are stretched, as they almost always are, CPD budgets are the first to go. Time off to attend courses or to engage in appraisals disappears quickly, as everyone in the service is rushed off their feet.
It is in just those circumstances that a stand should be made. The amendment of the noble Lord, Lord Patel, makes it clear that the LETBs must include the need for employers to allow the time for CPD development of their staff. How else will doctors, for example, be able to comply with the mandatory requirement of the GMC to revalidate at regular intervals? We have struggled both long and hard to get revalidation mandated and we cannot afford to see it eroded now at the same time as the responsibility for funding CPD is falling to employers. LETBs must be given the teeth to insist that time and support for CPD are included in their educational contracts with trusts.
Baroness Emerton
My Lords, I support the amendment but I also support what the noble Lord, Lord Patel, said, about CPD being extended to other healthcare professionals. One thing that has emerged as a barometer from the questionnaires is that, often, the culture of an organisation is affected by the fact that there has been no appraisal system and no continuing professional education built into the programme for other healthcare professionals—nurses, physiotherapists and radiographers. There is an important issue here: all staff delivering care need to have regular appraisals and regular updating of their continuing professional education.
Baroness Wheeler
My Lords, we support the amendment. Our amendment on this issue relating to Health Education England’s national role in planning education and training for healthcare workers was considered last week. We were, in particular, keen to probe the role that LETBs will play in that important area.
The amendment would ensure that the annual reports of LETBs specify how they propose to support continuing professional development in that area. We strongly support that. The amendment specifies the medical professions, but it is applicable across the healthcare workforce. CPD is about ensuring that structured learning continues throughout one’s career, with clear objectives set and progress logged and regularly reviewed. CPD complements formal training and enables practitioners and other staff to acquire new knowledge and skills, as well as to maintain and improve their standards across all areas of their practice.
The HEE mandate has a small subsection on supporting the professional and personal development of the existing workforce, underlining the importance of HEE leadership and work with LETBs, but that aspect is far from being given the importance that it needs in the mandate—the point made by the noble Lord, Lord Ribeiro. There is of course emphasis elsewhere in the document on the workforce needing to be flexible and receptive to research and innovation, but CPD is wider than just keeping up to date and applies to values, behaviours and the ability to understand how one’s working role relates to the wider service, as we heard during our earlier debate on integration.
I could not see CPD addressed in any depth on the HEE website, although we join other noble Lords in welcoming the general, across-the-board progress that HEE has made in its new role so far. HEE recognises that providing leadership and ensuring greater transparency in the investment that employers make in their workforce and in supporting and championing multidisciplinary and professional CPD is a strategic priority. Does the Minister agree that HEE needs to step up and develop its CPD strategy as a major priority, and does he accept that the mandate needs better to reflect the importance of CPD?
The HEE website also mentions that it will be allocating a limited amount of central funding for LETBs to invest in CPD, particularly for staff employed at Agenda for Change bands 1 to 4 and equivalent staff employed as part of primary care teams in general practice, community pharmacy and other community-based employers.Does the Minister have any further information on how the Government expect HEE to take this forward with LETBs?
Last week I mentioned the recent member survey by the Royal College of Nursing on CPD, showing how varied the time allocated by NHS trusts is. It is worth going into the findings in a little more detail today. The survey found that in the past 12 months almost a third of respondents had received no CPD that was provided or paid for by their employer. By sector, just a third of respondents in the NHS received no training in the past 12 months, compared to just under a quarter of those working in the independent or voluntary sectors. Just over a third said that the amount of CPD provided had decreased in comparison to the previous year, while 45% said that it had stayed the same.
Interestingly, overall, members working in the NHS were more likely than those working in the independent and voluntary sectors to report that the amount of CPD undertaken had decreased. Obviously, CPD is a mix of both employer-supported and resourced training and personal development learning resourced by the individual, either in their own time or with their own money. However, the RCN survey shows a very worrying trend in the importance employers place on providing CPD. Can the Minister comment on this and on how the problem can be addressed in the future? Is he confident that HEE or LETBs will have the resources to address this problem?
Our earlier amendment was similar to the wording that the Government included in the original Bill but subsequently deleted. I am sure the Minister will explain his thinking behind this and, as the noble Lord, Lord Patel, fully expects, delight us all by announcing that he has decided to put the CPD wording back in.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I make no apology for repeating my firm belief that the staff working in our NHS and public health system are the health service’s most precious resource. We must do all we can to ensure that staff have and continue to have the right values, training and skills to deliver the very highest quality of care for patients.
Clause 93 requires local education and training boards to publish an education and training plan for each financial year. The education and training plan must set out the local education and training board’s proposed investment in its current and future workforce for the following year. Note the word “current” in this context. In developing an education and training plan, the Bill makes clear that a local education and training board must consult with and have regard to the local priorities of, among others, the NHS and health providers and the commissioners that it represents.
The noble Lord, Lord Patel, asked what level of funding is attached to CPD in the NHS. The answer is that investment in CPD is really a decision to be taken locally. As I indicated, local providers and commissioners are best placed to decide what ongoing professional development their staff need. It will be their job to feed that in to the LETB as the local education and training plan is developed. I have already spoken in reply to an earlier group of amendments about the importance of continuing professional development, and the leadership role that Health Education England and local education and training boards can play in supporting this.
The noble Lord, Lord Patel, and the noble Baroness, Lady Wheeler, asked what happened to the reference to CPD in the draft Bill. The answer is that we widened the description in Clause 84(6) so that the Bill states that:
“HEE may, with the consent of the Secretary of State, carry out other activities relating to … education and training for health care workers”.
This still very much includes CPD. I emphasise that we consider this to be an important part of the way HEE may exercise this power. The NHS constitution sets out that staff can expect employers to invest in their development, and that all healthcare providers must take this issue seriously. Employers have a clear responsibility to provide their staff with the support and personal development they need, as well as access to appropriate training to enable them to fulfil their duties. However, Health Education England will play a crucial role in providing leadership in supporting employers in this area. The mandate sets out that Health Education England will work with LETBs and healthcare providers and commissioners to ensure that professional and personal development continues beyond the end of formal training to enable staff to deliver safe and high-quality health and public health services, for now and in the future.
Lord Turnberg
I am sorry to interrupt again. I think the noble Earl said that we should leave it to the local providers to decide what or how much CPD individuals should have. We know, however, that at the moment local providers are very variable in how far they are willing to go along that route. The problem is that leaving it where it is certainly does not give any great confidence that CPD will be uniformly available in the service. Hence the amendment of the noble Lord, Lord Patel, which tries to give a little force and pressure to local providers so that they could indeed be sure that CPD was being provided. The noble Earl is full of good intentions, quite rightly, but we need a little more than that.
Earl Howe
I probably expressed the position less than well because I was seeking to indicate that CPD is inescapable. There are a whole host of reasons why providers and the LETBs cannot avoid a focus on continuing professional development. Equally, we do not want to prescribe any kind of ring-fenced budget for CPD, for the reasons we debated earlier: we are clear that we must leave it to LETBs to exercise autonomy in the way that they work out their local education and training plans. They will have to prioritise, inevitably, in certain cases and from year to year. It may be that they will have to make hard choices. The great thing about Health Education England is that, as a non-departmental public body separate from NHS England, it will have a dedicated budget which cannot be eroded by those who might wish to siphon money off to patient care, for example. I hope that, in that sense, the noble Lord, Lord Turnberg, can take some comfort. We are very clear that the prescription is there and that local providers cannot avoid addressing the needs of their employees for CPD, but at the same time we do not want to dictate to them how much to spend on this in any one year.
Lord Patel
My Lords, I thank the Minister for his reply. I have no doubt whatever that he speaks with conviction and is full of good intentions. However, the way in which he spoke makes me feel that he, too, has some doubt that local providers and employers will deliver on this. If LETBs do not have any duty even to collect information about continuing professional development, local providers may not take any notice of the issue; there will be that variability in their reactions to which the noble Lord, Lord Turnberg, referred. However, I have no doubt that the Minister and the department have the intention that this will be delivered. We will reflect on that. In the mean time, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, we now come to the tariffs to be imposed in respect of education and training. Clause 95 establishes a tariff-based system for funding clinical education and training, whereby providers receive the same payment for the same activity. This is intended to enable a national approach to the funding of clinical payments and to provide for equality of treatment between different providers. What the clause does not do is to provide for equality of treatment between the public and private sectors. The noble Earl will be aware of Monitor’s fair playing field review that looked at a number of different activities and the impact on different providers, including public sector providers, private sector providers and the third sector. On education and training it remarked:
“Many stakeholders voiced concern that the private or charitable sectors are able to employ clinical staff without facing the cost of training them”.
It has been reported recently that surveys show an increase in the use of the private sector by the NHS in recent years and enforced marketisation. The Section 75 regulations are likely to increase that. The question that I put to the Minister is, if the NHS is developing much more into a mixed economy, what is the provision for the private sector to contribute to education and training?
Lord Campbell-Savours
As a layman among all these very professional people, I raise a very simple point. Returning to the private care home paying workers something like £7 an hour, I presume that that care home, if it so wished, could use the LETB.
Lord Campbell-Savours
Perhaps that answers the question, but from the way in which the Bill is written I understood that it went wider than that and included care home staff. What about nursing homes? Nursing home workers are healthcare workers, are they not? I suppose that they are covered by both areas.
Earl Howe
My Lords, in so far as nursing homes are staffed by healthcare staff, those staff are certainly eligible to benefit from the education and training budget. Indeed, I should have clarified that in privately run care homes you might well find a nurse who is healthcare trained, and therefore is in a position to receive the benefit of the healthcare budget if they are an employee funded by the NHS.
Lord Campbell-Savours
Then let us take it to the next statement. What about the healthcare assistant working in a nursing home—in other words, in this particular sector, where I presume the LETB applies? Would that worker also be trainable under the system established under the Bill, or does that nursing home healthcare assistant also have access to other training facilities outside the provision being made here? In other words, does the employer have the option?
Earl Howe
My Lords, training can be delivered in a variety of ways. It can be delivered onsite and on the job within the healthcare or care setting. It can be delivered outside as part of a higher education course. Who funds that will depend on the status of the worker. If he or she is a healthcare worker, it is possible, as I said, that they are funded by the NHS. It is also possible that he or she is privately employed by the organisation concerned, and that organisation will therefore fund the course of education. So it depends. I suggest that in a care home it is more likely that the person would be designated as a care worker rather than a healthcare worker if they do not have a recognised qualification to their name. I do not think that there is any generic answer to the noble Lord’s question. I hope that I have been helpful in explaining the various situations that can arise.
Lord Hunt of Kings Heath
There are various definitions relating to LETBs. For instance, Clause 90(3) says:
“In carrying out its main function, an LETB must represent the interests of all the persons who provide health services in the area for which the LETB is appointed”.
However, the general interpretation on page 89 defines not “health services” but rather “the health service” as,
“the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006”.
My question is: does “health services” in Clause 90 equate to “the health service” in Clause 110, or is “health services” in Clause 90 a wider interpretation that embraces the argument of my noble friend Lord Campbell-Savours?
Earl Howe
It may be convenient for the Committee if I take together the questions of the noble Lords, Lord Campbell-Savours and Lord Hunt, because the noble Lord, Lord Hunt, asked me about the role of the independent sector in participating in training and indeed in funding it. Perhaps I may clarify that.
The Health and Social Care Act 2012 placed a duty on the Secretary of State to ensure an effective education and training system, as I mentioned earlier. The Act also placed a duty on commissioners of health services to ensure that providers support the Secretary of State in this duty when contracting with them. The Government have already put into place measures to deliver the Secretary of State’s education and training duty by amending the commissioning contracts and supporting regulations for the delivery of services, so they now require co-operation on education and training. This means that all providers of NHS services are expected to co-operate and, where appropriate, this co-operation will involve them providing education and training.
Lord Campbell-Savours
I have one final question. How can a person placing a relative in a care home know that the standard of care provided in that home by presumably trained healthcare assistants will be of a similar standard to that available under the arrangements proposed in the Bill for those who work directly in the healthcare sector of the National Health Service?
Earl Howe
The answer is twofold. First, the Care Quality Commission inspects every care home to a uniform standard. One of its duties is to ensure that the staff in a care home are sufficiently capable and trained to deliver care in the right way to the patients and service users who live there, taking into account the acuity of need of those people. Secondly, as the noble Lord may be aware, the Government have proposed that a system of star ratings should be reintroduced for both healthcare settings and adult social care settings. In that way the general public may have a much closer and more detailed sense of the quality of care provided in the care home, as assessed by the Care Quality Commission. Again, this is work in progress. The Care Quality Commission is working out its methodologies for delivering those star ratings, but if we get this right, I believe it will take us several steps forward in transparency of quality and the ability of members of the public to choose, in a much more meaningful way, the setting that they wish to see either themselves or their families benefiting from.
Lord Hunt of Kings Heath
My Lords, that has been extremely useful. The intervention of my noble friend Lord Campbell-Savours has been particularly useful. Reading Clause 86 (5) together with Clause 93 and the interpretation in Clause 110, it becomes clear that many nursing homes will receive some funding from the NHS in providing continuing healthcare for some residents. That seems to me to be very helpful indeed because, given that there is a great deal of concern about the quality of staff in nursing homes and the training of those staff, it gives local education and training boards a clear remit to concern themselves with the staff in a lot of nursing homes in their area. I hope that it will be possible for a message to be sent to Health Education England from this debate that, if it is looking at the most vulnerable areas in terms of vulnerable people, that ought to be where the priority should be. My noble friend has teased out a very important indicator of the way in which LETBs should work in future. I hope we will see in their plans that a major effort will be devoted to the staff in those homes.
On the more general question, I noted that the Minister had been urged to be cautious by various bodies in relation to whether there should be a levy on private sector providers. It is a bit rich of the Future Forum to worry about the third sector contribution since it is the Future Forum that has tried to open the door to a competitive market in the NHS. The third sector and Sir Stephen Bubb cannot have it all ways. If he wants to have a competitive market, as he seems to, then the third sector can jolly well make a contribution alongside the NHS. They cannot have it both ways.
Earl Howe
My Lords, I hear what the noble Lord has said on this. In practice, as he knows, most education and training take place in the public sector, but we expect Health Education England and the LETBs to seek advice from a range of stakeholders. Indeed, HEE has reinforced the importance of this in the appointment criteria that it has set for LETBs which state that they should demonstrate meaningful collaborative working relationships with stakeholders, including third and independent sector providers. This will help to establish stronger links with the independent sector so that it can deliver clinical placements and perhaps also postgraduate training programmes where appropriate.
“(A1) The HRA must appoint a committee for the purpose of giving advice—
(a) to the HRA in connection with the exercise of the HRA’s function under regulation 5(1)(a) of the Health Service (Control of Patient Information) Regulations 2002 (S.I. 2002/1438) (approval for processing confidential patient information);(b) to the Secretary of State in connection with the exercise of the Secretary of State’s functions under regulations 2, 3(4) and 5 of those Regulations (processing of confidential patient information).”
Earl Howe
My Lords, I beg to move Amendment 53, and at this point it will be convenient to consider government Amendments 54 to 57 as well.
The importance of balancing a person’s right to confidentiality with the benefits of using information to improve the current and future health and care of the population cannot be underestimated. The NHS constitution sets out a number of rights and commitments in this regard.
Section 251 of the NHS Act 2006 provides the Secretary of State with a power to make regulations that modify the common law obligations of confidentiality so as to allow researchers, public health staff and other medical practitioners to access information where there is no reasonably practicable way of obtaining consent to use such information for the purposes of medical research; that is, in the interest of improving patient care or in the public interest.
The Health Service (Control of Patient Information) Regulations 2002 made under Section 251 of the NHS Act make provision for public health surveillance and risk management, work associated with cancer registration and approvals for the processing of confidential patient information for medical purposes in certain circumstances, provided that the processing has been approved by the Secretary of State.
These amendments provide continuity for the functions of advising on the approval of processing of confidential patient information for medical purposes, other than direct patient care. These functions were previously carried out by the national information governance board and its ethics and confidentiality committee. The special health authority has been directed to undertake these functions since 1 April this year, and so the provisions would ensure continuity.
I turn to the detail of this group of amendments. The amendments would require the Health Research Authority to appoint an independent committee to provide advice on applications to process confidential patient information. The committee would advise on approvals to process confidential patient information for medical research purposes and for other medical purposes. As the Bill is currently drafted, the Health Research Authority would have the power to appoint such a committee under its proposed functions in Schedule 7 to the Bill, but this would be discretionary.
This group of amendments would ensure that such a committee is established and that it is independent. This is important to ensure that the arrangements that are currently in place will continue, maintaining public confidence in the decisions made. In the interests of consistency across the system, these amendments would require a single, independent committee to advise both the Health Research Authority itself on approval for medical research purposes, and the Secretary of State on all other approvals for medical purposes.
The Health Research Authority special health authority has established an independent committee, known as the Confidentiality Advisory Group, to advise the existing Health Research Authority and the Secretary of State on approvals. The provision of transparent, expert and independent advice to support approvals for processing of confidential patient information is vital. It protects and promotes the interests of the patient while facilitating the appropriate use of confidential patient information beyond direct patient care. It ensures that each application for approval is carefully considered and that there is consistent, expert advice to inform approval decisions.
I hope noble Lords will accept that these amendments will ensure that there continues to be independent advice on applications to process confidential patient information for medical purposes. I beg to move.
Lord Hunt of Kings Heath
My Lords, I am sure that the amendments will be welcome, and that access to confidential patient information needs to be accompanied by full safeguards for the protection of individual patient privacy. However, will the noble Earl also confirm the importance of access to this information for the purposes of legitimate research? Can he also confirm that by transferring these functions to the HRA, we can look forward to a more transparent, consistent and streamlined process in the future?
Earl Howe
My Lords, as I indicated, we have always needed to strike a balance—reflected in the 2002 regulations which the noble Lord brought forward in that year—between protecting the rights of the individual and ensuring that ethical approved research can take place using confidential patient data only where appropriate. I agree with the noble Lord that we should not place any undue barriers in the way of research, but there are clear rules around this which we need to honour and protect. We will be reaching a group of amendments around the issue of transparency, and if the noble Lord will allow it, I will reserve my remarks on that until we reach that group of amendments.
“(1A) The committee appointed under sub-paragraph (A1) must consist of persons who are not members or employees of the HRA.”
Lord Warner
Lord Warner
My Lords, I suspect that the amendment has a similar purpose to Amendment 63, in the names of the noble Lords, Lord Turnberg and Lord Patel. The purpose is to ensure that in exercising its functions the HRA not only promotes the interests of research participants and those of the wider public in facilitating research but, in doing so, has to ensure that the publication of research findings takes place fairly and frankly. I tabled the amendment because there was concern in the Joint Select Committee, of which I was a member, about whether those responsible for conducting research were tempted on occasion to shield from public view the downside findings of a piece of research, for commercial or even professional, reputational reasons.
The Joint Committee’s discussions of that issue are set out in paragraphs 328 to 336 of its report to the Government. There was a lot of support in principle for greater transparency around research findings, and particularly clinical trials data, but there was some ambivalence in the discussions of witnesses in front of us, including the Minister, about prescribing this requirement in primary legislation. Tucked away in the discussion was a concern that this kind of approach would cause pharmaceutical companies to take clinical trials away from the UK. That was the implication, I think, of some of the remarks passed to the Joint Committee, which rightly in my view took a more robust view. In paragraph 335 of its report, it recommended that the Bill should be amended,
“so that promoting transparency in research and ensuring full publication of the results of research, consistently with preservation of patient confidentiality, becomes a statutory objective of the HRA”.
That is what my amendment aims to do.
My views on this issue have been shaped over time, but particularly by my experience as the Department of Health Minister responsible for the pharmaceutical industry and its regulation as well as for NHS R&D. In those roles, I did my bit to promote that industry and secure UK jobs in it, and I know the arguments about securing clinical trials. However, they have to be balanced with other considerations, when deliberate concealment of adverse research data has taken place. This is in nobody’s interests, including those of the company where it has taken place, because eventually it usually gets found out.
To illustrate my concerns, I want to detain the House a little longer with a brief account of what came up in my time as a Minister, when there was concealment. “Panorama” revealed, in 2003, what was happening with an anti-depressant called Seroxat, which was being given to about half a million people a year. Some of the people taking higher doses of the drug experienced suicidal feelings, and there were a number of cases of younger patients committing suicide. There was widespread concern among patient groups, and the MHRA had to launch a review, which included a small subset of younger patients under 18, for whom Seroxat was not licensed but for whom it was being prescribed by doctors. At that time, about 8,000 young people a year were being prescribed this drug, and the Committee on Safety of Medicines advised me that children taking this drug were more likely to self-harm or have suicidal thoughts. That finding was not then available to the regulators, but the public fuss caused by the media caused the company—and I want to mention it; it was GSK—to end up passing the information in its files to the regulators in the UK, Europe and the US. I took the view, in 2004, that there was a respectable case for prosecuting GSK, because it had failed to inform the MHRA in a timely fashion of the information on adverse reactions in juveniles.
The whole affair limped on after my time as a Minister and became the largest investigation of its kind. Over 1 million pages of evidence were scrutinised, with GSK challenging matters all the way. Matters were only concluded in March 2008 when the decision was taken not to prosecute GSK, which received a slap on the wrist. The then MHRA chief executive said in a press release:
“I remain concerned that GSK could and should have reported this information earlier than they did”.
This case—and there are others which I know of—illustrates why we should put in the Bill a clear requirement that research information is put into the public arena in a timely way when there is a downside as well as when there is an upside so that people can have a fuller picture of what is actually going on. If noble Lords want a fuller account of the Seroxat saga, they can find it in my book, A Suitable Case for Treatment, which is available in the Library. I beg to move.
Lord Turnberg
My Lords, the point of Amendment 63, which is in my name, is the need for the HRA to emphasise transparency in the reporting of clinical trials because patients and the public must have confidence that research in which they have been involved will be used in the best way to spread the message for the good of other sufferers. They have to know that results, whether negative or positive, are published. As my noble friend Lord Warner has said, it is particularly important if they are negative, for at least two reasons. First, it is to stop the unnecessary, wasteful repetition of the research by others who are unaware that it has already been done. Equally important is to prevent a bias in reports towards research that shows only that a new drug works when other, unpublished, research shows that it does not. This is particularly important when we consider what is called meta-analysis, whereby an analysis is made of all relevant published reports, brought together to provide a large database on whether a drug works or does not. If only the positive results are reported, we have a biased result at the end, which could result in all sorts of problems.
Open access to research data provides researchers with a much better picture of their field than if research results are held too closely to the chest, perhaps by researchers jealous of their findings or by drug companies fearful of rivals gaining an advantage. It is heartening to know that GSK seems to have learnt the lesson: it is the first pharmaceutical company to lead the way in transparency. Members of the Association of Medical Research Charities make it a condition of their grants that results are published. We are pushing on an open door and we just need the HRA to have some capacity to ensure transparency in NHS research.
Baroness Wheeler
My Lords, I support Amendments 58 and 63. It is right for my noble friends Lord Warner and Lord Turnberg and the noble Lord, Lord Patel, to press the Government on this important issue. As we have heard, the Joint Committee proposed including the promotion of transparency in research and ensuring full publication of the results of research—consistent with the preservation of patient confidentiality—in the Bill and we strongly support this.
This is our first opportunity to welcome the establishment of the Health Research Authority as a statutory body and we do so wholeheartedly. We recognise the vital importance of research and innovation to the NHS, the very real progress that is being made in these areas and the scale and pace of change in medical science. The HRA’s objectives not only promote and protect the interests of patients and the public in health and social care research but ensure that it is ethical and safe research, which inspires the public confidence that my noble friend Lord Turnberg spoke about.
Alongside other bodies, the HRA has a key role in promoting transparency, and we acknowledge that its recent guidance on how it will undertake this role sets out important measures that will go some way towards underlining that it takes its duty seriously. These include: gaining approval from research ethics committees before clinical trials can go ahead; a new timescale for registrations; the commitment to work with research funders and sponsors to set the standards for the publication and dissemination of research outcomes; taking steps to facilitate further analysis of detailed data; and plans to look at how patient consent forms can be amended to provide early consent and understanding on how data will be used, as well as how the HRA will be informed of the outcome of study findings.
There is no doubt that the HRA is committed to working with others to overcome barriers to transparency and create a culture of openness. The amendment and Amendment 63, which provide for the publication of research findings “fairly and frankly” and transparency in the reporting of clinical trials, would enshrine the HRA’s commitment in statute, and ensure that clinical research benefits patients and that the findings are available for others to learn and benefit from. As we have heard from my noble friend Lord Turnberg, the advice of the Association of Medical Research Charities to its members to ensure that there is a requirement to publish in the terms and conditions of all their research awards has played an important role in providing greater transparency and would be reinforced by greater HRA authority in this matter.
Finally, like other noble Lords, I received a valuable briefing from the National Advisory Council to the Thalidomide Trust on the need for transparency and a change in the law for the disclosure of clinical and healthy volunteer trial data in relation to the drugs available on the market. The briefing states:
“Adverse effects caused by drugs that are designed to lead to a health improvement can be difficult to prove, and easy for the pharmaceutical companies to dismiss ... At the core of the problem is the fact that the safety assessments of a drug, undertaken in clinical trials done prior to the drug’s launch, remain hidden once the drug is on the market. A patient experiencing adverse effects therefore has no access to data that could be used to prove their claim … the onus is on patients to prove it was a drug that harmed them rather than the company that already holds that evidence”.
The Thalidomide Trust proposes changes to the informed consent form to allow sharing of anonymised data and making data from clinical trials available and accessible to the public once a drug has been released on the market. The trust acknowledges that this is a difficult issue. Have the Government had any discussions with the trust on this matter? I should be grateful if the noble Earl would comment on this, either today or in a written response.
Lord Phillips of Sudbury
My Lords, perhaps the noble Earl will tolerate a short intervention. I was for 30 years a trustee of the charity the Public Interest Research Centre. I think I am correct in saying that in the 1970s and 1980s it was the only independent charity carrying out extensive research on the matters under discussion here. I agree with every word said by the noble Lords, Lord Warner and Lord Turnberg, and the noble Baroness, Lady Wheeler. There is, to some extent, a disparity of arms between the huge pharmaceutical companies and the regulatory authorities. Frankly, I see no harm and some potential good in the amendments to try to rectify the balance of power and to avoid a repetition of the example given by the noble Lord, Lord Warner, which is extremely sobering but by no means unique. A number of instances that we confronted in the 1970s and 1980s mirrored that example, if not on quite the same scale.
Lord Campbell-Savours
My Lords, I want briefly to intervene with a thought to which the Minister may have a response. When you have medicines prescribed under the National Health Service—indeed, when you buy medicines—there is a leaflet inside the package setting out the need for the product and the circumstances in which it can be taken. However, there is also a section that deals with risk. I have often wondered whether that section on risk assessments, which lays down varying levels of risk, dependent on the incidence of conditions that might arise under use of the medicine, is based on the original clinical trials carried out by the manufacturer. If it is, it may well be that there is an argument for more frank information to be made available. If the element of risk is linked to the original research, it would obviously be very interesting to the wider public. I wonder whether the Minister might be able to help us there. Is there a connection?
Lord Winston
My Lords, I entered the Chamber expecting to speak not to this amendment but, as the Minister may recognise, on the issue of human fertilisation. However, I am feeling drawn into the argument. I find it difficult to agree with my noble friends on this side of the House. The wording of the amendment would not really fulfil the laudable purpose set out by my noble friends. There are many examples where this information would be very important. The case of Seroxat is a fine example of where there was a real need to have better regulation of the negative results of a drug trial.
There are many examples where the negative effects of a drug trial may not be of relevance in the same sort of way. In the area of reproductive medicine, for example, clomiphene citrate was first given as a contraceptive. The surprise was that people got pregnant on it, so the drug was shelved as a contraceptive. A great deal later, however, a drug company suddenly recognised that it had something that might stimulate pregnancy in women who had been infertile. The problem is that a drug company sponsors, pays for and organises research, so to some extent it has a commercial value in that research. We have to strike a very careful balance between when there is an important commercial angle which requires proper legislation and, equally, when there is a chance for drug companies to do a good job—as they did eventually with clomiphene citrate when it was launched as one of the most successful drugs in my area of medicine.
With all due respect to my noble friend Lord Warner, that makes the wording of this amendment difficult. I do not think that frank and fair reporting of a drug trial would be sufficient to meet the needs of what he is arguing in this case.
Lord Warner
Perhaps I may respond to my noble friend. I was arguing the case on behalf of the Joint Committee as much as anything else. The committee heard a lot of evidence on this, and across the parties, and across the Commons and the Lords, the conclusions were drawn up in its report to the Government.
I say to my noble friend that most of these clinical trials look at a product which is being tried for a particular purpose. If that product happens to fulfil some other purpose, a different set of issues arises. Seroxat was actually trialled as an anti-depressant, but it failed that test in so far as it was applied in a dangerous way to juveniles. The information about it failing that test was concealed from the public and the regulator. My wording might not be perfect but I am not arguing for my wording. I am trying to get the Government to engage with the issue so that they can find a wording that meets my concerns—and, I suspect, those of my noble friend Lord Turnberg—in the way that the Joint Committee proposed, to engage the HRA in ensuring proper transparency when there are downsides to research. That is in no way stopping a pharmaceutical company from using a drug or trialling a drug for a different set of purposes from that for which it was originally constructed.
Earl Howe
My Lords, I say straight away that I sympathise with the intention behind the noble Lords’ amendments. These two amendments seek to make an explicit statement about the Health Research Authority’s role in encouraging transparency in health and social care research findings and clinical trial results.
We are all keenly aware of how topical the issue of transparency in health research is. The House of Commons Science and Technology Select Committee is currently undertaking an inquiry into clinical trials. Last week I gave evidence to that committee along with my right honourable friend the Minister of State for Universities and Science. I look forward with interest to the committee’s report. As the noble Lord, Lord Turnberg, and the noble Baroness, Lady Wheeler, rightly pointed out, maintaining trust in research is crucial to its success, and the way in which we respond to the mounting calls for greater transparency has consequences for how the integrity of research conducted in this country is perceived not just on a national level but on the international stage.
However, in reaching answers to these pressing questions, we must be careful not to create perverse incentives that simply result in people choosing not to carry out research in the UK and invest elsewhere. Promoting transparency in research is a core part of facilitating the conduct of safe, ethical research. People enrol in trials because they want to contribute to medical knowledge and advances. In considering the ethics of research proposals, ethics committees have to be assured that any anticipated risks, burdens or intrusions will be minimised for the people taking part in research and will be justified by the expected benefits for participants, or for science and society. Knowing what research has already been undertaken or is under way and the results of that research is therefore essential in order to minimise risks and burdens by not repeating research that has already been conducted.
Here, I come to the answer to the question asked by the noble Lord, Lord Hunt, in debate on the previous group of amendments. Promoting transparency in research is inextricably part of facilitating the conduct of safe and ethical research, which is the Health Research Authority’s main objective in Clause 97(2)(b). As Dr Wisely, the Health Research Authority chief executive, said in evidence to the Joint Committee which scrutinised the draft Bill, promoting transparency is absolutely fundamental to protecting patients and the public in health research. As a special health authority, the Health Research Authority is already doing a number of things with regard to transparency in research. First, research ethics committees already consider an applicant’s proposals for the registration and publication of research, for dissemination of its findings, including to those who took part, and for making available any data or tissue collected as part of the research.
Secondly, since April 2013, the Health Research Authority has been undertaking checks of research ethics committee applicants’ end-of-study reports to see whether they registered and published research as they declared they would to the ethics committee. Thirdly, as noble Lords may be aware, the Health Research Authority recently published a position statement setting out its plans for promoting transparency in research. This statement has received widespread support from stakeholders, including the AllTrials campaign, the James Lind initiative, the Association of the British Pharmaceutical Industry and INVOLVE.
I turn specifically to Amendment 63, which would specify that one way in which the Health Research Authority, the bodies listed in Clause 98(1)—for example, the Human Tissue Authority—and the devolved Administrations would be able to fulfil their respective duties to co-operate would be through encouraging transparency in the reporting of clinical trials results. The intention behind these duties of co-operation is to encourage co-ordination and standardisation of practice so as to streamline regulation and remove duplication. The aim is that through these duties the people and bodies listed will work collaboratively with the Health Research Authority to create a unified approval process for research applications and to put in place consistent and proportionate standards for compliance and inspection. Streamlining the approval process for research will make initiating research faster for researchers, funders and sponsors, and ultimately enable people who use health and care services to benefit from research more quickly.
Noble Lords will be aware that clinical trials in this country are governed by EU law. The EU Commission’s current proposals for a new clinical trials regulation look likely to enshrine the principle of transparency in the rules governing clinical trials at every stage, including, as the current proposals set out, mandatory publication of clinical trials summaries, not only in their technical form but in a form that ordinary members of the public will understand. We believe that that is the right direction of travel.
Given the focus of these duties on streamlining the regulatory system that the HRA has, I hope that noble Lords understand why it is not necessary to make encouraging transparency in reporting clinical trials a fundamental part of co-ordinating and standardising the regulatory practices of the persons and bodies listed and the devolved authorities. I hope that noble Lords are reassured by the fact that promoting transparency is a core part of the Health Research Authority’s main objective in facilitating safe and ethical research.
The noble Baroness, Lady Wheeler, asked about discussions with the national advisory council on health improvement drugs. Perhaps I may write to her on that topic. I hope she will forgive me for not answering now.
The noble Lord, Lord Campbell-Savours, asked about the patient information leaflet that is now mandatory within packs of medicines. The risks that are set out typically on the patient information leaflets can be derived in several ways: first, from the original clinical trials data—the noble Lord is quite right about that—but also from any data that may have subsequently arisen from the reporting system that exists. Pharmacovigilance legislation, which came into force last year, now enables the Medicines and Health products Regulatory Authority to require pharmaceutical manufacturers to report safety and efficacy data where either concerns arise or where the evidence for a medicine was perhaps less than it might have been in the first instance. So transparency can be promoted in that sense as well. The noble Lord may already be aware that the MHRA regards its pharmacovigilance responsibilities extremely seriously.
Lord Campbell-Savours
Is the Minister therefore saying that, in the event that adverse effects arose during the course of the clinical trial, there is now a requirement that the risk factors, as set out in the leaflet to which he referred, will reflect those adverse effects?
Earl Howe
There is a requirement that the patient information leaflet should contain warnings about the possible adverse side-effects of the medicine. The noble Lord is quite right that data may well have arisen from the clinical trials, but also from the yellow card reporting system, as it is called, and any other data that emerge from across the world. The point is to ensure that the patient is properly informed. No medicine is risk-free. All medicines carry some kind of risk of a side-effect and one has to recognise that that is part and parcel of the benefit that we get from medicines. The benefit-risk equation has of course to be positive, but these things need to be kept under scrutiny.
Lord Campbell-Savours
The noble Earl said that it “may well reflect”, which is different from “shall reflect”.
Earl Howe
The MHRA, in granting a marketing authorisation to any medicine will have access to all the clinical trial data that the company has at its disposal. That is mandatory. Therefore, if the MHRA decides to issue a licence for a medicine, it will require that the full range of adverse effects is reflected in the patient information leaflet. The answer to the noble Lord’s question is yes, but he will not necessarily see a whole lot of technical data in the patient information leaflet. It will be translated into language that the ordinary patient can understand.
I believe that the Bill as drafted already gives the HRA a clear objective which requires it to take an active role in promoting transparency in research. I hope that I have given enough reassurance on these issues to all noble Lords to enable the proposers of Amendments 58 and 63 not to press them.
Lord Warner
My Lords, that was an interesting and rather complicated set of assurances from the noble Earl. I would like to consider it carefully and talk to my noble friend Lord Turnberg and the noble Lord, Lord Patel, before considering whether to go any further.
As an observation, if the EU directives are going in the direction of this amendment and there is a lot of concern to make sure that patients are left in no doubt that a full, frank publication of reports including the adverse consequences of that research is a prime consideration, I still cannot see why we cannot put something—whether my wording or something equivalent to my noble friend's wording—on the face of the Bill. I would like to think about that a little further and I certainly do not promise not to bring this issue back after talking to my noble friends. In the mean time, I beg leave to withdraw the amendment.