Counter-Terrorism and Border Security Bill

Earl Howe Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I understand that this clause is one of several in the Bill intended to deal with the speedy march of technology. The previous legislation particularly had in mind the downloading of material. There is now no need to download material at all. This is intended to deal with the practice of streaming, which not only has become ubiquitous but can now be done at lightning speed. My own internet system was uprated a couple of days ago and I am almost blinded by the speed at which, in the morning, I can get on my telephone whatever I wish to view on my exercise bike. That gives more detail than is probably welcome in this House, but it happens in moments. It is important to tackle the issue of streaming by updating the legislation.

With deference to the Opposition Front Bench, the phrase “pattern of behaviour” is breathtakingly vague and would never pass muster in any court of law as something which could be judged with any certainty. I urge the Minister to reject that phrase. I cite an example which I have seen of legitimate use being made of the kind of material the Committee is looking at. I do not want to embarrass the university concerned by naming it, but I took part in a seminar in the very good law faculty of a very good university in which second-year undergraduates had been asked to look at material online in order to assess the effect that they thought it would have on people who were looking at it out of curiosity, rather than as part of their study. The professor who was supervising this had, of course, informed the local counterterrorism unit that it was going to be done, because he wished to avoid difficulty. That unit welcomed what he was doing, because it was interested in the reaction of 18, 19 and 20 year-olds to material that is usually judged by people with PhDs, police officers or the security service. It gave a new viewpoint on this material and I was privileged to take part. However, it is an absurd notion that something like that would be prosecuted.

This clause extends the existing reasonable excuse defence under Section 58(3) to the new type of material which is available and which the Committee is considering now. As a result of the decision of your Lordships’ House in R v J and R v G in 2009, it has been made absolutely clear that,

“the defence of reasonable excuse must be an objectively verifiable reasonable excuse to be determined by the jury in the light of the particular facts and circumstances”,

of the case. Also, where the evidential burden is raised by the defence—in other words, the defendant says, “I have a reasonable excuse”—the defendant does not have to prove it. The prosecution then has to make the jury sure that the excuse that the defendant has offered is not reasonable. That in itself is a sufficient existing protection, without these amendments.

Further, and with great respect to as experienced a police officer as the noble Lord, Lord Paddick, I appeal to noble Lords who are looking for theoretical cases in which an arrest or prosecution may take place. The police do occasionally exercise their common sense and not arrest someone where it would be patently absurd to do so. Most of the time they do just that. A two-code test has just been reaffirmed in the publication—by the outgoing DPP on the last day of her period of service—of a new Code for Crown Prosecutors. It emphasises the dual-code test which requires not only that there should be evidence that a jury might accept but also that it is in the public interest to prosecute. The discretion of prosecutors is an important part of our unwritten constitution that is often overlooked but should not be, as is the protection offered by juries, which are plainly not going to convict someone like my friend the university professor who engaged his students in the very valuable exercise that I described. This provision is entirely proportionate and simply updates a piece of law that sometimes causes difficulties because we do not always keep it up to date.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, these amendments seek, in various ways, to raise the threshold for the offence of viewing material over the internet provided for in new Section 58(1)(c) of the Terrorism Act 2000. Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to restore the concept of a pattern of behaviour which was, as he pointed out, inherent in the so-called three clicks version of the offence as originally introduced in the House of Commons. Amendments 12 and 13, in the name of the noble Baroness, Lady Hamwee, would introduce a requirement to prove not just that the material being accessed is likely to be useful to a terrorist but that it was accessed by the individual with the intention of using it for terrorist purposes.

In responding to Amendment 11, it may assist the Committee if I explain that the intention behind the original three clicks provision was to ensure proportionality, and to provide a safeguard for those who might inadvertently access terrorist material by ensuring that there was a pattern of behaviour in accessing such material. However, we recognised the difficulties underlying that approach, and the uncertainty around how it would be implemented. Having reflected on the concerns that were raised about the three clicks provision, we believe that the reasonable excuse defence is the better way of proceeding. Introducing a pattern of behaviour test would recreate many of the same issues we faced with the three clicks provision. I agree with what the noble Lord, Lord Carlile, has just said on that issue. For example, it would beg questions such as how many viewings were required to constitute a pattern of behaviour and over what period such viewings would need to take place. Indeed, a pattern of behaviour test arguably introduces a greater degree of legal uncertainty than the three clicks test and, for that reason, I respectfully suggest that it is best avoided.

Amendments 12 and 13 would very significantly raise the threshold for the offence, and would alter its fundamental purpose. Section 58 of the Terrorism Act 2000, which Clause 3 amends, is a preparatory offence, rather than one aimed at the actual planning or commission of terrorist acts. It has a lower maximum sentence than other offences covering more developed terrorist activity, which can attract up to life imprisonment. I suggest to the noble Baroness that, in that sense, it is not comparable to the offence in Clause 2. The Section 58 offence, as amended by the Bill, is formulated so as to catch people who make a record of, or who view online, information likely to be useful to a terrorist, without requiring them to have actually used that information for a terrorist purpose or to intend to do so. This is in itself harmful behaviour, and such people can pose a very real threat to public safety. I do not agree with the example given by the noble Lord, Lord Paddick, of the changing of the guard. The noble Lord, Lord Carlile, hit the nail on the head again when he spoke about what is reasonable for the authorities to suppose in all the circumstances.

If there is evidence that the individual is preparing or committing an act of terrorism, or is assisting another person to do so, then they would be likely to meet the threshold for a more serious offence, such as Section 5 of the Terrorism Act 2006, which covers the preparation of terrorist acts, and for which the maximum sentence is life imprisonment. As such, a requirement to prove terrorist intent would effectively render unusable the new limb of the Section 58 offence that Clause 3 will insert. This is because the offence would be moved into territory that is already well covered by existing offences and could not be used for its intended purpose so that the police and courts would remain powerless to act against individuals accessing very serious terrorist material online.

The noble Baroness, Lady Hamwee, has suggested that her amendments are intended in part to address her concern that the offence will inappropriately criminalise those who seek out terrorist information through foolishness, inquisitiveness or curiosity, without intending to do harm. I have sympathy for that concern. The Government have been clear that this offence is aimed at those of a terrorist mindset and we do not wish to cast its net unnecessarily widely. However, I cannot agree with the noble Baroness’s suggestion that this is the best way to address the concern.

For the reasons that I have set out, these amendments would fundamentally undermine the purpose of the offence, and would go much further than I believe is intended in narrowing its application. We consider that the existing “reasonable excuse” approach is a better and more appropriate means of doing so, together with the normal CPS tests of whether there is evidence that would provide a reasonable prospect of conviction, and whether prosecution would be in the public interest, as the noble Lord, Lord Carlile, said. This is particularly so, because the question of whether it is legitimate for someone to intentionally seek out serious and potentially very harmful terrorist material, through foolishness or inquisitiveness, will be very fact-specific and particularly prone to grey areas. It needs to be considered on the basis of all the circumstances and all the evidence in any particular case.

While clearly there will be cases of this type, where prosecution will not be appropriate, it will certainly not be responsible to provide a blanket exemption for any person to access any quantity of terrorist information and be able to rely on such an exemption, whatever the potential harm associated with their activities. I hope, having heard my explanation, the noble Lord, Lord Rosser, will be content to withdraw his amendment, and that the noble Baroness, when it comes to her turn, will be content not to press hers.

[Lord Paddick]

I would like to explain my concerns to the Minister. In order for a police officer to make an arrest, all the police officer will need is a reasonable cause to suspect that the person is committing the offence. Therefore, the “reasonable excuse” defence provided in the Bill does not come into play. I accept that no Crown prosecutor would prosecute something that is clearly an innocent mistake, for example by someone clicking on to information. But my concern is that there is nothing to stop a police officer arresting a person, and the person being detained, until there is detailed consideration about whether this is a grey area, or whether it is reasonable or not.

Can the Minister give me any reassurance, other than what the noble Lord, Lord Carlile, has said about most police officers being reasonable? The particular offence that I am thinking of, which is no longer on the statute book—Section 4 of the Vagrancy Act 1824 —of being a suspected person,

“loitering with intent to commit an indictable offence”,

was routinely abused by the police in order to arrest people who were innocently going about their business. I am concerned that offences like this, which are very widely drawn and rely on a “reasonable excuse” defence, do not protect the innocent person from arrest and detention by the police.

[Earl Howe]

My Lords, I bring the noble Lord back to the issue that I flagged—that a judgment needs to be made in all the circumstances of the particular case. I turn the question back to the noble Lord. We are dealing with the viewing of material that must have a clear link to terrorism, and must be objectively capable of being useful to a person committing or preparing an act of terrorism.

One has also to bear in mind what the existing offence consists of. How does the noble Lord think the proposed new offence differs in its substance or its degree of seriousness from the offence already established in Section 58 of the Terrorism Act 2000? How does accessing this kind of harmful material by way of a streamed video differ from accessing it by way of a download or a book? Have we seen examples over the last 18 years of people being wrongfully hauled to the police station as a result of innocent activity? I am not aware that we have.

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[Lord Paddick]

My Lords, I support the amendments in this group, although I have some reservations about all of them now that the noble and learned Lord, Lord Judge, has spoken. However, I have concerns about Amendment 14, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, for the reasons I have expressed in previous groups about having a blanket exemption for journalism and academic research. A terrorist could access information with the intention of committing a terrorist act but could claim that it was for the purposes of journalism or academic research. Surely the acid test should be the intention of that person, not the content of the material.

I have added my name to Amendment 15, in the names of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, although I accept what was said by the noble and learned Lord, Lord Judge, with his wisdom and legal background. Obviously the intention of the amendments is to suggest that the law is not clear here about what would amount to a reasonable excuse. Perhaps the mechanism suggested in the amendments is not the right one, and, as the noble and learned Lord, Lord Judge, has alluded to, maybe the approach outlined in amendments that we will consider shortly is the right one. However, there is concern about what would amount to a reasonable excuse under this clause.

[Earl Howe]

My Lords, there have been calls both in your Lordships’ House and in the House of Commons to place on the face of the Bill a definition of legitimate activity that would not be caught by the Section 58 offence as amended or to specify categories of reasonable excuse. The Government’s position on this issue is well rehearsed, including in our response to the Joint Committee on Human Rights. Noble Lords opposite have clearly been following this debate closely, because Amendment 15 proposes a slightly different approach, and Amendment 16, in the name of the noble Lord, Lord Rosser, follows a similar path.

Rather than seek to write exemptions or examples of reasonable excuses into the Bill, as Amendment 14 seeks to do, Amendments 15 and 16 instead seek to place a requirement on the Government to publish guidance on the same matters. I commend noble Lords for their constructive approach in seeking alternative solutions, and I hope that they will find my response to their suggestions similarly constructive, even if I am not able to support these amendments.

The Government’s starting point on this issue is that Section 58 of the Terrorism Act 2000 already contains a well-established safeguard, in the form of a reasonable excuse defence, for those with a legitimate reason to access terrorist material. As a result of Section 118 of the 2000 Act, if a person raises this defence, the court must assume that it is satisfied unless the prosecution can disprove it beyond reasonable doubt. We will debate the operation of Section 118 when we come to Amendment 18 in a later group.

Where a person has a reasonable excuse, a prosecution should not in fact commence, because the case would not pass the Crown Prosecution Service threshold tests of being in the public interest and of there being a realistic prospect of conviction. This safeguard has operated successfully in relation to Section 58 since that offence was first created in 2000, and it reflects the approach taken across the criminal law, where many other offences with a similar defence also do not list specific categories of reasonable excuse. As such, it is well understood by the police, the CPS and the courts. It will continue to apply equally to the offence as amended by Clause 3, and it will not be narrowed or reduced in any way.

This is an important safeguard, and I understand the intention of the noble Lord and the noble Baroness in seeking to put its effect even further beyond doubt, whether through the amendment of Clause 3 or through guidance to be published under it. However, it is my view that, whichever route is taken, it is simply not necessary. Furthermore, such an approach could in fact have the unintended and unhelpful consequence of unsettling the current position, and of reducing rather than increasing clarity. I hope the Committee will indulge me while I explain why this could be the case.

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[Baroness Jones of Moulsecoomb]

I am sorry, but I am driven to say to the Minister that, as an ex-archaeologist, we have a saying: absence of evidence is not evidence of absence. Just because you do not have the evidence, that does not mean it has not happened. Does that help the Minister?

[Earl Howe]

I expect it does, but I shall need to get my mind around the point.

Of course, the statement made by the noble Baroness has to be right, but I come back to the fact that, in practice, we have not seen any miscarriages of justice against journalists or academics, or indeed any arrests. It is therefore incumbent upon us to ask why that is so, given the certainty with which some have predicted that exactly these consequences will flow from Clause 3. Could it be because the safeguards I have outlined were operating successfully? My suggestion is that this is the case. Furthermore, as the very same safeguards will continue to apply to Section 58 as amended by Clause 3, and as Clause 3 will neither narrow them in any way nor broaden the types of material caught by Section 58, I suggest that we can take considerable comfort from this.

As well as questioning the practical necessity for these amendments, I also have some concerns about the form of Amendments 15 and 16, which require the Secretary of State to issue guidance. To place such a requirement on the Home Secretary would be novel and arguably inappropriate—the noble and learned Lord, Lord Judge, made the point extremely well. While the Home Office has issued guidance on matters such as the operation of police powers, it is not normal to do so on how to apply investigative and prosecutorial discretion in the context of a specific offence and where there are criminal consequences for individuals affected. If such guidance is to be issued, I therefore question whether this is properly a matter for the Home Secretary. This concern could, of course, be remedied by placing the duty on someone else, such as the Director of Public Prosecutions. However, as I have sought to explain, we remain to be convinced that an amendment to Section 58 of this kind is needed.

Finally, it is worth noting that Section 58 falls within the statutory remit of the Independent Reviewer of Terrorism Legislation, and this will provide a further important safeguard for its operation as amended by the Bill. I am aware that the former independent reviewer, Max Hill QC, does not agree with every aspect of the Government’s approach to Clause 3. He is, of course, an extremely eminent person whose views should be taken into account. But I would point out that successive independent reviewers have never raised a concern that Section 58 in its current form is having a chilling effect, or is otherwise not being used appropriately, despite its application, as I have said, to the bulk of journalistic and academic research into Section 58 material for much of the period it has been in force.

I hope that I have been able clearly to set out the Government’s position on these matters, and to persuade the noble Lord opposite to withdraw his well-intentioned but, in my view, unnecessary amendment.

[Baroness Hamwee]

My Lords, before the noble Lord responds, I was wondering, as the Minister was speaking, why the Government decided to include new subsection (3A). It applies only to the subsection (3) but, if it is required for that subsection, was there something in the operation of the earlier provisions of Section 58 that has prompted this? New subsection (3A) provides that:

“The cases in which a person has a reasonable excuse ... include (but are not limited to) those in which … the person did not know, and had no reason to believe, that the document or record in question contained … information … likely to be useful to a person committing or preparing an act of terrorism.”


The Minister may not be able to respond to that now, but it goes to the heart of the debate.

[Earl Howe]

My Lords, I recognise the noble Baroness’s point. I understand that that provision went into the Bill when the three clicks provision came out. It was intended to provide a measure of reassurance in substitution for the three clicks idea that someone who acted in complete ignorance would not be caught. Frankly, one can argue it both ways—to leave it in the Bill or to take it out—but, on balance, we felt that it was right to put it in the Bill for that added measure of reassurance.

[Baroness Hamwee]

That is an interesting response and I will have to think about it. I share the concern of the noble and learned Lord, Lord Judge, not to involve the Executive where it should not tread. There could be parliamentary scrutiny. We have become possibly too reliant on codes of this and that to flesh out what lies underneath legislation—it is not something I much like, and I have obviously been sucked into it. So we could have parliamentary scrutiny if we had a statutory instrument, but we could also list in the Bill the sorts of examples we have talked about, in the way that the amendment from the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, seeks to do in Clause 4. I think that that is a particularly good way of going about it.

I do not suppose the Minister can answer this, but his reference to the Independent Reviewer of Terrorism Legislation prompts me to ask about progress in appointing the new reviewer. He is indicating that he cannot answer, and I did not expect him to, but it is a point that was worth making at some stage in this debate.

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[Earl Howe]

My Lords, Clause 4 provides a new offence of entering or remaining in a designated area overseas. The offence includes a reasonable excuse defence, but these amendments seek to augment that defence, either by providing for an exhaustive list of reasonable excuses or by introducing a prior authorisation regime. I make no apology for the fact that the new offence strengthens the powers available to the police and prosecutors to tackle the phenomenon of foreign terrorist fighters: it will underline and support the Government’s travel advice, deter would-be foreign fighters and provide an additional means of prosecuting those who none the less do travel.

In framing the offence, we have sought to achieve clarity and workability alongside proportionality. As the prosecution will simply be for breach of a ban on travel to an area associated with a high level of terrorist risk, we believe we have achieved the right balance. The new measure will alleviate some of the difficulties we have seen in obtaining admissible evidence from conflict zones in unstable or failed states, and in pursuing prosecutions for terrorist offences against returning foreign fighters. The Government of course recognise that in exceptional cases, some individuals will have a legitimate reason—such as journalism, to deliver humanitarian aid or compassionate family circumstances—to enter a designated area. There is no argument about that.

This is, therefore, not a blanket ban on travel, and the offence of entering a designated area is not one of strict liability. In keeping with the long-standing approach to Section 58 of the Terrorism Act 2000, which Clause 3 of this Bill amends, and many other offences in UK criminal law where similar issues arise, the offence includes a reasonable excuse defence. I will not detain the Committee with the full details of how the burden of proof mechanism will operate and why we think it is the right approach, as we will come on to that when we debate Amendment 18 in the next group. However, I will say that we have considered these issues very carefully and listened to the points that have been made in this House and elsewhere. We want to approach this in a constructive way. We consider that our approach strikes the right balance between, on the one hand, ensuring an effective and workable power, both legally and operationally, and on the other ensuring that the power is proportionate and provides adequate safeguards.

As the noble Baroness, Lady Hamwee, explained, her Amendments 21 and 22 would introduce a different approach to dealing with cases in which a person has a legitimate reason to enter a designated area: they would introduce a power for the Secretary of State to preauthorise individuals to enter a designated area and to make regulations setting out the process and criteria for this. I am grateful to the noble Baroness for the constructive approach she has taken, and I understand her wish to ensure that individuals are able to travel for legitimate reasons without facing prosecution. As she explained, her proposal would borrow from the Danish model, which includes a similar preauthorisation scheme. That is a model we considered, and indeed discussed with the Danish Government. We also discussed with the Australian Government the approach taken in their legislation, which adopts a model which includes an exhaustive list of exemptions and a power to add to that list. The amendments of the noble Lord, Lord Anderson, seek to replicate this model.

As I said, following this consideration we concluded that the reasonable excuse approach is the most appropriate one. It already exists elsewhere in this Bill and in the Terrorism Act 2000, into which the designated area offence will be inserted, as well as in a broad range of other offences in UK criminal law. It is well understood and is routinely applied by the police, the CPS and the courts, there is clear case law on its application and it provides a proven, powerful and effective safeguard against inappropriate arrests, prosecutions and convictions. In deciding against a pre-authorisation scheme, we had in mind that any designated area is likely to be one to which the Government are recommending against travelling for any purpose. I hope the noble Baroness will agree, on reflection, that it would be inconsistent with that advice, and indeed would undermine it, if the Government none the less issued permission to travel to the area on application.

Apart from sending out those sorts of mixed messages, a system of that kind would be cumbersome and difficult to operate in a sufficiently effective and agile way to provide adequate assurance to the police and security services about a traveller’s intentions, and to provide the traveller with a sufficiently prompt and clear authorisation. Of course, it could be open to abuse, whether by those who would seek to overload and undermine the system with vexatious applications, or perhaps more particularly by those who would seek authorisation to travel under cover of legitimate purposes, but whose intentions are to engage in terrorism once they enter the area.

The Government recognise that this is a difficult issue, and we have been careful to ensure that this power does not infringe disproportionately on individuals’ rights, or on the valuable humanitarian work done by charities and NGOs. However, we are also deeply mindful of the strategic threat to public safety that can be and has been posed by individuals who travel overseas to join terrorist organisations and participate in conflicts, particularly those who have joined the Syrian conflict. It is right that we provide the police and the courts with the powers they need properly to respond to that threat, and to keep the public safe. Our firm view is that the reasonable excuse approach taken in Clause 4 is the right one. However, I have heard, loud and clear, the calls for greater certainty for humanitarian workers and others.

That said, I am concerned that the approach proposed by the noble Lords, Lord Anderson and Lord Rosser, is too rigid. The legal issue it raises is the age-old problem of the list included in statute. While I recognise that the amendment is modelled on the Australian legislation, I am instinctively uneasy about legislating for an exhaustive list of reasonable excuses—albeit one that could be amended by means of regulations. It is clear from the case law that the question of whether a particular excuse is reasonable will be highly dependent on the facts and circumstances of each individual case. The statute could offer guidance in the form of an indicative list, but it really cannot shut out what might be a legitimate reasonable excuse through an exhaustive list. The regulation-making power in the amendment does not adequately remedy this difficulty, I fear. I am therefore more receptive to the approach proposed by the noble Baroness, Lady Jones, and my noble friend Lord Attlee in their Amendments 19 and 20.

I will of course take away the concerns raised by the noble Lord, Lord Carlile, about the Golan Heights and similar areas in Israel. However, I hope he will forgive me if I do not give him a categorical assurance regarding his particular examples. What I can say is that decisions to designate areas will be based on a careful assessment of all relevant information. This will include sensitive intelligence as well as open source information, and a careful assessment of necessity and proportionality. I agree with him that it seems very unlikely that the UK would seek to designate any area within a well governed liberal democracy such as Israel. That is probably as far as I can or ought to go at the Dispatch Box.

To sum up, I recognise the strength of feeling on this issue in the Committee. I can therefore undertake, together with my Home Office colleagues, to reflect carefully on the debate on these amendments in advance of Report, and with that assurance I ask the noble Lord, Lord Anderson, to withdraw his amendment.

Immigration: International Students

Earl Howe Excerpts

Monday 26th March 2018 Lords Chamber

[Noble Lords]

Hannay!

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, it is an invidious choice between the noble Lords, Lord Hannay and Lord Green, but I think the noble Lord, Lord Green, was attempting to rise to his feet earlier.

[Lord Green of Deddington]

I am grateful to the noble Earl, and I hope that I may also be nothing if not consistent. Is the noble Baroness aware that the number of foreign nationals in the UK who arrive to study is, according to the Labour Force Survey, 1 million? In that case, is it not surely essential that they should be included in the migration statistics, as the ONS intends and as the Royal Statistical Society has recommended? It is a question not of who is allowed in but of counting them as they come and go.

Refugees: Teaching of English

Earl Howe Excerpts

Tuesday 6th February 2018 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords—

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, it is the turn of the Cross Benches.

[Lord Hogan-Howe]

My Lords, in 2016, Dame Louise Casey conducted a review on extremism. She stressed the importance of integration, which reduced the chances of extremism, and of course speaking English increases the chances of integration. The £10 million that the Minister referred to has certainly helped to assist resettled Syrians, but could that same commitment to provide eight hours of English training be provided to all other refugees as well? That might enhance the strategy mentioned by the Opposition.

EU: Healthcare

Earl Howe Excerpts

Wednesday 11th January 2012 Lords Chamber

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

My Lords, I begin by thanking the noble Lord, Lord Kakkar, for calling this debate and, indeed, all noble Lords who have spoken and contributed so eloquently and, I may say, succinctly. The Government are determined that the NHS achieves results for patients that are consistently among the best in the world. One way to do that is to compare our experience with those of other European countries. There are many areas where we can learn from each other—for example, where we have worked closely with counterparts in Spain, which has the highest organ donation rate anywhere in the world, to improve donation rates here.

In assessing the impact of the EU on healthcare in the UK, we should start by recognising that the Treaty on the Functioning of the European Union respects the right of member states to organise and manage their own health services. Much of the activity of the European Union on health is therefore designed to complement national policies. However, various areas of European legislation, as noble Lords have pointed out, can have an impact on healthcare in the UK. One such area is social policy. Every year, many millions of UK citizens travel within the EU knowing that, should the need arise, they can access immediately necessary healthcare for free, or at a substantially reduced cost, by using their European health insurance card as a temporary visitor. Many UK state pensioners prefer to live in the warmer climate of countries like Spain or France, and do so knowing that their healthcare costs are covered. Of course, if they were to live here in the UK, they would be entitled to treatment under the NHS.

Noble Lords will be aware—some have mentioned it—of the European Union directive on cross-border patient mobility. Until relatively recently, there was little discussion of the issue of patient mobility at a European level. However, a new generation of Europeans, accustomed to crossing borders with ease and able to purchase goods and services from any part of the European Union, are proving less willing to accept constraints on where they can obtain their healthcare. The new directive brings together several years’ worth of case law established by the European Court of Justice. It makes clear the rules that apply when EU citizens wish to access treatment in another member state. The directive sets out the arrangements under which member states are obliged to accept citizens from other EU states, and explains the rules for refusing such treatment. It also sets out the systems that a state must provide to allow its own citizens to access their rights to cross-border healthcare. I say to my noble friend Lord Lexden that we do not expect an influx of patients rushing to take advantage of NHS services. The NHS does attract some overseas visitors, including many from outside Europe, who pay for their treatment. EU citizens, entitled to treatment under the directive, would be reimbursed by their home system but only up to the cost of providing the treatment in their home state.

There is also a substantial body of European legislation regulating medicines and medical devices. This legislation, harmonising requirements for allowing medicines and devices into the EU, has reduced burdens on pharmaceutical and medical device companies in accessing the whole European market. The UK plays a prominent role in shaping the regulatory frameworks for medicines and devices with the Medicines and Healthcare products Regulatory Agency, which is one of the leading regulators in Europe.

My noble friend Lord Ryder and my noble friend Lady Wheeler—I apologise for calling the noble Baroness, Lady Wheeler, my noble friend, although of course she is—spoke of the clinical trials directive, as did other noble Lords. That directive is designed specifically to harmonise clinical trial practice across Europe. In recent years, there has been a decline in the number of clinical trials conducted in the EU and the UK. That cannot be attributed only to the introduction of the clinical trials directive as international competition for attracting clinical research has increased dramatically in recent years.

However, the Government consider the revision of this directive to be a priority to ensure that the UK remains an attractive place for the conduct of clinical trials. The European Commission is also committed to revising the directive. A scheme was introduced in April this year for the notification of low-risk national trials, replacing the traditional authorisation process, and more risk-proportionate monitoring has been introduced, taking a targeted approach to monitoring that depends on the level of risk a trial represents to patients and data credibility. I should say to my noble friend Lord Ryder that one of the Government’s aims for the revision of the clinical trials directive is to harmonise its implementation across Europe. The Government have been influencing the Commission so that the revision of the directive ensures that the EU becomes an attractive place for the conduct of clinical trials once again.

Another priority for the Government is the revision of the directive on the mutual recognition of professional qualifications. We have made it clear that we want to stop foreign healthcare professionals working in the NHS unless they have passed robust language and competence tests. The proposal published by the European Commission last month contains some welcome amendments, such as a new proactive alert mechanism. This should contribute significantly to tightening the European regulatory framework and improving patient and public safety. While the proposal would not allow language checks by a competent authority before recognition of the qualification of a professional, they do make it clear that controls on language checks would be permissible and could be undertaken before a professional was able to practise. I should say to my noble friend Lord Bridgeman that the Government are currently analysing the proposals in detail to formulate a UK negotiating position. As usual with EU proposals, part of this process will involve consulting the devolved Administrations. I say to my noble friend Lady Scott and the noble Lord, Lord Kakkar, that the Commission’s proposal does contain some welcome amendments, such as that proactive alert mechanism and negotiations on the text are due to begin at the end of January 2012, with the aim of reaching an agreed directive in the autumn of this year.

With regard to the European professional card, which was raised by my noble friend Lady Scott, the Commission has worked with stakeholders to develop proposals for the card. There have been some positive developments in the proposals and it seems that what is now proposed will be underpinned by use of the internal market information system, but we need to seek views from competent authorities about the administrative implications of the proposals before we can finalise our position. The Government have made clear that mobility should not be at the expense of patient safety. The Commission’s proposals recognise the unique position of healthcare professionals and they build additional safeguards into the directive for healthcare professionals in certain areas—for example, in the case of that alert mechanism. Provided that the necessary safeguards are built in for healthcare professionals, we see no reason for a conflict between the joint aims of facilitating patient safety and freedom of movement.

In relation to EEA migrants having access to the vocational year’s training as part of the directive proposals, which was an issue raised by the noble Lord, Lord Kakkar, the proposals were only recently published by the Commission, which was undertaking a detailed analysis to better understand the impact on healthcare professionals and patient safety. A number of aspects of the proposals require further clarification. A key priority for the Government going forward is to ensure that freedom of movement by professionals is balanced by safety considerations.

I move now to the working time directive, which was an issue raised by many noble Lords, including the noble Lords, Lord Kakkar, Lord Walton and Lord Crisp, the noble Baroness, Lady Greengross, and my noble friend Lord Ribeiro. We are committed in the coalition agreement to limit the application of the working time directive in the UK. The agreed government position is that retention of an individual’s right to opt out of the limit on weekly working time must be the UK’s clear overall priority in any renegotiation of the directive. The UK would welcome changes to increase flexibility on on-call time and compensatory rest, but not at the expense of losing the opt-out.

The noble Lord, Lord Crisp, mentioned the opt-out in particular, and my noble friend Lord Ribeiro asked about flexibilities. The directive at the moment affords all doctors the choice to opt out and work more than 48 hours a week. Doctors who opt out can work up to 56 hours—the maximum outlined in the new deal. But breaching that limit would be very costly for the NHS. The opt-out gives working people, including doctors, the choice over their working hours. They are better off because of that choice, we believe. Therefore, it is a Government priority that individuals should continue to enjoy the right to opt out if they wish. The 48 hours is measured over the reference period of six months. Therefore, doctors may in any week work more than 48 hours; there is flexibility. In response to the Temple report, my right honourable friend the Secretary of State asked Medical Education England to advise NHS employers on ways to realign and simplify the new deal. The Department of Health has received its report and is considering the recommendations very carefully, including the case for negotiating a new contract.

I move to organ donation, which was raised by the noble Lords, Lord Walton and Lord Kakkar. The Government are fully committed to supporting action across the EU to increase the number of safe, high-quality organs available for transplant. We are working with the Commission and other member states to help ensure that any legislative framework will not prove to be a disincentive to organ donation and transplantation. I am sure that all noble Lords will agree that having more safe, high-quality organs available for transplant across Europe would benefit all member states alike.

The noble Lord, Lord Kakkar, and my noble friend Lord Clement-Jones, raised the issue of the potential consequences of the application of EU competition law to the NHS under the Health and Social Care Bill. Competition law could already potentially be applied to the provision of NHS services. The relevant treaty provisions have already been incorporated into UK law. The purpose would be to protect patients' interests from abuses. The potential consequences would extend to remedies and sanctions to address abuses in individual cases. However, European case law makes clear that commissioners of NHS services would not be subject to competition in respect of their purchasing activities, so under the Health and Social Care Bill clinical commissioning groups would not be constrained by EU competition law in their decisions on how best to improve services. I have more to say on competition law but unfortunately time is against me.

The noble Baroness, Lady Masham, asked me about the exemption from VAT for air ambulances. I will write to her on that as I do not have the answer in my brief.

The noble Lord, Lord Patel, asked about the data protection directive. The Commission is in the process of reviewing the existing directive and will publish a draft for consultation, which we expect by the end of the month. We will then have an opportunity to comment and give our views. The department is well sighted on this. We are involved in the discussions to ensure that UK researchers are not affected by proposals covering data protection in respect of research.

The noble Lord, Lord Walton, asked about the role that the new Health Research Authority might have in clinical trials. The HRA will not take over the role of the MHRA in assessing and inspecting clinical trials but will be involved in streamlining the processes, as the noble Lord is aware. On 1 December the HRA issued proposals for the further development of its national research ethics service.

Time has moved on. In closing, I will highlight the positive impact that the EU has had on healthcare in the UK. We are able to share experience and expertise with other member states to improve quality and standards and to encourage innovation, and we are determined to ensure that the United Kingdom continues to play a key role in shaping the European health agenda.

Health and Social Care Bill

Earl Howe Excerpts

Monday 5th December 2011 Lords Chamber

[Baroness Thornton]

My Lords, this small group of probing amendments concerns itself with primary care services and the directions that would provide for those primary care services. I will briefly outline each of the amendments and ask the Minister's reactions to them.

On Amendment 239, if directing the board to exercise the Secretary of State’s functions relating to the provision of primary medical services, the Secretary of State must set out how the performance of the board in relation to these functions will be managed and how the interaction with the appropriate health and well-being board will occur. How will that be supported and how will it occur?

On Amendment 239ZZA, the Secretary of State may not direct the board to exercise the Secretary of State’s functions in Section 114 of the 2006 Act, which relates to dental services and the provision of accommodation. Amendment 239ZZB is very similar. It relates to ophthalmic services. Amendment 239ZZC relates to pharmaceutical services. The Clause 205 stand part debate relates to the list of performers of pharmaceutical services and particularly addresses the question of how the Government would intend to support the provision of community pharmaceutical services in the future through the Bill. That is another probing amendment.

I want to hear what the Minister has to say about how local services being commissioned nationally will work in terms of relationships with the health and well-being boards and in terms of the provision and support of community pharmaceutical services. I beg to move.

[Earl Howe]

My Lords, Amendment 239 raises the issue of performance management of the board. Noble Lords will recall the debate on Clause 20, in which I sought to reassure the Committee that new Section 13A of the National Health Service Act 2006, introduced by Clause 20, already enables the Secretary of State to specify the manner in which he proposes to assess the performance of the NHS Commissioning Board. It is not appropriate to set out performance management processes in respect of each and every direction issued to the board by the Secretary of State. I agree about the importance of the NHS Commissioning Board developing its commissioning responsibilities in a way that complements and supports other local health and social care commissioning, as the amendment proposed by the noble Baroness seeks to ensure. As I have indicated previously, the NHS Commissioning Board will be under a duty to have regard to joint health and well-being strategies. It would confuse lines of accountability and would actually be unworkable if we forced a duty on the board to agree with the health and well-being boards on how it will deliver its functions. I hope very much that your Lordships will agree that it is right that health and well-being boards do not have a right to veto plans for the provision of those primary medical services, which the Secretary of State has determined are necessary for patients. The NHS Commissioning Board will also have responsibility for commissioning primary dental services, primary ophthalmic services and pharmaceutical services.

Directions from the Secretary of State—usually of a technical or administrative nature—are currently made to primary care trusts and others in respect of primary care services under existing powers in the 2006 Act. So the provisions in this part of the Bill are not new powers; they are replacement powers adjusted to reflect the new organisations created by the Bill. These amendments would remove essential administrative and operational flexibility to enable those primary care services to continue to be provided efficiently and effectively for the ultimate benefit of patients. I realise that they are probing amendments and that the noble Baroness has no intention of pressing them, but clearly they are not appropriate.

Clause 205 enables regulations to be made that require the board to prepare, maintain and publish performers lists of pharmacists and pharmacy technicians on the abolition of primary care trusts. It replaces those provisions of the 2006 Act that currently relate to fitness to practise for pharmaceutical services performers. It also amends the Act so that, where a performer of local pharmaceutical services is included in a local pharmaceutical services performers list, they can be automatically included in an assistants list of performers and vice versa. We have yet to take a view on implementing performers lists for local pharmaceutical services performers and for those who assist pharmaceutical contractors in the provision of pharmaceutical services. We expect to do so during the coming months. In the mean time, this clause is needed to ensure that, if we do decide to introduce them, the primary legislation will adequately enable this.

The noble Baroness asked how, logistically, the board will manage approximately 8,300 GP contracts. We recognise that the NHS Commissioning Board could have difficulty in appropriately managing primary medical services contracts throughout England without help. The proposals to establish a significant field force as part of the board’s establishment will assist, but it will remain the case that the board’s ability to undertake this task will be enhanced if it can utilise the important local expertise and knowledge that will be available to the clinical commissioning groups. We have put in the Bill an explicit duty for all clinical commissioning groups to support and assist the board in securing continuous improvement in the quality of primary medical services. That is in new Section 14R in Clause 23. Alongside this, direction-making powers in Clause 46—

[Baroness Thornton]

The Minister mentioned field forces that will help to make this work, and I can see that that will almost certainly be the way to do it. But would there be an intention to have expertise in each of the different areas or across the piece? The Minister does not need to answer the question now; he can write to me. But the community pharmaceutical industry would be interested in an answer on how that would be delivered.

[Earl Howe]

I would be happy to write to the noble Baroness in the interests of time, but I was about to explain that as regards primary medical services the direction-making powers that I mentioned will also enable the board to arrange for clinical commissioning groups to carry out some contract monitoring functions and limited commissioning functions on its behalf should it so wish. So the board can enlist the help of the clinical commissioning groups themselves to do some of the monitoring function. That will not alter the board’s overarching responsibility for commissioning general practitioner services and holding their contracts. But I will write to the noble Baroness, as she asks.

[Lord Warner]

Can the Minister explain something to us, if necessary in writing in order not to detain the House? I am very confused about what happens in areas where historically there have been great problems with health inequalities in securing a volume of primary medical services to meet the needs of those communities. I am very unclear who we are expecting to ensure that there is a sufficient volume of primary medical services and what the relative roles of the Commissioning Board, the CCGs and the health and well-being boards are in that context. It is a longstanding problem for the NHS. I do not expect the Minister to answer now, but it would be helpful to have some thoughts in a letter on that issue.

[Earl Howe]

I undertake to write to noble Lords about that, and I agree that it is an important matter.

[Baroness Thornton]

I thank the Minister for that answer. We will return to discuss issues about the community pharmacies, possibly not in Committee or on Report but outside the Chamber, because there are some areas of concern where clarification is required. I thank the Minister for his answer and beg leave to withdraw.

Health and Social Care Bill

Earl Howe Excerpts

Monday 5th December 2011 Lords Chamber

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

My Lords, Clauses 30 and 31 abolish strategic health authorities and primary care trusts and remove the relevant parts of the NHS Act 2006. Let me start by addressing the noble Lord, Lord Warner by setting out where I feel we have consensus, because I think there is some consensus.

There is agreement that decisions in the NHS need to take place at different levels and we need to ensure that decisions take place at the appropriate level. I agree with the noble Lord that these levels do include an intermediate tier and there are decisions which should happen. However, where we differ is on how best to facilitate these decisions. We do not feel that the best solution is to have separate statutory bodies to play this role. Instead, we propose flexible arrangements that will best meet the changing demands of what needs to happen at this level—hence the board’s field force, which noble Lords have spoken about, which will be adaptable in the future to grow and evolve in partnership with CCGs. That is the background to our approach.

As we have already discussed, many of the necessary functions and duties SHAs currently undertake will, in future, be undertaken by the NHS Commissioning Board or by clinical commissioning groups. Where existing functions or duties are unnecessary, we are removing them, making the system more streamlined and reducing administrative burdens. The amendments in this group would prevent the abolition of strategic health authorities until such time as the Secretary of State is satisfied that all of their functions and duties have been transferred to other bodies.

I understand the importance that noble Lords place on getting the timing of the transition right. As the NHS Future Forum pointed out following its consultation exercise, some people felt that the changes were proceeding too quickly, while others were concerned that the pace of change was not fast enough. The forum recommended further changes to phase the transition, and the Government responded by postponing the abolition of SHAs by a year. I believe this allows enough time for a safely managed transition.

The NHS Commissioning Board is due to take on its commissioning responsibilities in April 2013, and we believe that it is vital that SHAs and PCTs do not continue beyond that date. There are two main reasons for that. A key aim of the Bill is to ensure that the functions and duties of all bodies within the system are clearly defined. To have a confusion of responsibilities would be a retrograde step. The second reason is that allowing SHAs to run beyond the current proposed deadline for their abolition would also incur extra costs and hinder the Government from meeting the efficiency targets set by the quality, innovation, productivity and prevention programme. I will say more about that factor in a moment.

--- Later in debate ---

[Lord Mawhinney]

My noble friend knows that three months ago in the Peterborough PCT there was a non-executive chairman and six non-executive directors. To the best of my knowledge, they have all gone. What now constitutes the Peterborough PCT and how does it make decisions when a cluster refers something to it for legal validation?

[Earl Howe]

The clustering is a clustering of the boards. In other words, there is one board serving two or three PCTs, depending on the area of the country. The staff of the PCTs remain in place. There is capacity there to carry out the functions of PCTs. That is why PCTs remain statutorily accountable and they are in a position to perform the functions that the law places on them. We have streamlined the direction from board level. That is a practical and efficient thing to do and I do not think that it poses the kinds of risk that my noble friends were suggesting that it would.

I am very happy to meet both my noble friends again. I would say to my noble friend Lord Mawhinney that I was smiling when he spoke only because I know that Sir David Nicholson would be amused to be referred to as the chief technocrat. I would simply say that the NHS chief executive, while no substitute for me, I quite agree, may nevertheless prove helpful. That is certainly the object of his offer to meet my noble friend.

[Lord Newton of Braintree]

My Lords, I think that we are talking about conflicts of interest in two different senses. My problem about conflicts of interest goes back to the accountability point that the Minister touched on. These two or three PCT boards remain accountable at least in part to the people of the area they were appointed to represent. Then there is conflict of interest in the narrower sense. I am chair of the board of the Suffolk Mental Health Partnership. If I had an interest in a private sector mental health outfit, I would obviously declare that and that is normal business. I am talking about a fundamental conflict of interest between the people on these boards and the interests of the people to whom they are supposed to be accountable, wearing three different hats.

[Earl Howe]

My Lords, my point was that such conflicts have been managed in the past and can be easily managed in future. While there may be a specific example my noble friend wishes to draw to my attention, which of course I shall take seriously, I am not aware of any such examples. The clustering arrangement in practical terms is working efficiently around the country. Of course, I regret if hard-working non-executive directors who have served PCTs in the past have stepped down, because they have done sterling service, but it has been necessary to rationalise that structure.

[Lord Beecham]

Would the Minister care to reply to the rather disturbing question of the noble Lord, Lord Mawhinney, about the threat to members of the PCT who decline to resign and the consequent apparent disqualification from subsequent appointment?

[Earl Howe]

My noble friend refers to the current legal position—that a non-executive director can leave his or her office in only one of two ways: by resigning or by being forced to resign. There is no desire on anybody's part to force non-executives to resign. These are not non-executive directors who in some way have misbehaved—not at all. However, it is necessary in the interests of the NHS that we rationalise the system.

The proposal put before non-executive directors was that, in the interests of the health service, they should consider their positions. That is not because they have done anything wrong but because of the transition that we find ourselves in. I would ask any non-executive directors who are listening or who read Hansard not to take offence at this. It is no reflection of their service to the public or the health service; it is simply a reflection of the transition that we are going through.

With my noble friend's permission, I should cover some of the other questions that have been raised. Of the many functions transferring from SHAs, Amendment 236AAA specifically seeks to address the role of postgraduate medical and dental deans in the new system. I recognise the vital role that the deans currently play to ensure quality within education and training. The important work of the postgraduate deaneries will continue through transition and into the new arrangements from April 2013. The SHAs will continue to be accountable for postgraduate deaneries until 31 March 2013, allowing time for a phased transition of their functions. This will ensure stability and help develop the improved system.

As the noble Baroness indicated, I have undertaken to come forward with more detailed proposals on education and training between now and Report. I repeat that assurance. Further work is under way on the detail of those arrangements with the right accountabilities for the quality of education and training to Health Education England and the professional regulators. That detail will be published as soon as possible. I hope I can reassure her that we have listened to the concerns in this area and that we are taking steps to address them

I would also like to address the matter of Clause 45 standing part of the Bill, which is part of this group. This clause will ensure that the Secretary of State will be able to establish new special health authorities only temporarily, for a maximum of three years. If there is a compelling reason for a special health authority to continue to exercise its functions beyond the three-year deadline, it is possible to extend its existence. However, any decision to do so would be subject to full parliamentary scrutiny via the affirmative procedure. This is to reflect our intention that any body in the health system exercising functions on a longer-term basis should have those powers transparently conferred on it in legislation.

--- Later in debate ---

[Lord Warner]

I am sorry to interrupt, but I am really bemused by what the noble Earl has just said about the accountability of the local entity of the national Commissioning Board to health and well-being boards. Health and well-being boards have no budgetary responsibility whatever, as I understand what the Government are saying; whereas the national Commissioning Board has two lots of budgetary responsibility—for its own specialist commissioning and for its oversight of the money that it hands out to clinical commissioning groups. Perhaps the Minister can explain it to me. I can understand that it might want to consult the health and well-being boards but, in terms of accountability, I cannot understand how it can be accountable for its budgetary priorities and decisions to the health and well-being boards.

[Earl Howe]

It is accountable for its decisions at a regional or sub-national level in a real sense. If it was not interacting with the boards, the noble Lord, Lord Hunt, might have a point; but it will be. I think that that is accountability in a meaningful sense. The noble Lord, Lord Warner, talks about budgetary accountability, and I understand that that is a real issue. Of course there will be no budgetary accountability, but there will be accountability for the decisions and actions taken by the field forces.

I was saying that the structure means that all too often neither of the roles that PCTs perform is performed well. GPs, who actually make the clinical decisions, are not properly involved in PCT commissioning; and PCTs do not have the detailed understanding of their communities or the link to other local public services. The result is an unsatisfactory compromise, with commissioning that fails to deliver improvements in health outcomes and local services that are fragmented and not integrated.

It has been suggested by some noble Lords that one could have kept PCTs and parachuted in a whole lot of doctors, perhaps filtering out some of the administrators. Anyone who has visited any pathfinder CCG and put that question to the doctors and other clinicians involved will know the answers to why that would not have been a valid and sensible idea. The way in which services are commissioned has to depend on the judgment of clinicians and the wisdom of establishing geographic areas for commissioning groups that make sense in terms of patient flows and in terms of links with local authorities, social services and public health. It does not make sense to retain structures that, frankly, are administrative constructs that do not necessarily bear any relation to patient flows or relationships with local authorities. These clinical commissioning groups are being created from the bottom up by those who know what is in the best interests of patients, and it is to patients that we must always return in our thinking. We currently spend £3.6 billion a year on the commissioning costs of PCTs. PCT and SHA management costs have increased by £1 billion since 2002-03. That is a rise of over 120 per cent. We cannot make savings on the scale that we need to while retaining the administrative superstructure of the NHS.

The noble Lord, Lord Hunt, suggested that the pathfinder CCGs were being built on nothing at all. They are not being created from nowhere. They are building on, and are indeed a logical development of, practice-based commissioning groups, of which there were a very significant number. There are currently 266 pathfinder clinical commissioning groups covering 95 per cent of GP practices in England. As I have indicated before, I cannot say how many we will eventually end up with, but that will give noble Lords a rough indication of the order of magnitude.

The noble Lord, Lord Rea, quoted some words of mine from a debate of several years ago. I would simply say to him that I was speaking then of something completely different from the Government’s current proposals, and I am grateful to the noble Baroness, Lady Murphy, for pointing that out. These reforms place leadership of commissioning firmly with clinicians. I completely agree that giving leadership to a non-statutory, private-sector firm would be a bad idea. That is why there are very clear safeguards against this happening. With PCTs, I feel that there was a genuine question over where commissioning leadership really lay, and this is very firmly no longer the case.

On Amendment 236A, I must clarify one point. It is not the case that a clause stand part debate on Clause 30 would be consequential if a Division was to be called on Amendment 236A and won. It would simply amend this clause and not entail that it needs to be removed.

I hope that I have sufficiently covered the issues raised by noble Lords. I do not suppose that I have satisfied everyone, but I hope that I have at least indicated the direction of government policy in a coherent way.

[Lord Rea]

The staff of PCTs below management level are going to be rather disappointed that the Minister did not answer my question regarding their employment and the possibility of their being moved over to the CCGs, where many of their functions are going to be precisely similar. Are they going to be made redundant? Is it going to be possible to move staff over smoothly without a break in their employment status?

[Earl Howe]

My Lords, the rules apply on transfer of employment, and we anticipate that around 60 per cent of PCT staff will transfer to clinical commissioning groups, local authorities or the NHS Commissioning Board. It has been necessary to institute a programme of managed accelerated retirement for those for whom there will be no posts. However, this is being done in as friendly and generous a way as possible and the process is working well. But on the noble Lord’s main concern, yes, the terms and conditions of employment should not alter for those who stay.

[Lord Warner]

Could the Minister give us an assurance that before Report he will give us some idea of the extent to which the current arrangements are going to meet the targets set by the Government for delivering the Nicholson challenge for this coming year, so that we can see the extent to which the Government are at risk if they abolish the SHAs from April 2013?

[Earl Howe]

My Lords, the SHAs have already published their plans for delivering the Nicholson challenge and those are on the SHA website. There is no secret about that. I can tell the noble Lord that we are on target to deliver the Nicholson challenge over the four-year period as a result of savings already made.

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting and instructive debate. I should tell the noble Earl, Lord Howe, that I do not have a rose-tinted view of primary care trusts. They were improving, I believe. But the question that I put to the Government is why on earth, instead of going through this convoluted and complex restructuring, they did not say immediately to primary care trusts that they should divest themselves of the services that they ran and get a move on with giving more responsibility to GPs? They could have done it on their first day, instead of which, instead of SHAs and PCTs, we have a much more complex structure, with clinical commissioning groups, health and well-being boards, senates, the NHS Commissioning Board and—blow me down—their field offices as well. I can tell the noble Baroness, Lady Murphy, that as the NHS Confederation says, we now have a very complex structure—not a streamlined approach that will deal with all the problems of the NHS. My goodness me, this structure will cause as many problems as it is potentially there to deal with.

There are some very serious questions about how the Government have done this. I am glad to know from the noble Lords, Lord Mawhinney and Lord Newton, that I am now part of the same region as they are. I look forward to further discussions and perhaps meetings in Nottingham from time to time, if we are summoned together.

The fact is that, in effect, primary care trusts have been abolished in advance of legislation. I understand what the Minister says—that by creating a cluster with non-execs from the PCTs, in effect those non-execs become the non-execs of each primary care trust. That is how the Government are essentially doing it, but that is a very disingenuous way in which to deal with the issue. They are skating on very thin ice, and the potential for judicial review is, I suspect, quite considerable.

Let us take this issue of the interest of the non-execs in Peterborough and Cambridge. I do not know the area particularly well, but let us say that, because of the financial issues facing Peterborough, a decision was made by the cluster to reduce services in Peterborough and ensure that those patients then went into Addenbrooke’s. I suspect that might well be a proposal. The question arises as to the legitimacy of that decision if people in Peterborough think that they are being marginalised from that decision. That some bold decisions need to be taken I do not doubt, but I suspect that there will be some issues about legitimacy.

As for the issue of tiers, my noble friend Lord Warner is surely right. Since 1948, the health service has not done without a regional tier. The fact that the Commissioning Board is going to have to set up local field forces is a recognition of that, but they will have a heavy responsibility. The financial challenge, the reconfiguration challenge and the specialty challenge call for strong leadership at that level. My argument for the Minister is that they surely need to be accountable and seen to be accountable in their communities. I do not believe that in the end the mandate set by the Secretary of State or the outcomes framework really satisfies that kind of accountability, given that they are clearly going to have to intervene at local level and deal with issues to do with finance and reconfiguration.

I have listened to the noble Lord, Lord Mawhinney, when he advised me not to oppose that Clause 30 or 31 stand part of the Bill. I fully accept what he says. However, as the Minister has made clear, my Amendment 236A stands apart from that. It is a question of timing, and I do not believe that these changes should take place until we are sure that they are right. I beg leave to test the opinion of the House.

Health and Social Care Bill

Earl Howe Excerpts

Wednesday 16th November 2011 Lords Chamber

Moved by

[Earl Howe]

That the House do now resolve itself into Committee.

[Baroness Thornton]

My Lords, I rise to intervene on this Motion today with a very heavy heart—and empty-handed, because the Government have refused to release the risk register on the implementation of the Health and Social Care Bill, as instructed in the judgment of the Information Commissioner last Friday. I am grateful to the Minister for his letters to me and other noble Lords explaining the Government’s position on this matter. Thorough explanations are helpful but they do not make this a right or just position for the Government to take. The Government inform us that they need 28 days to consider this issue. I would just make the point that the Department of Health has had a whole year to think about this issue.

Noble Lords may recall that I drew this important matter to the attention of the House on Monday and specifically asked the Minister to assist the House in its deliberations by making the risk register available. I am most grateful that the noble Baroness, Lady Williams, supported my appeal. Since Monday, it has become clear that the well respected Conservative MP, Dr Sarah Wollaston, made the same plea to her own Secretary of State in a letter to the Evening Standard.

I beg the leave of the House to say I have nowhere else to raise this important matter. I do not wish to delay the House but I want to make two points and ask two questions of the Minister. There is a precedent that I urge the Minister to consider. In 2008 the noble Earl’s then honourable friend, Miss Justine Greening MP, recently promoted to the Cabinet, used an appeal to the Information Commissioner to get the release of the risk documentation on the Heathrow third runway. I am sad to report that my own Government did not cover itself in glory in this matter, refusing to part with the information for more than a year. However, the key difference between then and now is that of course the third runway was not the subject of a very large piece of primary legislation that aims to bring radical change to our NHS and that the information we are being denied could be very relevant to our deliberations.

I have already written to the noble Earl about this matter and intend to follow the same route as my right honourable friend John Healey MP by putting an FOI request in for the most recent risk register about this matter. I urge other noble Lords who share my concern to do the same. The reason I am doing this is because the Secretary of State suggested yesterday that the version of the risk register that my right honourable friend John Healey asked for would now be a year out of date. I regard that as both a glib and disrespectful remark.

The Minister told the House on Monday that most of the information from the risk register is included in the impact statement that was published when the Bill arrived in the House. Can the Minister say exactly how much of the risk register is contained in the impact assessment and how much is not? Perhaps the Minister might assist the House by publishing the information that is not contained in the impact assessment but is in the risk register. The Government say that this is a very secret document, but also that it is available. I am sure that the House would like to know which it is.

Finally, there is a course of action open to the House, which is to refuse to resolve itself into a Committee on the Bill as an expression of its concern about this matter. I have discussed this course of action with several noble Lords, and we have a genuine dilemma here. Many feel that it is a very serious error to refuse to place this information at the disposal of the House when we are considering this important Bill. On the other hand, we are all aware of the amount of work that there is to be done on this Bill. I do not intend to divide the House today, but I reserve the right to come back to this issue if it is not resolved at least within the time allotted by the judgment of the Information Commissioner. The Minister may also need to arm himself with the information contained within the risk register, because I, for one, will be asking him, at all the appropriate moments in the debates to come, whether that issue is mentioned in the risk register and what it says.

--- Later in debate ---

[Lord Campbell-Savours]

My Lords, I read the report the other day and it seems to me that the Government are refusing to publish because they have got something to hide. We want to read this document. The Information Commissioner’s report is a fascinating document which repeatedly, under a number of paragraph headings, states that the Government should publish this document and act in a transparent way in the public interest. That phrase is repeatedly referred to in the course of the document. It is quite incomprehensible that the Government should have taken this very silly decision—a sort of ostrich in the sand approach to these matters.

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

My Lords, I fully appreciate the strength of feeling that noble Lords have on this matter and I hope that the House will accept my assurance that I have no wish to be, or to appear, unnecessarily obstructive over the release of data which your Lordships may feel should be in the public domain.

However, I should bring the House up to date. The ruling of the Information Commissioner carries with it very significant implications, not only for my department but for every department across government. The risk register is a basic tool for the management of policy implementation. It is a working document which informs advice to Ministers. Publication of departmental risk registers, were this to become routine under the Freedom of Information Act, would fundamentally affect the day-to-day working of government. In this context we are of course looking carefully at the issue of precedent, and I am grateful to the noble Baroness for having raised this.

The Government, as a whole, must therefore consider whether or not to appeal the Information Commissioner’s ruling. Officially, we are allowed 28 days from the date of the ruling in which to do this. Consequently, I regret that I cannot make any specific commitment on these matters today. I emphasise that the Government’s wish to take some further time to consider the way forward is in no way an attempt to string this matter out in a needless or obstructive manner. We intend to act with maximum speed. If a decision is taken not to appeal the Information Commissioner’s ruling, we will proceed to comply with it immediately.

I hope, however, that noble Lords will understand the Government’s view that it is reasonable to allow time in which to take a decision on a matter that is both complex and important. Meanwhile, I am very willing to consider the noble Baroness’s constructive suggestion that I should examine whether there are any risks covered in the Department of Health risk register which have not already been placed in the public domain and which could be provided without further ado. I shall give a progress report to the House on these issues at the earliest opportunity.

Motion agreed.

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[The Countess of Mar]

My Lords, I rise briefly to support Amendment 79 moved by the noble Lord, Lord Warner, although he should not have moved it at this stage perhaps; he should have just spoken to it.

As the Minister knows, I am concerned about people with CFS/ME. They are the most neglected, denigrated and discriminated-against group in the country and there are some 60,000 of them who are severely ill, which means that they are homebound and bed-bound. They have multi-system symptoms, which are far too often neglected. They have co-morbidities—one person that I know of, who has had ME since she was 15 and is now 30, has severe gynaecological problems but because she has ME they are not going look at those. Also, she gets no social care. It is very important that these services are thoroughly integrated and that people understand that because you have ME it does not mean to say that all you need is a little bit of CBT and GET and you can get up and go. We have got to provide for people who are severely ill. So I support the noble Lord, Lord Warner, and the noble Baroness, Lady Pitkeathley.

[Earl Howe]

My Lords, CCGs will be under a duty to arrange for services to meet the reasonable requirements of patients for whom they are responsible. This is the language of the current duty on the Secretary of State in Section 3 of the 2006 Act and will remain one of the fundamental principles in the future. Additionally, under their discretionary power in new Section 3A inserted by Clause 11, CCGs will have the power to arrange the provision of services and facilities for the people for whom they are responsible where that will improve physical and mental health or improve the prevention, diagnosis and treatment of illness in those people. However, CCGs do not have commissioning responsibility for all services—for instance, those that the NHS Commissioning Board will commission. For that reason, Amendment 60A would be inappropriate. However, the Bill is already expressly designed to ensure that the comprehensive health service is maintained and that patients’ needs are meet.

Amendments 76 to 78 seek to revise the commissioning responsibilities of CCGs, as set out in Clauses 10 and 11. In effect, Amendment 76 would give each CCG responsibility for commissioning for everyone normally resident in its area, removing the link between the provider of primary medical services with whom a person is registered and the CCG responsible for commissioning services for them. We think it is important to maintain this link. PCT responsibilities currently include people who may be registered with a GP in that area but who live outside the geographic boundaries of the PCT, so this is not something new. Clause 10 also includes some necessary provisions for the Secretary of State to clarify the responsibilities of CCGs in regulations—for example, when a CCG has ongoing responsibility for a patient’s care even if they are no longer a registered patient of a member of that CCG, which is an important element of the policy of continuing healthcare, and when somebody might be excluded from their responsibility, which might apply to patients registered with a GP in England but living in another part of the United Kingdom.

Amendment 78 would change the discretionary power that CCGs would have under new Section 3A into an obligation. That would go much further than the current discretionary powers of the Secretary of State. It would place CCGs in the situation of being legally obliged to arrange any services that it felt were appropriate to meet a patient’s needs. This would conflict with their duty under Section 14P to exercise their functions effectively, efficiently and economically, and could leave them open to challenge. These are judgments that commissioners, as now, need to be able to weigh up themselves in order to achieve the best possible services for their patients with the resources that they have available.

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[Lord Greaves]

In the example that I provided, it is not a service that I am talking about; it is a facility—a new building that hosts a series of services, some of which will be GP services, some of which may be commissioned by the CCG, and some of which may be hospital services. Who, in future, will be responsible for deciding to build a new building in, say, Clitheroe, and commissioning the contracts and so on in deciding to do it?

[Earl Howe]

I am grateful to my noble friend, and I apologise that I did not cover that point. There are, of course, capital budgets. These exist at the moment and will continue to exist. The Commissioning Board will hold them. Where a capital project such as a building needs to be pursued, that money—as opposed to revenue money, which of course funds the commissioning of care—will be used to finance projects that are shown to be cost-effective and necessary to meet the needs of patients in a local area.

[Lord Greaves]

I would like to get to the bottom of this while we are talking about it. At the moment, those capital funds are provided either through the PCT or by the PCT from the money it has in the bank. In future, who will hold the funds to fund those capital projects?

[Earl Howe]

They will be held in the first instance by the NHS Commissioning Board. I anticipate that if a CCG or a group of CCGs wishes to establish a new service that involves a new building, a dialogue will take place with the board to bid for the necessary funds.

The noble Baroness, Lady Armstrong, put a very important question to me about the needs of the homeless. As I have indicated, CCGs will have responsibility for meeting the reasonable secondary care needs of the homeless. CCGs are responsible for unregistered patients in their area as well as those who are usually resident. Primary care for the homeless will be, as now, accessed through GP practices, either as registered or temporary patients, or through open-access GP services, such as GP-led health centres or bespoke services for the homeless. It is important that the needs of the homeless are factored in to the plans not only of CCGs but of the joint health and well-being strategies formed at local authority level. Clinical commissioning groups will participate in formulating them.

Just to clarify the point I made to my noble friend Lord Greaves, I perhaps should have made it clear that the Commissioning Board could in practice allocate capital budgets to a CCG or a group of CCGs. I hope that was implicit in what I said. I re-emphasise that clinical commissioning will deliver better outcomes only if we allow clinicians the autonomy to identify the needs of their patients and communities and to make the key decisions about how best to meet those needs. With that in mind, I hope I have provided sufficient reassurance to the noble Lord for him to withdraw his amendment.

[Lord Warner]

Can the noble Earl help me, before we get to Report stage, on the issue of the integration of services? He used the same argument he used previously, which is essentially that integration is a process and what we should be concerned with in the future is the outcomes framework. The problem for those of us who want to see something more on integration in the Bill is that we cannot quite see how we can change the culture on integration without having something in the Bill. Outcomes frameworks deliver results later on in the process. We see in the future what has happened. The difficulty many of us have is that we do not believe that that future will arrive unless we are more vigorous in this legislation about specifying some requirements on integration. Will the Minister write to a number of us before Report stage to explain how the outcomes framework will deliver that change of culture without words in the Bill about integration, particularly integration between health and social care? I do not expect an answer today, but I would like a clearer answer than the noble Earl has been able to give to satisfy us that we do not need some words in the Bill.

[Earl Howe]

I understand the point the noble Lord is making and I will be happy to write to him and other members of the Committee. The Bill already provides a framework of powers and duties which will support more integrated approaches to meeting patients’ health and social care needs, ranging from requirements to ensure that use is made of research in the health service to the close relationship between commissioners and the local authority and the health and well-being board. We ought not to forget that the NHS Commissioning Board guidance under new Section 14Z(6) could well cover the exercise of this function of integration. I accept the noble Lord’s point that in large measure it is a matter of changing cultures and one cannot achieve that through the written word in a Bill that goes through Parliament. However, I would be happy to put some flesh on the bones for noble Lords in writing and I hope that that will be helpful.

[Lord Cotter]

My noble friend has given a careful response, as always, to the points made. However, will he accept that there is a very special need for focus on rare conditions and the struggle to get both diagnosis and treatment? I hope my noble friend will take note of this because I can attest, through my wife, that there is a lifetime struggle from childhood to get these issues addressed. I hope that will be borne in mind.

[Earl Howe]

I am grateful to my noble friend and I did mean to make specific reference to his speech, which I found very impressive. He is of course absolutely right. There is no doubt that the commissioning of specialised services in recent years has improved in many areas but it is still variable. I do not believe I am misrepresenting those who champion the cause of patients with rare conditions by saying that they welcome the fact that the commissioning of specialised care will now fall to the NHS Commissioning Board. In other words, the commissioning will be done once and not, as at the moment, very frequently 10 times at strategic health authority level. It is absolutely clear that for all sorts of reasons greater consistency and better quality need to be injected into the commissioning of specialised care. The points my noble friend made were ones that we certainly subscribe to.

[Baroness Williams of Crosby]

When the noble Earl was talking about the relationship between health and well-being boards and the local commissioning groups, he said that consultation would be expected but that in the last analysis if there was no agreement there would be no question of the health and well-being board having to approve of the CCG’s plans. In the event of a serious difference of opinion, for example, about provision for the homeless or provision for special needs in a community, would there be any possibility of referring the matter up to the board or would it just be left to them to try to reach the best agreement they could?

[Earl Howe]

Part of the function of the board is to support decision-making at a local level if that is ever required. If there were a serious disagreement of the kind my noble friend describes, I envisage that the resources of the board could be made available to the decision-makers at local level to try to find a way through whatever disagreement had occurred.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, Lord Howe, for his response. Essentially what he is saying is that the reasonable requirement duty based on current legislation, together with the discretionary power in Clause 11, is sufficient to ensure that clinical commissioning groups will commission in a comprehensive way and deal with the many specific issues raised by noble Lords in this very interesting debate. He went on to assure us that if they are not doing that, the annual assessment based on outcomes alongside clinical commissioning guidance will make sure that CCGs are kept up to scratch.

My concern as to whether that is going to be sufficient partly comes because of the attitude of some GP practices to what one might call “difficult to reach” patients; for example, homeless people or people with mental health problems. We have heard about the rare disease issue. I am sceptical that the views of GPs in their surgeries are somehow going to be translated into a much more comprehensive vision the moment they step inside the door of the clinical commissioning group. That, at heart, is where people’s concerns are. I agree that framing an amendment to satisfy this point will not be easy, but I suspect that we will all want to come back at Report to try to button this down.

My noble friend Lord Warner referred to the question of interventions, which is relevant to this. I am still not clear. The Secretary of State has been right to intervene with PCTs on the question of artificial waits for treatment but CCGs will do the same because they will have the same problems with resources. We were told last week that we have got this cancer fund, about which there will be no option. Ministers will make other promises in the future and yet money is being taken out of the health service. There is bound to be tension around the CCG board table. What if it decides that the 18-week wait is no longer important to it or it has a rule that if it is not urgent, a patient has to wait for a certain amount of time—because it is a way of controlling its costs? Where, then, is the intervention going to be?

My final point is about this whole question of the mechanism of health and intervention. I have not picked up the local field force yet—this is an innovation. However, it is quite clear that the NHS Commissioning Board, at a local level, will have to be a local player. It has the right of attending health and well-being boards, and presumably, if we do not get integrated health and social care, it will have to take advantage of that presence. It will hold the contracts of all GPs, so I assume that it will deal with complaints. The local field force will have to deal with the allocation of patients to practices where GPs are refusing to accept them. I am left with a sense that, in fact, there will be quite a large bureaucracy at the local level; the difference being that now it is under a proper public board. In the future it will be an outpost of a massive organisation based at the centre. I question whether that really is an improvement on what we have.

This has been a good debate. I sure we will want to come back at Report stage on the reassurance we need about comprehensive commissioning by CCGs, but, at this stage, I beg leave to withdraw the amendment.

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[Baroness Thornton]

I should just say how pleased I am that the noble Lord, Lord Northbourne, has brought his great experience and commitment to the children and the family into this debate. I urge him to remain in his place for the debate that we are going to have very soon on children.

[Earl Howe]

My Lords, as the noble Lord, Lord Northbourne, mentioned, the two amendments in this group, Amendments 68AA and 69AA, are essentially dealing with the same matter on which we had considerable debate on an earlier day. Both seek to make an explicit reference in the provisions of the Bill to improving the physical and mental health of the population. I can well understand that the noble Lord with his extensive knowledge and experience of child health in particular should have tabled these amendments. The other amendments to which he spoke are in a later group. I shall respond briefly to those, but I hope that he will forgive me if I do not do so at length, because I think that there will be other noble Lords when we get to that group who will want to expand even more fully on the issue of children’s health.

I shall not dwell again, if the noble Lord will forgive me, on issues raised in the course of the earlier debate, on 2 November, but I reassure him that all references to illness throughout the Bill relate to both physical and mental illness. Illness is defined in the 2006 Act to include mental illness. Equally, it is not for nothing that we have chosen the name health and well-being board to refer to the mechanism at local authority level to define the health needs and priorities of a local area and set a health and well-being strategy to guide commissioners. That sense of well-being is to be at the forefront of commissioners’ minds. The Bill does not provide an explicit definition of health, but I assure the noble Lord that it recognises that well-being means more than the absence of illness and needs to be addressed separately. The approach in the NHS Act and other legislation is that health is simply given its ordinary definition and is not redefined.

The noble Lord, not for the first time, spoke compellingly about the importance of parents in supporting both the health and well-being of children. I could not agree with him more. The whole spirit of the measures set out in this Bill is to give more control and empowerment to patients. For children, that includes their parents. As such, I ask the noble Lord not to despair by reason of the lack of words in the Bill on this topic, as the intent is most certainly there. It is not for nothing, either, that the Bill places duties on the Secretary of State and other bodies in the Bill to exercise their functions with a view to securing continuous improvement in the quality of services. The agenda set by the noble Lord, Lord Darzi, in the last Government runs through this Bill like a thread, and it is our ambition for clinical commissioning groups that the prevention agenda should be centre stage for them, as it already is for practice-based commissioning groups, which are looking at what we call the QIPP agenda—quality, innovation, productivity and prevention—as a way of driving efficiency and better quality care into primary medical services. I am sure that all noble Lords’ ambition is that the NHS should not just be a national treatment service; it should be a national health and well-being service in the fullest sense.

On the public front, I am sure that the noble Lord will have noticed that in Clause 8 new Section 2A is inserted into the 2006 Act. I draw his attention to subsection (2)(d) in that new section, which refers explicitly to prevention in the area of public health.

We will come to the other amendments spoken to by the noble Lord when we come to a later group, but I will just comment very briefly on them at this point.

As regards Amendment 71ZAA, our general approach is not to specify particular services in the Bill. It already allows the Secretary of State or local authorities to take steps to improve the health of the people of England or the people in the local authority’s area. Once again, it is a case of making that general provision. Bear in mind that if we specify one group of people, it carries the implication that we are excluding others, which of course we do not want to do.

The same point applies with Amendment 97ZA. Strictly speaking, Amendment 99A is unnecessary. The mandate is clearly relevant to other government priorities. There are already established mechanisms for ensuring that policy is consistent across government and therefore we would fully expect the Department for Education to provide input on any relevant parts of the mandate. I hope that the noble Lord will be reassured by my brief comments on this matter. His comments are well taken; equally in the light of what I have said, I hope that he will feel able to withdraw the amendment.

[Baroness Hollins]

My Lords, I might add that Amendments 68A and 69A refer back to Clause 1 and the Secretary of State’s duty to promote a comprehensive health service,

“designed to secure improvement … in the physical and mental health of the people of England”.

Of course, I support the amendments and note that their purpose is different from the purpose of my own extensively debated and supported amendments, which sought to ensure improvement in the quality of services for people with illness. I specify both mental and physical illness. Rather than speaking about mental health, I actually speak about illness. Instead of detaining the House now, perhaps I could speak to the Minister at a later date.

[Earl Howe]

My Lords, I should be happy to speak to the noble Baroness on this topic. I have been reflecting on it since our debate some days ago. I do not suggest that the amendments tabled by the noble Lord, Lord Northbourne, are designed to do exactly the same as those of the noble Baroness, however they draw our attention to a similar definitional issue.

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Finally, I ask the Minister about government Amendments 88 and 89. I had some experience in this area when I was a Minister, and it was not resolved. I would like an explanation from the Minister. It may be that I have not read the amendments correctly, but I am concerned that their effect will be to widen the powers with regard to children. What is the Government’s intention here? Which parts of children do they intend to measure and weigh, when and where do they intend to do it and which children do they intend to do it to? Do we mean 100 per cent of children in the UK, or only children who attend state-funded schools? Will that include children who go to free schools or the new government academies? Which children are we talking about here?

[Earl Howe]

My Lords, noble Lords who tabled amendments in this group have drawn attention to the particular needs of children. I am in total sympathy with their wish to highlight the importance of children's health in all its facets. The noble Baroness, Lady Wilkins, mentioned Sir Ian Kennedy's report, Getting it Right for Children and Young People, published last year. Sir Ian emphasised that the NHS does not always get everything right for children. He gave us some hard-hitting messages. I say again what I said in my letter after Second Reading: we are determined to build in children's health explicitly and clearly throughout the new system. The NHS reforms are designed to put firm foundations in place to secure improvements, and the Health and Social Care Bill contains sufficient levers to ensure that the new NHS will work better for children.

I thank the noble Lord, Lord Ramsbotham, for his very compelling contributions today and at Second Reading, when he raised questions on speech and language therapy. I commend his work as chair of the All Party Parliamentary Group on Speech and Language Difficulties. I also thank the noble Baroness, Lady Wilkins, for her extremely constructive remarks. I share the commitment of the noble Baroness and the noble Lord to ensuring the early identification of speech, language and communication needs among pre-school children. What can we do about this? One thing that we can do and are committed to doing is beefing up community health resources targeted at the well-being of children and families. In that context, I reassure noble Lords who spoke to these amendments that we are committed to increasing the health visitor workforce by 4,200 by 2015.

We are equally committed to improved delivery of the healthy child programme, which includes a development review at the age of two to two-and-a-half. That provides a huge opportunity, and we are clear that it has to be seized. Everything that has been said by noble Lords about child development in the early years is absolutely to the point. The noble Baroness, Lady Armstrong, rightly referred to the family nurse partnership programme, which has done a tremendous amount, as she explained to us, to address the needs of what were traditionally considered hard-to-reach families.

In his absence, I would also like to thank the noble Lord, Lord Northbourne, for his earlier remarks. I will take the opportunity to address his specific concerns. The Bill as drafted would already allow the Secretary of State or local authorities to provide services to parents or prospective parents where that was a step whose primary purpose was improving health. We recognise that the health and well-being of women before, during and after pregnancy is a critical factor in giving children a healthy start in life and laying the groundwork for good health and well-being in later life.

How can we do this better? The Health and Social Care Bill will, we believe, provide the basis for better collaboration and partnership working across local government and the NHS at all levels. The drivers of the integration in the NHS will be the CCGs and the NHS Commissioning Board. Both have new duties to promote integrated working by taking specific action where beneficial to patients. In addition, the Bill gives each health and well-being board a duty to encourage integrated working between health and care commissioners to advance the health and well-being of the people in its area. That would include children and young people.

The key NHS and public health contributions to speech, language and communication needs are these: first, early identification of pregnant women who may themselves have had the same kinds of difficulties and who would benefit from enhanced support in preparation for parenthood; secondly, building the capacity of universal services working with young children to provide the support required in the early stages, enabling speech and language therapists to focus their support where it is most needed; thirdly, early identification of children with speech, language and communication needs, where enhanced health visitor capacity and better delivery of early years reviews at the age of two to two-and-a-half will be a focus; fourthly, local planning and commissioning for speech and language therapy services through clinical commissioning groups; and, fifthly, consideration of how high-cost and low-volume provision should be commissioned in the new system.

The Government are also committed to tackling obesity and to the continuation of the national child measurement programme. Now in its seventh year, this is a trusted source of world-class data, providing annual information on levels of overweight and obesity in primary school children in their reception year and in year 6. The government amendments in this group amend the powers of the Secretary of State in paragraph 7B of Schedule 1 to the NHS Act 2006 so that he can make regulations about the processing of the full data set of information relevant to this programme. This would include both information resulting directly from the weighing and measuring activity and other relevant data held by local authorities. The amendments also ensure that he can require persons exercising functions in relation to the programme to have regard to guidance about the processing of that information. Our proposals aim to ensure that this important programme can continue to operate in full effect once it transitions to local authorities, along with other public health functions, from April 2013. I hope that the Committee will support the amendments.

I have discussed the vital importance of a focus on children’s needs throughout the NHS, but in our view it would not be appropriate to anticipate priorities in future mandates by enshrining in legislation the inclusion of objectives relating to particular sections of the population—a point I made earlier to the noble Lord, Lord Northbourne, while he was in his place—nor would it be appropriate to impose requirements on CCGs to exercise their functions with reference to specific patient groups or treatments. What you do not emphasise, you can serve to downplay.

CCGs are already under a duty to exercise their functions with a view to procuring that health services are provided in an integrated way for all patients where they consider this will improve the quality of health services and outcomes and reduce inequalities in outcomes and access. The duty also applies in relation to the integration of health services with the provision of health-related and social care services. Where education and children’s services are health or social care-related, they would therefore already be covered by this duty.

The noble Baroness, Lady Wilkins, and the noble Lord, Lord Ramsbotham, tabled a series of amendments concerning the role of health and well-being boards. I fully support the need to ensure the effective assessment of need and access to professional advice on education and children’s services. However, although extremely well intentioned, the amendments are unnecessary and also run counter to the principle of local areas being best placed to assess local need and to access appropriate local expertise. I hope that noble Lords will not press those amendments.

On Amendment 91A, on our second day in Committee we discussed a group of amendments on the topic of integration. There were numerous extremely valuable contributions from many noble Lords that ensured that we had a very informative debate. However, it may be helpful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Wilkins, if I briefly mention that the requirement the Bill places on the board and the clinical commissioning groups to promote integration when commissioning services is very germane in this context. Clauses 20 and 23 contain new Sections 13M and 14Y which create duties for national and local commissioners to promote integration across health and social care. I am thoroughly supportive of the intention behind this amendment. Better integration of services will undoubtedly lead to high quality and better care for patients, and that is why we have asked the NHS Future Forum to consider in more detail how we can ensure that our reforms lead to better integrated services. I am very much looking forward to receiving its recommendations which will be published before the end of the year. I hope that the noble Lord and the noble Baroness will feel reassured by that.

I think the tenor of the question from the noble Baroness, Lady Thornton, was about whether all children’s public health services should be commissioned at a local level from the outset in 2013 to avoid fragmenting the delivery of programmes and care pathways. We believe that the commitment to secure a 50 per cent increase in the number of health visitors and thereby ensure associated improvements in support for families is best achieved through NHS commissioning, and we have therefore retained our original proposal that the NHS Commissioning Board should lead commissioning in this area in the short term. However, we wish to engage further on the detail of the proposals, particularly in respect of transition arrangements and the best way to begin to involve local authorities in local commissioning of these services in partnership with the NHS.

The noble Baroness also referred to the important issue of safeguarding children. Local authorities will continue to lead on safeguarding children arrangements under the Children Act 2004. The board and CCGs will be members of local safeguarding children boards. I have already spoken about the national child measurement programme, and I hope that I covered the noble Baroness’s questions adequately on that topic.

The noble Baroness asked why the government amendment allowed any other information to be prescribed. The amendment will maintain the Secretary of State’s powers to regulate the processing of child measurement data after local authorities undertake the measurement programme, in the same way that PCTs currently deliver the programme. It would not be appropriate to set out the full national child measurement programme data set in primary legislation, as she will understand. The power also gives flexibility to make changes to the data collection that will be needed going forward, and that will allow the Government to ensure that the national child measurement programme remains fit for purpose. Of course, the introduction of any new data would need to be set out in regulations, subject to public consultation and the negative parliamentary procedure.

I hope that that covers the ground adequately. Once again, I thank noble Lords for their contributions. I can now see that the noble Baroness, Lady Whitaker, wishes to ask me a question.

[Baroness Whitaker]

It is the same question. In the noble Earl’s very comprehensive answer, did I miss whether speech, language and communication problems were within public health? I do not recall hearing him answer that question.

[Baroness Thornton]

While the noble Earl is collecting questions that we feel were not answered, I asked specifically about the risk register, whether it is 100 per cent of children and where the weighing and measuring is taking place.

[Earl Howe]

My Lords, I will have to write to the noble Baroness on that question, and indeed some of the other questions that she posed in her speech. I hope she will allow that. As regards speech and language therapy, rather than give the noble Baroness an answer that may turn out to be incorrect, I may have to drop her a note. I will write to her.

[Lord Ramsbotham]

My Lords, I thank the Minister for his habitually thorough and sympathetic summing up. I think we can look forward to further work on this subject. I also thank all those who have taken part in this debate, and particularly the noble Baroness, Lady Wilkins, for her words. I must apologise to the House for saying that it was district nurses who did the work; of course, it is health visitors.

I have two concerns, one of which the noble Baroness, Lady Whitaker, has just mentioned, which is the question of confirmation that this is a public health issue. My second concern is, in the words of the Minister, that this should be left to be a local issue. I am concerned about the number of issues that are being devolved to local government for it to have to decide differing priorities. That is an unfair burden in this particular issue, which I do not believe should ever be left to be a postcode lottery for the children of this country. In that spirit and bearing in mind that I shall look very carefully at what the Minister said, I beg leave to withdraw the amendment.

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[Earl Howe]

My Lords, the noble Lord, Lord Hunt, has introduced these two amendments which deal with the important issue of mental health, high-secure mental health services in particular. Amendment 85 would reinstate the Secretary of State’s duty to provide high-secure services. I want to reassure the Committee that while this duty has been removed, the Bill is clear that the Commissioning Board must arrange provision of these services. But I recognise the concern and I agree that we must ensure these services are provided and that the Secretary of State continues to be involved. High-secure mental health services are highly specialised and have close links to the criminal justice system. They deliver high-quality clinical care and public protection. We have, therefore, set out in the Bill powers of direction over the NHS Commissioning Board in relation to its commissioning of high-secure services and over high-secure providers in relation to the actual provision of high-secure services. To give a couple of practical examples of the Secretary of State’s accountability, he needs to ensure that there is sufficient capacity in the high-secure system so that when the Secretary of State for Justice directs an offender to a high-secure hospital, there will be a place. Secondly, the Secretary of State for Health also needs to ensure that the high-secure system is safe and secure so that the Secretary of State for Justice is confident that when offenders are directed there, public protection will be upheld. The Bill also requires the Secretary of State to authorise high-secure providers. I am confident that these measures together ensure that these services will be properly commissioned by the NHS Commissioning Board, while retaining appropriate levels of intervention by the Secretary of State. I therefore hope the noble Lord will feel comfortable in withdrawing his amendment. He asked about oversight of secure mental health services. The commissioning of those services, as I have said, will be overseen by the Secretary of State. CQC and Monitor will oversee the provision of secure mental health services.

Amendment 86 would introduce a direction-making power in relation to the NHS Commissioning Board’s commissioning of mental health services in general. The noble Lord did not speak at length to that amendment. I explained just now that it is appropriate for the Secretary of State to have direction-making powers over the board in relation to the commissioning of high-secure mental health services. That is because of the specialised nature of those services and the links to public protection. But the noble Lord will not be surprised to hear me say that the introduction of a direction-making power in relation to the board’s commissioning of mental health services in general is not consistent with the approach in the rest of the Bill. As the noble Lord knows, mental health encompasses a huge range of conditions and services and individual needs and we believe local commissioning by clinical commissioning groups will be the best solution to meet most mental health needs with some commissioning by the NHS Commissioning Board for more specialised areas of care.

The noble Lord expressed doubts about the extent to which CCGs will have the necessary focus on mental health. Here we come back to the role of the board in issuing commissioning guidance to CCGs, underpinned by the quality standards that NICE will produce. We should remember, too, that CCGs will be consistently held to account against the outcome domains of the commissioning outcomes framework. Part of the holding to account will embrace mental health outcomes.

We demonstrated our commitment to mental health with the early publication of the cross-government mental health strategy. We had a lengthy debate about that important area earlier in the Committee's proceedings. I have no doubt that there is more to say, but I hope that, after those few remarks, the noble Lord will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl. On the role of the board in commissioning services, I will make a general point: clearly the national Commissioning Board will be very important. How it works should be scrutinised. I suspect that this will lead us on to the question of the mandate, which we will debate next week. At this stage, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Earl Howe]

88: Clause 14, page 9, line 24, after “(1)(d)” insert “—
(i) ”

--- Later in debate ---

[Earl Howe]

My Lords, the standing rules will set the ongoing legal requirements for both the NHS Commissioning Board and the clinical commissioning groups. We intend to use the standing rules to replicate core elements of the current system, setting out the ongoing requirements, which will predominantly replace existing directions from the Secretary of State. As the standing rules will set out system-wide generic requirements, they will not apply to individual CCGs. While the rules will be kept under review, we do not expect to update them annually.

Clause 17 confers powers to make standing rules in a number of specified areas. The powers will be used to maintain the existing arrangements for NHS continuing healthcare—that is, care arranged and funded solely by the NHS for individuals outside hospital who have ongoing healthcare needs. They will also set out the mandatory terms to be included in commissioning contracts, set requirements around the provision of information and provide the legal basis for certain patient rights in the NHS constitution.

In addition to the particular areas specified in the clause, the Secretary of State will have a backstop power to make standing rules in other areas, under subsection (7)(c) of new Section 6E. He can require the board and clinical commissioning groups to do other things which he considers necessary for the purposes of the health service. The power simply provides a prudent degree of system flexibility to take account of changing circumstances in the NHS.

Noble Lords have tabled a number of amendments regarding the scrutiny that the regulations will receive, both through consultations and by Parliament. The noble Lord, Lord Hennessy, spoke with great force and persuasiveness on this theme. There are two elements to the scrutiny question—public consultation and parliamentary scrutiny. I can assure the Committee that in line with good practice across government, we fully intend to consult publicly on any new proposals for standing rules. The Health Select Committee would have the opportunity to examine proposals, and Ministers and the department would of course engage constructively with the Committee on any inquiry. However, I do not think that it is usual practice for legislation to set expectations on how the Government should work with Select Committees or on which areas the committees should focus.

Questions have also been raised about whether the board should be required to consult interested parties, such as representatives of CCGs and providers, before it drafts standard contract terms. We believe that regulations should be flexible on that point and minor changes will not always require consultation. Therefore, the regulations should be able to provide for this flexibility where necessary.

As to questions of parliamentary scrutiny, the standing rules will be subject to the negative resolution procedure, with the affirmative procedure used if the Government exercised the backstop power to make standing rules to require the board and clinical commissioning groups to do other things that the Secretary of State considers necessary for the purposes of the health service. The Delegated Powers and Regulatory Reform Committee of your Lordships’ House was satisfied with these arrangements, as set out in its recent report on the Bill, which I was pleased to note.

The noble Lord, Lord Hunt, asked why the standing rules are not subject to the affirmative procedure. The rules will replicate current provisions in existing legislation, so we believe that the negative procedure provides for adequate scrutiny of these provisions. However, we agree that the affirmative procedure is important in other cases, which is why the broader power to allow the Secretary of State to make regulations which require the board or CCGs to do such other things as the Secretary of State considers necessary for the purposes of the health service—under subsection (7)(c) of new Section 6E, to be inserted into the NHS Act under Clause 17, which is a very generalised provision—will be subject to the affirmative procedure, which we think is the right balance.

Incidentally, the noble Lord remarked that, in his view, one cannot move in this Bill for delegated powers. I disagree with that. I think that this Bill represents a very significant transfer of power from the Executive to Parliament through placing far more detail in primary legislation as to the structures and workings of the health service than we have ever had before. For example, this Bill enshrines a process for the tariff, which is currently nowhere to be found in legislation.

The noble Lord asked about consultation on the standing rules themselves. The consultation to which the noble Lord referred is consultation by the board on standard contract terms with interested parties. Consultation on the standing rules themselves will be consultation by the Secretary of State. We intend to consult on these in line with good practice, as I have indicated.

Noble Lords also raised concerns about integration. We have discussed this topic at some length already, so I will be fairly brief. I can reassure noble Lords that the board and CCGs will be subject to the public sector equality duty set out in Section 149 of the Equality Act 2010—I am looking here particularly at the noble Baroness, Lady Wilkins, whose points I fully took. This is in addition to the duties set out by this Bill that require the board and CCGs to have regard to the need to reduce inequalities in outcomes and access to services when exercising their functions. I agree with the noble Baroness that awareness, training and understanding of the particular needs of people with disabilities are absolutely vital for all health bodies if they are to ensure that the improvement in outcomes that is needed in this area can be realised. We keep coming back to the outcomes framework. We should not forget it. It is not necessary to put it in the Bill but it does overarch the Bill, and we believe that the Bill creates the framework for the NHS to improve through the combination of clinically led commissioning and strengthened joint working.

Turning to the concerns raised by my noble friend Lord Lucas in his amendment, I draw the Committee’s attention to the provision that enables the standing rules to set out the mandatory terms to be included in the commissioning contracts. We expect that contracts will include, as now, provision to ensure that private providers are required to assist and co-operate with commissioners to enable them to comply with their disclosure obligations under the Freedom of Information Act. The underpinning of this is that, where a provider is not a public authority—that is, not an NHS trust or an NHS foundation trust—there is a provision in the current contracts for private providers to do exactly as I have indicated. I can tell my noble friend that we intend to use the standing rules to continue this provision, and I hope he will feel that that is entirely in keeping with, and goes with the grain of, his Amendment 92.

I also want to touch on the provisions that relate to EU obligations. These should be read alongside Clause 16, which allows the Secretary of State to delegate EU functions to the board and clinical commissioning groups. It sets out two types of direction-making power: one to direct about the exercise of delegated EU functions and the other to direct about any functions to ensure that we can respond quickly to potential breaches of EU law. Where there are ongoing, predictable requirements that derive from EU obligations but that do not relate to functions delegated under Clause 16, the power in the standing rules will be appropriate. We think that it is preferable to put such requirements in regulations rather than directions as this allows for parliamentary scrutiny and certainty for the NHS.

In the light of the details that I have set out, I hope that noble Lords who have spoken will feel able to withdraw their amendments.

[Lord Lucas]

Does my noble friend want my 15-minute speech now or will he promise me a meeting before Report stage? Given judgments that have already been made in parallel cases in other parts of freedom of information law, I do not believe that the solution he offers will work and achieve what he has promised. I shall be very happy to swap him a meeting before Report stage for a 15-minute speech now.

[Earl Howe]

I can undertake to meet my noble friend, whom I am always pleased to talk to. I hope that I am not unfairly denying the Committee the pleasure of listening to my noble friend, with what I am sure would have been some eloquent words.

[Lord Hennessy of Nympsfield]

I am very grateful to the Minister for his, as always, very thoughtful reply. I am grateful, too, to the noble Baroness, Lady Barker, for her point, which I fully accept, about the collective gift of this Chamber when it comes to detailed scrutiny. Quite naturally, I also note her point about the sovereignty of Select Committees in the other place. In some ways it sounds an innovative suggestion that the Health Select Committee should take on this scrutiny regulatory task, but there are some precedents—remedial orders under the Human Rights Act, following declarations of incompatibility, and orders under the Legislative and Regulatory Reform Act 2006, are all made only after scrutiny in draft by the relevant Select Committees.

I think that this matter is too important to the accountability question as a whole for it to be abandoned at this stage. Therefore, I am confident that several noble Lords will wish it to be re-examined once more on Report. In the mean time, I beg leave to withdraw the amendment.

Health Professionals: EEA and Non-EEA Citizens

Earl Howe Excerpts

Thursday 8th September 2011 Lords Chamber

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

My Lords, my noble friend Lord Bridgeman deserves our thanks for tabling this very useful debate and for introducing the subject so ably. As he and other speakers have rightly indicated, there is considerable disquiet about the implications of European law in respect of the free movement of healthcare workers. I should particularly like to congratulate the noble Baroness, Lady Young of Hornsey, on her committee’s very helpful report and on her concise remarks today in support of it.

Several healthcare professional regulatory bodies have expressed concerns about whether we have the right safeguards in place to check whether European Economic Area migrants wishing to work in the UK are fit to practise. They have called for new powers for checks on such migrants. Under European directive 2005/36/EC, many EEA migrants will automatically have their professional qualifications recognised by the relevant UK regulatory body, whereas healthcare workers from countries outside the EEA will generally be subject to checks upon their competence and communications skills before they are allowed to register.

Any EEA national whose qualification is automatically recognised must hold a European qualification which conforms to the standards set out in the directive. Picking up the point so well made by the noble Lord, Lord Winston, this should ensure that, for example, a general care nurse’s qualifications broadly attest to his or her competence, but it is then up to whoever employs, or contracts with, the nurse to make sure that the individual in question has the right skills and qualifications for the role. My noble friend Lord Colwyn made this point very well in the context of dentists.

The UK system of health professions regulation largely treats registered professionals equally, regardless of their nationality and background. The differences lie primarily in entry to the profession—that is to say, entry into the register. In looking at the directive, our view is that elements of it need strengthening but overall the system for mutual recognition is effective. I can, however, reassure my noble friend Lord Hunt that we are absolutely committed to making the European system as strong and robust as it can be.

This summer we have been working constructively with other government departments and the health regulators themselves to formulate our response to the European Commission’s Green Paper on reforms to the directive. On that Green Paper there is very little on which the department and our partners disagree regarding areas of the directive that need strengthening. We agree that the harmonised training standards underpinning automatic recognition need updating and that a mechanism for regular updates is required. We would also like to see a focus over time on competencies in training rather than particular length of training.

My noble friend Lord Hunt referred to continuous professional development. We think that all member states should be required to have a system of CPD in place for the healthcare professions on their territories. Out-of-date training for the health professions can pose a much greater risk than for other professions covered by the directive. We agree that that issue needs to be tackled in a revised directive. We would want to ensure that EEA migrants subject to CPD requirements in their home state are obliged to demonstrate they meet such requirements when they register in another member state.

My noble friend Lord Bridgeman mentioned the principle of partial access. We share his concerns. The concept exists in European law through case law, whether we like it or not. The current case law allows that partial access can be denied if there are overriding reasons of public interest. We would argue that this means that it is not applicable to the health sector, particularly where harmonised training requirements apply. However, to avoid doubt about this, we wish to see explicit provision in the directive to clarify this point.

My noble friend and the noble Lords, Lord Winston and Lord Kakkar, referred to the issue of language checks. In fact, I think all speakers did so. Article 53 of the directive also states that those benefiting from automatic recognition,

“shall have a knowledge of languages necessary for practising”,

in the relevant member state. However, case law from the Court of Justice of the European Union precludes systematic language testing at the point of registration, and European Commission guidance states that the lack of language knowledge cannot be a ground for refusal of recognition of qualifications. So while a competent authority could test the communications skills of a healthcare worker from a non-EEA country, it could not routinely or systematically do the same for an EEA healthcare worker. Furthermore, such checks could not act as a barrier to recognition of their professional qualifications. However, both the directive and case law support language checks before a professional takes up a particular role provided that checks are not systematic, are proportionate and reflect individual circumstances.

In the UK, we have implemented a system of checks at a local level through duties on primary care trusts and guidelines to local NHS employers. The noble Lord, Lord Winston, is totally right to say that this is an issue of major importance for the quality of patient care. We have already taken steps to strengthen the system, and since January all designated bodies have been required to nominate or appoint a responsible officer—for example, a medical director in an NHS trust. In England, the responsible officer’s duties include ensuring that medical practitioners have the qualifications and experience necessary for the role and that references are checked. However, we think that we can and should do more, so we are working with the GMC to develop further proposals that will build on these existing duties.

Work is currently focused on the medical profession because risks there are perhaps most acute, especially in the context of general practice. However, we will also work with the relevant healthcare professional regulatory bodies and the European Commission to explore how a strengthened system of proportionate local checks might be introduced for other professions where there is evidence of justified concerns about patient safety.

The noble Lord, Lord Kakkar, referred to the unfairness to migrants from non-EEA countries. I think the issue here is that regulators have to reconcile the need for fairness and reasonable treatment of migrants seeking registration with their principal objective of protecting public health and safety. International migrants, as the noble Lord said, may undertake training in a very different cultural context—for example, in relation to child protection. For that reason it is essential that robust checks on professional competence are undertaken. At the point of entry to the UK, the regulator may seek confirmation from the home member state, if it is an EEA candidate, that there are no known concerns about the individual. Our concern relates more to the need for a proactive duty to share information when concerns actually arise.

My noble friend Lord Colwyn spoke about dentists in his customarily authoritative way. We consider that there is an opportunity here in the context of the proposal to update the minimum training standards in the directive to address the long-standing concerns that some newly qualified EEA dentists do not have the same level of practical training at the point of qualification. It will, however, remain essential that PCTs and other contracting or employing bodies ensure that any person they appoint to their performers list is appropriately trained and qualified for the role to which they will be appointed.

On the issue of our interaction with the EU Commission and the efforts by my department and those of the Department for Business, Innovation and Skills, I can reassure noble Lords, in particular the noble Baroness, Lady Thornton, and the noble Lord, Lord Winston, that the two departments have been working very closely together on the production of a response to the Green Paper. The closing date for responses to the Commission is 20 September. The Government’s response is being finalised more or less as I speak.

My noble friend Lady Hussein-Ece was correct in what she said. There is no question that, overall, the UK healthcare system benefits from the free movement of professionals and has done for many years. Thankfully, the NHS is moving more and more towards self-sufficiency in terms of its workforce but her point was very well made.

However, perhaps I may conclude by re-emphasising one issue. It is essential that there are effective checks on the suitability of all healthcare professionals for the specific jobs that they are going to undertake. In that context, there has to be, as there is now, a key role for those employing or contracting with healthcare professionals in undertaking those same checks.

Health: Cancer

Earl Howe Excerpts

Thursday 11th November 2010 Lords Chamber

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

My Lords, I begin by expressing my gratitude to the noble Baroness, Lady Finlay, for securing today’s debate and I pay tribute to her for the expertise and leadership that she has shown as chair of the All-Party Parliamentary Group on Dying Well. It is also a particular delight to welcome my noble friend Lord Howard of Lympne and to congratulate him on the not unexpected excellence of his maiden speech.

Cancer, regrettably, touches many people’s lives. In England, more than 250,000 people are diagnosed with it every year. One in three of us will develop cancer in our lifetime. One in four of us will die from it. Today’s debate comes at a timely point, as the Department of Health prepares a new strategy to improve cancer care in this country. While survival rates have improved over the past 25 years, we still compare unfavourably with other leading European countries. We believe that up to 10,000 lives a year could be saved if we could bring cancer survival up to the standards of the best.

One of the main reasons why we languish behind is that we diagnose cancer at a later stage, partly because British people typically present later with symptoms. Cancer Research UK’s cancer awareness measure suggests that only one in three people can recall common cancer symptoms. I agreed with everything that the noble Baroness, Lady Wall, said on that issue. We need to do better, which is why the Government are investing nearly £11 million in new campaigns to alert people to the symptoms of bowel, breast and lung cancer—three of the biggest killers. These will not be the conventional, one-size-fits-all campaigns that we have seen in the past. Most of the funding will go into tailored, local approaches—genuine grass-roots campaigns—firmly evidence-based and using the best marketing techniques to raise awareness.

Once a person presents with suspect symptoms, fast access to diagnostic tests is crucial. The noble Baroness, Lady Finlay, my noble friend Lord Clement-Jones and the noble Lord, Lord Wills, referred to the one-week commitment. The previous Government proposed this policy with considerable fanfare, although they were a little quieter about how it would have been paid for. The price tag attached is very considerable, reflecting the serious practical implications that the policy entails. The coalition’s view is that a blanket one-week access target would not be the best use of the resources that we have and that the proposed target was not based on clinical evidence.

Patients with suspect symptoms are already placed by their GPs on the two-week urgent referral pathway. On average, that pathway is being adhered to. My noble friend Lady Hussein-Ece rightly emphasised early diagnosis. The cancer reform strategy review is looking at what we need to do to tackle late diagnosis of cancer, such as encouraging patients to recognise and present cancer symptoms, supporting GPs to diagnose cancer earlier and improving primary access to diagnostic tests for cancer. The new outcomes framework will give a consistent set of measures and expectations for the NHS to follow. GPs will make their referral decisions based on the best clinical evidence on what achieves the best outcomes.

Of course, good information is the key to this. If commissioners can see what others are spending their money on and what results they are achieving, they are in a better position to make the right choices for their patients. The department is already helping commissioners to interpret the data that they have in order to support better decisions. This includes the latest information on access to cancer services. The noble Baroness, Lady Finlay, asked whose responsibility it will be to ensure that early diagnosis happens once the reforms have taken place. In future, the new public health service will have an important role to play in promoting awareness of symptoms of disease and in encouraging early presentation. Of course, the public health service will need to work closely with the NHS, which will be responsible for having the services in place. We continue to publish diagnostic test and referral-to-treatment waiting times so that service commissioners and providers can address any long waits and variations in waiting times and so that patients can take this information into account in deciding where they want to go for their diagnostic tests. Patient decision aids are one way of helping patients to make better decisions with their doctor about their care and treatment. We are seeking views on the use of patient decision aids as part of the consultation that is under way on greater choice and control.

The noble Baroness, Lady Finlay, asked about the sanctions and levers in the system. The NHS commissioning board will be responsible for ensuring that consortia are accountable for the outcomes that they achieve, for their stewardship of public resources and for their fulfilment of the duties placed on them. The board will intervene in the event that a consortium is unable to fulfil its duties effectively or where there is a significant risk of failure.

Screening is another key way of detecting cancer earlier. As noble Lords will know, NHS screening programmes save many thousands of lives each year. Breast cancer screening alone saves 1,400 lives, making it one of the most effective programmes in the world. However, people should go into screening programmes with their eyes open, aware of what the procedure involves and what the risks and benefits are. Concerns have been raised about overdiagnosis and overtreatment of breast cancer due to screening. We are now redrafting the leaflet that all women receive prior to screening so that those risks are made clear. The new leaflet will be published in the near future.

The noble Lord, Lord Wills, spoke about prostate cancer screening and we heard a powerful contribution on prostate cancer from the noble Lord, Lord Kinnock. As both noble Lords will know, the Government work closely with the Prostate Cancer Charity—as did the previous Government—through the Prostate Cancer Advisory Group. Overarching the advice on screening that we receive is the work of the National Screening Committee, which advises on, and continues to review the evidence for, screening programmes. The noble Lord, Lord Wills, asked whether we would introduce screening for prostate cancer. The NHS constitution states:

“The NHS … commits … to provide screening programmes as recommended by the UK National Screening Committee”.

We have said that we will support the rollout of screening programmes for common cancers where the evidence supports this. On 22 October, the committee’s consultation on screening for prostate cancer came to an end and it will make recommendations to Ministers in due course.

We believe that the new flexible sigmoidoscopy for bowel cancer could save up to 3,000 lives a year. The National Screening Committee met yesterday to discuss how this procedure could be used to deliver best results. The noble Baroness, Lady Finlay, spoke about this, as did the noble Lord, Lord Beecham, in his very moving speech. The National Screening Committee has just met to review the evidence for a bowel cancer screening programme using flexible sigmoidoscopy. The recommendations will be in front of Ministers shortly. The noble Lord, Lord Beecham, also referred to stoma nursing. The Government recognise the valuable role that specialist nurses, including stoma nurses, provide. The noble Lord may wish me to write to him on that subject, which I am happy to do.

The noble Lord also spoke about colonoscopy. I have it on good authority—that of the noble Baroness, Lady Finlay, who has kindly passed me a note—that colonoscopy is helpful but looks only at one point in time. It is not a pleasant procedure and it is not risk-free either, so overall many clinicians believe that there can be better approaches to diagnosis.

After diagnosis, surgery tends to be a key part of the clinical response. New and less invasive surgical techniques are being developed, notably keyhole surgery, but of course access to the new techniques requires trained, specialist surgeons who treat enough patients to keep their skill levels up and the safety risks down. As NICE guidance tells us, this may mean consolidating specialists into regional centres of excellence, where there are sufficient volumes of patients.

The noble Baroness, Lady Wall, spoke about postcode prescribing. I agree that this has been a worry for some time. We need to expand access to cancer drugs in particular. That is why last month the Government launched a consultation on the cancer drugs fund and confirmed that from next year the NHS would receive £200 million a year on top of the £50 million provided for the rest of this financial year. Patients are already benefiting from the interim funding. The Rarer Cancers Forum has said that the fund could help more than 2,000 patients this year alone.

For 2011-12, the cancer drugs fund will continue to be run through strategic health authorities. We believe that that is the best way of balancing responsiveness to patients with consistency and fairness across the system. The noble Baroness, Lady Thornton, questioned whether this was a wise use of NHS money. I simply say to her that I do not see this as an either/or situation with regard to early diagnosis; we need to do both. We believe that, from 2012 onwards, the fund should be taken over by the NHS commissioning board, which will look at how it administers the fund locally. Although the noble Baroness, Lady Finlay, suggested that a postcode lottery was emerging in the cancer drugs fund, we do not have any evidence that that is the case. However, if she has that evidence, I should be very glad to hear about it.

Of course, treatment is not just about chemotherapy; radiotherapy is another key area. We are putting an extra £43 million into proton beam therapy treatment over the next four years, which will benefit up to 400 patients a year by the end of the spending review period. We want patients to benefit from the most sophisticated techniques, such as intensity-modulated radiotherapy. Some services may be more appropriately commissioned by the NHS commissioning board than by GP consortia—again, an area raised by the noble Baroness, Lady Finlay—where large populations are needed for planning and commissioning. Radiotherapy could well be an example of that. I say to the noble Lord, Lord Hameed, that improving cancer awareness and early diagnosis is likely to increase demand for radiotherapy. We need to ensure that capacity is in the right place and that the most effective use is made of existing capacity. We are planning ways in which to boost services so that we can offer radiotherapy to all those who would benefit from it.

Sadly, even with a focus on improving survival rates, some patients lose their battle against cancer. In these sad circumstances, we need to do everything that we can to improve the palliative and end-of-life support that they receive, improving pain relief and emotional support and joining up acute and community services so that more people can die at home rather than in hospital.

My noble friend Lady Hussein-Ece mentioned the recent medical paper on palliative care for patients with metastatic non-small-cell lung cancer. The Lung Cancer and Mesothelioma Advisory Group is currently reviewing this study and will consider its findings as part of its advice to the Government.

My noble friend Lord Howard, in his excellent speech, took us right to the heart of the issue of palliative end-of-life care. The Government recognise the valuable role that hospices play in delivering end-of-life services, in particular for cancer patients, and their good work of course extends far beyond the buildings that they occupy. We demonstrated our commitment to supporting hospices when the Treasury reconfirmed the £40 million capital grant scheme for hospices in the current year, originally announced as part of the end-of-life care strategy. We are concerned to improve the quality of end-of-life care for everyone, regardless of diagnosis, and we look forward to working with the hospice movement to achieve that aim.

My noble friend Lord Bridgeman also spoke on that theme. Too often, a person’s needs and those of their family and carers are not adequately assessed and addressed, including finding out a person’s preferences for the type of care that they would wish to receive and the setting or location in which they would wish to be cared for at the end of life. I agree with my noble friend that advanced care planning is a helpful way of addressing these issues. That was highlighted as a key area within the end-of-life strategy. We recognise the need to ensure that the care that people receive at the end of life is compassionate and appropriate and that it supports the exercise of choice. We confirmed our commitment to improving quality and choice in palliative and end-of-life care in the White Paper that we published in the summer. This includes the commitment to move towards a national choice offer, supporting people’s preferences about how to have a good death.

The noble Baroness, Lady Finlay, asked about cancer centres. The NHS commissioning board will provide leadership for quality improvement through commissioning. This will include setting commissioning guidelines on the basis of clinically approved quality standards developed with advice from the National Institute for Health and Clinical Excellence. However, we recognise the excellent work that is currently done by cancer centres and indeed by cancer networks.

The noble Baroness also asked about foundation trusts and the possibility of the inappropriate retention of patients in certain circumstances. Our long-term vision for the benefit of patients and taxpayers is that care will be provided by responsive autonomous providers who will be accountable to Monitor and the Care Quality Commission. Where specific control mechanisms are needed for providers, these should take effect through regulatory licensing and clinically led contracting rather than through hierarchical management by regions or the centre.

A number of noble Lords, including my noble friend Lord Bridgeman and the noble Baroness, Lady Emerton, whom it is a great pleasure to see back in her place, raised the issue of one-to-one support for cancer patients. We want every cancer patient to have access to appropriate care, support and information, but this must be affordable and sustainable for the NHS. We are reviewing the evidence to see whether one-to-one support can improve care for people after a diagnosis of cancer, as well as ensure the efficient use of NHS resources. We are working with Macmillan Cancer Support to understand the costs and potential benefits of one-to-one support. The results of that work will be made available as part of the review of the cancer reform strategy later this winter.

I return to the powerful speech of the noble Lord, Lord Kinnock, on prostate cancer. He was right in so much of what he said. Survival rates for prostate cancer in England still lag behind those of comparable countries in Europe. Late diagnosis is likely to be a significant contributor and, again, the cancer reform strategy will be looking at what we need to do in this area. I should be delighted to have a one-to-one conversation with the noble Lord if he would find that helpful. I simply add that the prostate cancer risk management programme is in place and that the intention behind it, as I am sure he is aware, is that men without symptoms of prostate cancer should be able to have a PSA test free on the NHS.

My noble friend Lord Clement-Jones raised the important topic of lung cancer. Once again, our survival rates for lung cancer are low compared with those in Europe. We are committed to improving outcomes for those with lung cancer, which is one reason why we have asked the national cancer director, Professor Sir Mike Richards, to lead the review of the cancer reform strategy. I am pleased to learn that the British Lung Foundation contributed to the consultation on the review. We will be publishing in the strategy a future direction for lung cancer care. We know that early surgical intervention can be critical for lung cancer patients, but that is often not possible if the cancer is too far advanced. We have to look carefully at why there is variation, although I think that the low rate of lung cancer surgery is likely to be due in part to late diagnosis.

My noble friend also spoke about ovarian cancer, to which many of the same messages apply. Our public awareness campaign is focusing on the three biggest killers, but the Department of Health has worked with ovarian cancer charities to develop the key messages on the signs and symptoms of ovarian cancer.

The noble Lord, Lord Kakkar, raised the important issue of risk assessment for thrombosis during treatment in a range of settings. I can tell him that that will be an important issue for NICE to consider as it develops quality standards for cancer care.

The noble Baroness, Lady Emerton, powerfully emphasised the importance of chemotherapy at home. The NHS operating framework for this year confirmed the direction of travel towards having more services closer to home. Where there are skilled and experienced staff, chemotherapy in community settings can help to meet increasing demand and provide greater choice for patients.

The noble Baronesses, Lady Finlay and Lady Thornton, asked about our tobacco policy. At the moment, we are considering options for the display of tobacco in shops. We seek to balance public health priorities with reducing burdens on business. Those matters are under consideration by Ministers. It is probably premature for me to discuss the details of the options that we are considering, but an announcement will be made in due course.

I am aware that time has run out. Suffice it to say that I believe that this has been an excellent debate. I undertake to write to those noble Lords whose questions I have not been able to cover. I think that we all agree that advances in medical science mean that cancer is no longer the death sentence that it once was. That is a cause for satisfaction and for congratulating those cancer specialists in the NHS who do such wonderful work. We want to build on those achievements to take cancer care to new heights, to ensure that those beginning treatment for cancer do so with confidence and hope.