Vol. 735 Tuesday No. 276 6 March 2012

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Railways: Great Western Franchise Universities: Anti-Semitism Universities: European Languages Gypsies and Travellers Business of the House Motion on Standing Orders Schools (Specification and Disposal of Articles) Regulations 2012 Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012 Children Act 2004 Information Database (England) (Revocation) Regulations 2012 Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2012 Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012 Occupational and Personal Pension Schemes (Automatic Enrolment) (Amendment) Regulations 2012 Automatic Enrolment (Offshore Employment) Order 2012 Motions to Refer to Grand Committee Supply and Appropriation (Anticipation and Adjustments) Bill Second Reading (and remaining stages) Health and Social Care Bill Report (5th Day) Written Statements Written Answers For column numbers see back page

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to be determined, but they will reflect the franchise House of Lords objectives that, for clarity, are managing change, providing appropriate capacity, ensuring that the passenger Tuesday, 6 March 2012. experience continues to improve, operational and environmental performance, and delivering efficiencies. 2.30 pm

Prayers—read by the Lord Bishop of Exeter. The Lord Bishop of Exeter: My Lords, the Great Western franchise is one of the most complex in the country, with a clear demarcation between the London- Railways: Great Western Franchise Swansea axis and the London-Penzance axis. It is vital Question that fare balance is maintained in the specification to reflect the needs of the whole community. However, in 2.36 pm the West Country, there are very real concerns about whether that will be the case. In particular, there is a Asked by Lord Berkeley high degree of uncertainty about the integrity of the franchise specification. Can the Minister offer a clear To ask Her Majesty’s Government whether the statement for the Department of Transport about new Great Western rail franchise specification for whether the specification will be a guidance document trains between Bath, Bristol, Newport and Cardiff, only for bidders or whether it will be regarded as the and intermediate stations, will take into account default position? Does he recognise that the danger is recent increases in population and demand. that bidders will load the premium payment for the franchise at the expense of essential elements within Earl Attlee: My Lords, recent increases in population the specification and that the south-west peninsula and demand will indeed be taken into account. In could be the loser? drawing up the objectives for the new Great Western franchise, emphasis has been placed on the need to provide appropriate capacity for passengers, within Earl Attlee: My Lords, the right reverend Prelate the constraints of affordability and available infrastructure. asked several extremely complicated questions, and I We are looking closely at recent growth trends and think it would be better if I wrote to him. However, forecast demand as part of the specification process. I have confidence in the whole franchising process. We are determined to strike the right balance between the needs of all stakeholders. As I said in my response to Lord Berkeley: I am grateful to the Minister for that the Question asked by the noble Lord, Lord Berkeley, Answer. Presumably he will have read—because I sent there is a conflict between stakeholders that needs to it to him—a report of the West of England Partnership’s be resolved. Joint Transport Executive Committee, which the committee will in fact discuss tomorrow, proposing a greater Bristol-area metro network with much more Lord Brooke of Alverthorpe: My Lords, I will keep frequent regional trains and some extra new stations. my question brief and simple. Will the Minister confirm Will he ensure that that kind of specification is included that the present rolling stock on the line is quite in the tender specification for the new franchise? inadequate, and that it would be totally unreasonable to expect it to continue to be used until electrification Earl Attlee: My Lords, the noble Lord raises an in 2018? In the circumstances, and with reference to extremely important point. The Government’s objective his first Answer, will he confirm to the people in that is to strike an equitable balance of stakeholder interests: part of the country who use the line that the franchise the fare payer, the taxpayer, the long-distance business will invite new rolling stock? traveller and the commuter. These stakeholders are obviously in conflict. Because of this, we urge our Earl Attlee: My Lords, first, we need to be careful friends in the west and south-west of England to reach about being too specific about which rolling stock a consensus on their priorities so that we can use our should be used. To do so would compromise the resources to progress them to best effect. negotiations between the train operating company and the rolling stock company. However, a new fleet of Lord Bradshaw: My Lords, the last Great Western IEP trains is expected to be provided for the franchise franchise was almost a disaster from the day it was let. for InterCity services. This project was initiated by the It has had to be rescued both with more rolling stock previous Administration. The new operator is expected and more money. Will the Minister give an undertaking to take responsibility for the provision of other rolling that, whichever bids are received for the new franchise, stock on the franchise. they are robust bids and, as it will be a 15-year franchise, that they will include quite a contribution of new ideas, new rolling stock and new infrastructure? Lord Cormack: If the Government attach such importance to value for money, why are they persisting with HS2? Earl Attlee: My Lords, my noble friend makes important points. Although value for money is high up on the agenda, given the challenges set by the Earl Attlee: My Lords, HS2 is somewhat wide of McNulty review, the exact evaluation criteria are yet the Question on the Order Paper. 1661 Railways: Great Western Franchise[LORDS] Universities: Anti-Semitism 1662

Baroness Corston: My Lords, in his Answer to my very strong legislative framework and practical guidance noble friend Lord Berkeley, the Minister referred to to provide protection and deal with any anti-Semitic conflicts in the greater Bristol and south-west England incident. We expect universities to act swiftly to investigate area. Will he confirm whether the department is looking and address any anti-Semitic incidents reported to kindly on the proposal for the greater Bristol metro? them. We have seen a fall in the number of incidents in higher education, from 44 in 2010 to 27 in 2011, Earl Attlee: My Lords, the document that the noble according the Community Security Trust, but I accept Lord, Lord Berkeley, referred to covers the Bristol that that is still too many and we must not be complacent metro. It would be very helpful to have a response in our resolve. from local stakeholders on how they want the balance to be struck between the needs of the metro system Baroness Deech: I thank the Minister for her Answer. and those of longer-distance travellers. However, I wonder if she is aware of just how often these anti-Semitic incidents occur, reported or not. Baroness Randerson: Will the Minister give us an Sometimes it is other students’ Nazi-themed activities, assurance that the franchise will be let in a manner coupled with assaults, and sometimes it is hate speakers that is compatible with the establishment of a south who are invited on to campuses which indeed they Wales valleys metro—a project on which there is a target. Recent events include speakers who blame 9/11 considerable degree of consensus and unanimity in on Israel or who equate all Jews with Nazis, and worse. the area? Universities tend to take refuge behind the doctrine of freedom of speech and do very little. They do not Earl Attlee: My Lords, I am sure that officials take seem to realise the limits of freedom of speech as all relevant considerations into account, but I cannot constrained by recent legislation largely from the previous comment on my noble friend’s particular point. Labour Government. The Public Order Act—

Lord Davies of Oldham: My Lords, no doubt rail Noble Lords: Question! passengers will look with some hope—which we expect to be fulfilled—for the improvement of a service that has been the subject of considerable criticism and Baroness Deech: Will the Minister ensure that dismay among passengers right along the line. Will the universities bring up to date their codes of practice on Minister confirm that the terms of the franchise will visiting speakers to take account of legislation and allow fares to be increased by 8 per cent in 2013-14, make sure that they apply to student unions as well? and possibly thereafter? Baroness Verma: My Lords, the Education (No. 2) Earl Attlee: My Lords, I am not aware of the noble Act 1986 requires university governing bodies to ensure Lord’s particular point, but we cannot operate a railway as far as possible and practicable that freedom of system for free; it has to be paid for, and paid for speech within the law is secured for members, students, by fares. employees and visiting speakers. Institutions have to issue and keep updated a code of practice on the Lord West of Spithead: My Lords, on this Cornish organisation of meetings and other activities taking patron saint’s day, will the Minister support the place on their premises. These codes often include continuance of the overnight sleeper service to Cornwall? the right to refuse permission for an event. However, universities have to balance freedom of speech with Earl Attlee: My Lords, unfortunately I omitted to their legal obligations, for instance in the Equality Act ask about the overnight sleeper service to Cornwall. 2010. Only institutions themselves can make decisions However, some of my ministerial colleagues have great about speakers. No other body could make judgments affection for that service. about each and every case. They are subject to the courts in this, as with other laws. The 1986 Act does not apply directly to student unions but indirectly Universities: Anti-Semitism through the universities’ codes of practice. Question Lord Boswell of Aynho: My Lords— 2.44 pm Asked by Baroness Deech Lord Campbell-Savours: My Lords— To ask Her Majesty’s Government whether they will clarify the laws applying to universities and Lord Janner of Braunstone: My Lords— student unions when an anti-Semitic incident has taken place on campus. Lord Palmer of Childs Hill: My Lords— Baroness Verma: My Lords, the law is clear: there is absolutely no place in our universities for racism, The Chancellor of the Duchy of Lancaster (Lord including anti-Semitism. As independent bodies, Strathclyde): My Lords, we really cannot all stand up universities and student unions are responsible for at the same time. I think that it is the turn of the undertaking their own legal obligations. They have the Labour Party, and I rather wish that one of the two tools to tackle anti-Semitism. They have access to a noble Lords would give way to the other. 1663 Universities: Anti-Semitism[6 MARCH 2012] Universities: European Languages 1664

Lord Janner of Braunstone: My Lords, the Minister worryingly, 42 per cent of Jewish students had witnessed will be aware that last year on United Kingdom campuses or been subjected to anti-Semitism in the seven months there were 27 reports of anti-Semitic incidents and up to the survey. Will my noble friend the Minister attacks on students and academics. Does she agree confirm that Her Majesty’s Government consider these that the time must now have come for the Government figures to be a real cause for concern, and indicate to create and require a national approach for all what steps they will take to address this issue? Can the universities to deal with anti-Semitic and all other Minister outline the approach that the Government racist attacks? are taking to work with universities, the academic community and the Jewish community to solve what is Baroness Verma: My Lords, I can only repeat that a real problem, despite what other Members of this the Government cannot tell universities and higher noble House have said? education institutions who they can or cannot invite. However, universities have to follow very strict codes Baroness Verma: My Lords, I am sure that my of practice. We are always working with universities, colleagues in the Box have taken note of my noble and wherever there are incidents and we hear of them friend’s concerns and the figures that he has raised we try to ensure that universities have the tools in today. The Government take all these issues very place to counter those sorts of vicious speakers and seriously and I reassure the House that wherever we their contributions. find that we can intervene, we surely do.

Lord Boswell of Aynho: My Lords, given that the Universities: European Languages Minister has already confirmed that because universities Question and colleges are in receipt of very substantial amounts of public funds, they are bound by the public sector 2.52 pm equality duty—which is an important factor that they should bear in mind and take seriously—will she also, Asked by Baroness Coussins on the positive side, celebrate the work of the Equality Challenge Unit and of others who are working positively To ask Her Majesty’s Government what is their towards ensuring that universities are, as they always response to the 2012 university applications figures should be, places of enlightenment, and not an from the Universities and Colleges Admissions Service opportunity for the expression of prejudice? (UCAS) showing that applications for courses in European languages are down by 11.2 per cent and non-European languages by 21.5 per cent compared Baroness Verma: I absolutely agree with my noble to the previous year. friend. We see universities as places not only of learning but of great understanding. All the organisations that Baroness Verma: My Lords, 2011 was a record year my noble friend mentioned are at the heart of those in the overall number of people applying for higher tasks of moving forward. However, we take the concerns education places. However, we cannot make a direct very seriously and we understand why the noble Baroness comparison as a reduction this year could be considered has posed this Question and the noble Lord, Lord inevitable, with applications for language courses coming Janner, has raised it. We are working to ensure that all from a reducing population of 18 year-olds. We estimate universities stand up for any students who feel under that there will still be many more applications for threat, regardless of their race, religion or background. higher education language courses than places available. The previous Government marginalised languages in Lord Campbell-Savours: My Lords, is it not important schools. This Government are stimulating language that we draw a very clear distinction between the study, and an increasing number of young people are actions of anti-Semites and the actions of those who now studying languages. feel passionately about the actions of the state of Israel in the West Bank of the Jordan and in the Gaza Baroness Coussins: My Lords, does the Minister Strip? accept that one very likely reason for the decline in numbers is the additional cost of a four-year degree Baroness Verma: My Lords, I do not want to enter that includes a year abroad, especially if that year is into another debate, and that is a separate debate outside Europe and therefore does not qualify for any although it is one that we must not shy away from. At help under the ERASMUS scheme? What are the the same time, we do not want to lose the greatness of Government going to do to reduce financial disincentives our universities, which allow students to hear contributions for people considering a four-year degree course, that are often very vile but then also allow them to particularly when employers are saying how much make a judgment as to their response. they value the language and other skills that are acquired during the year abroad? Lord Palmer of Childs Hill: My Lords, my noble friend the Minister drew attention to the statistics up Baroness Verma: My Lords, the noble Baroness has to 2010. Based on the October 2011 report from the greater expertise in this area than I do, but I reassure National Jewish Student Survey, 21 per cent of Jewish her that the ERASMUS fee waiver programme will students felt very worried about anti-Semitism at continue until 2014 and Ministers are considering the university; 38 per cent of Jewish students felt worried report by Professor Riordan on how we are going to about anti-Israel sentiment at university; and, more fund after 2014. However, students will continue to 1665 Universities: European Languages[LORDS] Gypsies and Travellers 1666

[BARONESS VERMA] Baroness Verma: My noble friend is absolutely right. enjoy the ERASMUS fee waiver for studying outside She will be reassured to know that we have put £14 million Great Britain in European countries. For study abroad on one side to ensure that the vulnerable subjects, such in non-European countries, students get a percentage as science, technology, engineering and languages, get of fee waivers from their higher education institutions, fully funded support. We recognise that if we are to be and that is often up to the higher education institutions a good globally viable trading nation we will have to themselves. They recognise the value of it and therefore have all these skills plus more to be able to do that. are more inclined to work with students to see what Today, Brazil is a prime example of an economy that they can do to ensure that those students are able to has gone forward. We must learn from the lessons take the benefit of that one year abroad. around us so that we do not lag behind.

Lord Anderson of Swansea: My Lords, the Minister Lord Quirk: My Lords, can the Minister explain will be aware that last year, of the 306 graduate why it is that in the bulk of schools the popularity and entrants into European Union institutions, only seven take-up of foreign languages is very bad but that in were from the UK. Does she agree that this must be private schools and grammar schools it remains relatively due in part to the decline in language teaching? Does buoyant? Is there a lesson here in some way for the she further agree that it cannot be in our national Government? interest that there is such a decline and that the future influence of this country in European Union institutions Baroness Verma: My Lords, the only lesson I should is likely to decline as a result of this? like to reassure the noble Lord on is that my right honourable friend recognises that language learning in primary schools across our country has declined over Baroness Verma: That is why the Government have the years and that we need to make sure that every prioritised language courses at university and in schools. child has the access and opportunity to learn a language The noble Lord will be aware that we have placed this, that gives them the benefit and the advantage of being with HEFCE funding, under the vulnerable subjects able to function economically, culturally and happily in order that it will get the full grant. My right honourable in the world around them. friend Michael Gove has taken the issue very seriously. He has made sure that language teaching is part of the English baccalaureate and that young children are Gypsies and Travellers exposed to the joy of learning a language. As those of Question us with business backgrounds know, the importance of trading globally will be on the basis that we have 2.59 pm the experience and knowledge of languages. Asked by Lord Avebury

The Lord Bishop of Chichester: My Lords, can the To ask Her Majesty’s Government what is their Minister confirm that Her Majesty’s Government are response to the communication from the Commissioner concerned about the cultural as well as the economic for Human Rights of the Council of Europe on the disadvantage our country is likely to suffer as a result adequacy of the provision of accommodation for of the decline in language skills? As the UCAS statistics Gypsies and Travellers in the United Kingdom. indicate a disproportionate fall in the number of applicants from people from deprived areas, what are Her Majesty’s Earl Attlee: My Lords, my right honourable friend Government doing or going to do in order to minimise the Secretary of State for Communities and Local the impact of tuition fees and a fear of considerable Government replied to the letter from the Commissioner debt, specifically on children from those areas? for Human Rights of the Council of Europe on 27 February. A copy was placed on the Council of Europe’s website on 1 March. The Secretary of State’s Baroness Verma: My Lords, the right reverend Prelate letter gave details of the measures the Government are is absolutely right in introducing the value of a cultural taking to improve the situation of Travellers, particularly understanding through language learning. The in relation to the provision of sites. Government agree with that. As he will know, we have also made sure that, through our own reforms of the Lord Avebury: My Lords, my noble friend may be fee system, more people from disadvantaged backgrounds aware that local authorities are intending to provide will be able to come into higher education simply planning permission for less than half of the because they will not be expected to put any moneys in accommodation that was shown to be necessary in the fees up front. We are very much focused on widening comprehensive assessment of need conducted during participation. I for one am very keen to see children the previous Parliament. First, what immediate action from poorer backgrounds and BME communities make are the Government going to take to increase the that step forward into higher education. number of sites in order to match their legal obligation as identified by the high commissioner to provide Baroness Brinton: My Lords, do the Government adequate housing for Gypsies and Travellers? Secondly, still support the principle of strategic, important and have any of the local authorities and social housing vulnerable subjects which are STEM and modern agencies to which the Government recently granted a languages? What highly specific advice will be given to total of £47 million to build new sites identified the schools and universities to prioritise modern languages, land they intend to use for this purpose, let alone given their importance in our economy today? applied for planning permission on it? 1667 Gypsies and Travellers[6 MARCH 2012] Business of the House 1668

Earl Attlee: My Lords, my noble friend’s question Earl Attlee: My Lords, I would be very surprised if on whether local authorities have identified the land the appropriate Minister does not have discussions suitable for pitches is a matter for them. If I have any with the relevant organisations. further information that I can give him, of course I will do so. In response to the most important question Lord Elystan-Morgan: My Lords, is the Minister put by my noble friend, the new homes bonus will aware that about a quarter of a century ago a very match fund the additional council tax raised for new distinguished High Court judge, the late Mr Justice homes, including Traveller pitches, for the next six years. Peter Pain, when hearing an application from a local Traveller pitches are usually rated as band A so at authority in south Wales for an injunction to clear present local authorities will get a bonus of £959 per Gypsies from a lay-by said, “I will not grant this year for six years for each new pitch. Traveller pitches injunction because an injunction is an equitable remedy. owned by local authorities and housing associations To claim an equitable remedy you must be equitable. I will attract an additional £350 per year enhanced will only grant the injunction to those local authorities bonus, like other affordable homes. which can show that they have taken seriously their statutory obligations in relation to Gypsies”.? Baroness Whitaker: My Lords, one of the key points made by Dr Hammarberg in his letter to Mr Pickles Earl Attlee: My Lords, the noble Lord makes an was about the “significant hurdle” concerning the important and interesting point. It is much easier to requirement that for planning permission, the applicant have an unauthorised encampment removed if the has to establish “Gypsy status”and demonstrate particular local authority has already made appropriate provision. “working patterns”. Will the Government now dissociate the granting of planning permission from these Lord McKenzie of Luton: My Lords, as the Minister inappropriate and restrictive criteria? has acknowledged, there is a shortage of adequate permanent and transit sites for Gypsies and Travellers, Earl Attlee: My Lords, the Government will publish but, at the same time, the Government are dismantling the national planning policy framework by the end of regional spatial strategies, one of the objectives of this month, and shortly we will announce our conclusions which was to set targets concerning the number of resulting from all the consultations we have held related pitches that each local authority should provide. What to Travellers. evidence do the Government have which suggests that the replacement duty to co-operate will better encourage local authorities to meet their own and their neighbours’ Lord Laming: My Lords, does the Minister agree responsibilities? that the Gypsy way of life is extremely hard and that the best hope for them and, indeed, for society as a Earl Attlee: My Lords, as I have said, we have not whole is the provision of sufficient official pitches so seen the full government policy because that will be that the children—the next generation—can receive a announced shortly. The previous Government’s model proper education and thereby have an alternative lifestyle of top-down pitch targets under regional strategies available to them? has not delivered. Between 2000 and 2010, the number of caravans on unauthorised developments increased Earl Attlee: My Lords, I agree entirely with the noble from 728 to 3,895. Lord’s point. Baroness Sharples: If they are Travellers, why do they Lord Hamilton of Epsom: Does my noble friend not not travel rather than getting settled in one spot? agree that there is a serious problem here in that as local authorities provide pitches for Gypsies and Travellers, Earl Attlee: My Lords, some Travellers are static, the number of Gypsies and Travellers increases, so we partly because there are not the opportunities around are always behind the curve? Is there not a problem the country and their patterns of work are changing. here if we go on providing pitches and the demand It would be better in those circumstances if they continues to increase? remained static so that their children could be properly educated, as suggested by the noble Lord, Lord Laming. Earl Attlee: My Lords, there are some who think that; it may be the case or it may not. Our duty is to Business of the House meet the need and we are doing that by means of the Motion on Standing Orders new homes bonus and other incentives to deal with the problem identified by my noble friend. 3.06 pm Moved by Lord Strathclyde The Lord Bishop of Exeter: My Lords, would it not be helpful for the Secretary of State to meet directly That Standing Order 40(1) (Arrangement of the with representatives of the Gypsy and Traveller community order paper) be dispensed with on Tuesday 13 March to discuss with them the issues raised by the Commissioner, to enable proceedings on the Health and Social and together with them develop measures to deal with Care Bill to take place before Oral Questions. those problems? Further, can he say whether the Secretary of State does have such plans? Motion agreed. 1669 Schools Regulations 2012[LORDS] Health and Social Care Bill 1670

Schools (Specification and Disposal of 3.08 pm Articles) Regulations 2012 Amendment 163AA Alternative Provision Academies Moved by Lord Warner (Consequential Amendments to Acts) 163AA: Before Clause 60, insert the following new Clause— (England) Order 2012 “PART 2A Standards of adult social care Secretary of State duty as to the standards of adult social care (1) The Secretary of State shall have a duty to secure the Children Act 2004 Information Database improvement in the quality of adult social care services through (England) (Revocation) Regulations 2012 local social services authorities and qualified service providers registered with the Care Quality Commission. (2) In discharging this duty, the Secretary of State must Pneumoconiosis etc. (Workers’ ensure— (a) the establishment of a fair and resilient partnership Compensation) (Payment of Claims) between individuals and the state for funding adult (Amendment) Regulations 2012 social care that— (i) secures adequate funding to deliver safe and sustainable services, Mesothelioma Lump Sum Payments (ii) provides access to these services for those of limited (Conditions and Amounts) (Amendment) means, (iii) caps the financial liability to pay for services for Regulations 2012 those with unusually high lifetime care costs, (iv) minimises the impact on the demand for health services, Occupational and Personal Pension (b) that the assessment of the needs of individuals and their carers for services is undertaken on the basis of published Schemes (Automatic Enrolment) criteria for eligibility to and charging for services that (Amendment) Regulations 2012 applies consistently throughout England, (c) that continuing efforts are made to reduce barriers to the delivery of integrated health and adult social care to Automatic Enrolment (Offshore individuals and through the conduct of commissioners and providers of both health and social care services. Employment) Order 2012 (3) The Secretary of State may, after appropriate consultations, Motions to Refer to Grand Committee make regulations governing the discharge of his duties under subsections (1) and (2), subject to affirmative resolutions in both Moved by Lord Strathclyde Houses of Parliament.” That the draft orders and regulations be referred to a Grand Committee. Lord Warner: My Lords, we return to the issue of adult social care, which is a good occasion for seeing Motion agreed. a massive emptying of the Chamber. In very simple terms, the amendment is an attempt to get the Bill to live up to its title and become a genuine health and Supply and Appropriation (Anticipation social care Bill. and Adjustments) Bill Subsection (1) of the proposed new clause would Second Reading (and remaining stages) place a clear duty on the Secretary of State to secure improvement in the quality of adult social care through the offices of local government and qualified service 3.07 pm providers. It would make the Health Secretary pay Moved by Lord Sassoon proper attention to adult social care in a similar way to the way in which he is under a duty to ensure a That the Bill be read a second time. comprehensive health service under other provisions in the legislation. Bill read a second time. Committee negatived. Standing Subsection (2) of the proposed new clause identifies Order 46 having been dispensed with, the Bill was read a the key elements that the Secretary of State must pay third time and passed. attention to in discharging the duty in subsection (1). These are: adequate funding for safe and sustainable services; access to services for those of limited means; a cap on the financial liability of those with high Health and Social Care Bill lifetime care costs; and minimising the impact on the Report (5th Day) demand for health services. It also introduces national eligibility criteria for services across England and standard Relevant documents: 18th and 22nd Reports from charging policies. That was argued for overwhelmingly the Constitution Committee. in the evidence to the Dilnot commission, of which 1671 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1672

I was a member. In subsection (2)(c), a further push is back at Third Reading with something equivalent, given to the integration of health and social care in I will not press matters today. If he is not, we owe it to line with the recent report on social care by the Health the outside world, especially the stakeholders lobbying Select Committee in the Commons. Parliament today, to show where people stand on tackling the crisis in adult social care and protecting What is to argue against in these provisions? Today, the many vulnerable people affected by that crisis. we see a lobby of Parliament by the Care and Support I beg to move. Alliance to secure action on delivering a more sustainable adult social care system instead of the underfunded and unsustainable system that we have now. This 3.15 pm alliance is overwhelmingly in favour of implementing Baroness Pitkeathley: My Lords, I was delighted to the framework in the Dilnot commission report in add my name to this important amendment which order to deliver a resilient and sustainable financial builds on several amendments we have discussed in framework for adult social care. There is legitimate your Lordships’ House with regard to the integration room for debate on the precise details of that framework, of health and social care. The central point of the especially the level of the cap proposed by Dilnot. I for amendment is to place a duty on the Secretary of State one would accept that we should start with a higher to secure improvement in the quality of social care cap than the commission’s preferred option of £35,000, services provided by local authorities. It goes on to set but there is nothing in this amendment that limits the out the means of doing so. Government’s freedom of manoeuvre on these details or on the speed of implementation. Nor does it frustrate These proposals are based on those of the Dilnot the achievement of cross-party agreement in the cross- commission, of which my noble friend Lord Warner party talks now taking place. However, I see little was such a distinguished member and about which evidence of those talks progressing very fast, with an there is such consensus among all those who work in isolated and politically wounded Health Secretary lacking or are in receipt of social care. If only the coalition any Whitehall-wide support, especially from the Government had managed to achieve such a consensus Chancellor, for doing a deal with the Opposition. about all the proposals in this Bill, we would have saved a lot of time and be a lot more content. There is The amendment would get the Government out of consensus around the proposals and everybody a jam. They can implement Dilnot and anything else understands what the social care system is in need of. that they want to propose in their forthcoming White As we have heard from my noble friend, the system is Paper without a new Bill next Session. Subsection (3) starved of cash, failing to meet the volume of need, of the amendment would give broad powers to use unfair—a lottery—and, confusing and difficult to find affirmative regulations after appropriate consultation. your way around, especially if you are frail, elderly I can see that after the failure of the Government to and confused. provide a convincing political narrative on this current Bill, the Prime Minister might not want to launch The existing consensus is that the future funding another Bill from Richmond House in the next Session. of social care has to be based on a combination of Therefore, ever sensitive to these political considerations, individual and state responsibility and contribution, I offer him an exit strategy without neglecting the and that we must achieve a lasting settlement. We have serious needs of adult social care and the people who mentioned many times before in your Lordships’ House need those services. that the Health and Social Care Bill fails to address the most pressing of all health problems: how to deliver We all agree that the funding of adult social care is affordable and effective social care for our growing in a parlous state; there is broad stakeholder support elderly population—a view endorsed, I remind your for the Dilnot-proposed framework. We all recognise Lordships, by the Health Select Committee in a recent the dependence of the NHS on a robust adult social report. care system, without which the NHS will surely fail to It is extremely worrying that rumours are circulating deliver the efficiency gains required of it. We all want that the White Paper on social care, responding to to see improved integration of health and social care, both the Dilnot proposals and the Law Commission although the Government’s opposition to my amendment proposals about legislative reform in this area, is to be on integration last week was disappointing, especially delayed. This would be a huge disappointment as well the conduct of 17 Liberal Democrats who voted against as a missed opportunity. Moreover, it would renege on it. However, I say to Lib Dem colleagues that today is the commitment given by the Minister for social care your chance to make amends. If you want to go to in another place when he said only four months ago your spring conference trumpeting your success in that, saving the NHS, you will support the amendment. “social care has languished and rested in the ‘too-difficult-to-do’ You had the courage to insert in the coalition agreement box for far too long. We are the Government who are committed; the establishment of an independent commission. I we see the urgency and the need”.—[Official Report, Commons, pay great tribute to you for doing that. Now have the 10/11/11; col. 181WH.] courage to put into this Health and Social Care Bill I hope that the Minister will today repeat that commitment the means to implement the adult social care changes in response to this amendment. that are so badly needed. We should remember, too, the advantages which I have low expectations of the Minister being willing would be delivered by accepting this approach. We to accept the amendment because I suspect that his would spend existing resources—which everybody agrees hands are tied by those in a higher pay grade. However, are short—better. It would improve integration of if he is willing to take this amendment away and come health and social care systems. When people’s need for 1673 Health and Social Care Bill[LORDS] Health and Social Care Bill 1674

[BARONESS PITKEATHLEY] bits of legislation over and over—and this amendment social care is not met, they turn to the NHS—resulting does it all over again. Let us not make the mistake of in increased numbers of emergency admissions or supporting this amendment. I am very sympathetic to delayed discharges. The inconsistency between fully what the noble Lord wants to do, and we all feel very funded NHS care and means-tested social care hampers impatient about it, but let us have a proper Bill and delivery of an integrated care system. Recent statistics proper debates and get it right for the next generation. from the Department of Health show an 11 per cent Frankly, it is our generation and the next one that will rise already in the number of hospital bed days lost benefit from a proper social care reform Bill. Let us to so-called bed blocking, so that costs have risen get it right and not do it this way. extremely fast. In addition, the rights and responsibilities of individuals Baroness Barker: The noble Lord, Lord Warner, and agencies would be clear to the public if the asked what was to disagree with—what was not to Government accept this approach. If people were like—and the answer is nothing at all. However, that is clear about their future personal liability, they could not to say that this is not deficient and there are not an plan how they would meet care costs up to the level awful lot of questions that it begs. of the cap, wherever that were placed. We would also stimulate the care market to provide more choice for The noble Lord is right that my party, along with families and incentives for business. The Dilnot report others, has agreed with the Law Commission review and its proposals has been called a once-in-a-lifetime and supported the efforts to see the Dilnot commission opportunity. We cannot and should not miss that brought into law. However, he will know as well as I do opportunity. I support the amendment. that the history of social care law reform is littered with failed attempts to deal with one of the biggest issues that our society faces—the Royal Commission Lord Skelmersdale: My Lords, the House seems to on long-term care. The Wanless report was largely have gone remarkably silent after those two introductory about the NHS, but a significant chunk of it was supporters of this particular amendment. As some of about the need to reform social care to drive down your Lordships will remember, when I returned from future demands on the health service. Noble Lords Northern Ireland as the ex-Minister responsible for have been critical of this Bill, and many of their health and social services, I came as a great fan of criticisms are justified, but they overstate the extent to combined health and social services. Yet I discovered which the latter parts of the Bill, with the placing of in my experience there that it would never, ever work public health into local government and the creation unless you had one organisation in total and utter of health and well-being boards, is a very good attempt control. This may seem like a Second Reading speech, to deal with that agenda, decrease health inequalities but it is not intended to be. The Secretary of State and raise levels of preventive health promotion. I, too, mentioned in the amendment means any Secretary of think that this is an inadequate response, particularly State, and currently we have two Secretaries of State. to the Law Commission report, which was a good and That is why the notable ambitions of this amendment— detailed piece of work. It deserves extensive scrutiny and they are notable—will always fail. Therefore, I and to be brought forward in law in a way that is far encourage my noble friend, until a higher authority more comprehensive than this. than himself, senior as he is, gives the imprimatur to take social services away from local government, to I will not have a go at the noble Lord, Lord Warner, resist this amendment. for keeping the issue on the agenda, but I say to him that the Care Services Minister, Paul Burstow, has made it clear throughout his tenure that he is doing all Baroness Murphy: My Lords, I think that the noble in his power to keep social care to the fore. I come Lord, Lord Warner, is having us on. There is an urgent back to the £2 billion that was invested in social care at need to press the Government on bringing forward its the beginning of the Government’s term. The Government White Paper on social care reform, which is the pressing are mindful of the need to deal with this, not least economic and social care issue of our day—more because the noble Baroness, Lady Murphy, is right to important than this Bill. But we have to get it right. say that, as she often reminds this House, no one has a We are expecting a White Paper, and there are many social care need unless they have a healthcare need—the arguments to be had about the recommendations from two things are indivisible—and if the Bill is about the Dilnot commission, although there is quite a consensus anything, it is about tackling the health needs of the of opinion, and about the right and wrong and who population as a whole over time. will pay and when. I hope that we can have those debates in this House. But this issue requires a full Bill. This I do not disagree with the noble Lord, Lord Warner, amendment gives a new Bill inside the Health and but I do not think that this is quite the way to go Social Care Bill on Report, and I do not really think forward. I hope that all Members of this House will that it will fly. I can imagine what the noble Lord, continue to uphold the consensus that there has been Lord Warner, would have done if it had been proposed over the past two years behind the work of the Law when he was Health Minister. He would have given it Commission and the Dilnot report to bring this issue very short shrift—and I urge the Government to do so forward in a way that means that it can be determined again. We need a proper recommendation and discussion successfully once and for all. in the White Paper. I also remind the House that last year the Law Lord Campbell of Alloway: My Lords, I would like Commission came out with a report on adult care to raise the matter of the process of putting in statute social services that said that we had had endless piecemeal what in the ordinary course of events should be put in 1675 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1676 subordinate legislation by regulations or whatever. If which is necessary to maximise the return on the social you read the amendment carefully, it is a very wide and financial investment in the care of a significant command involving four assessments of individuals’ proportion of our population. I certainly commend it needs. I am not at all criticising what is sought, but I to the House. ask for it to be considered that the amendment would open a large gateway of legal challenge to the Secretary Lord Patel: My Lords, I do not know whether the of State that would not exist if this were not put into Bill is adequate for its intention. I did not think for statute. This question is concerned with finance at a one minute that the noble Lord, Lord Warner, was time when finance need not be referred to again. trying to insert a Bill into a Bill; he is trying merely to highlight the need for some commitment to social Lord Beecham: My Lords, I congratulate my noble care in a Bill that has “health and social care” in its friend on bringing forward the amendment, to which Title but not much about social care in it. Successive there seem to be two limbs. The first involves finance Governments have talked about integrated health and and looks forward—indeed, arguably it paves the way—to social care but have failed to achieve it. For the first the Dilnot report or some version of it being the basis time, we have a Bill with the Title “Health and Social for the complex issue of catering for the needs, present Care”, but with no mention at all of social care. To and future, of a significant proportion of the population. indicate some commitment to its delivery, if not now The second limb is directed more towards the services then at a later stage, would have been adequate. Delivering that will be required, which we would all agree need to integrated health and social care should have the same be better co-ordinated than they have been. In that commitment to it as delivering improved waiting times respect, I have a certain sense of déjà vu. At the time for acute care. of the 1973 reorganisation, I was chairman of my city We tried to get commissioning as a way of integrating council’s social services committee when various services health and social care. It would have been a better that were directed to run adult social care were transferred way forward, but unfortunately that amendment was to the health service—chiropody, bath attendant services narrowly defeated. This amendment asks only that the and the like. At that time, the area health authority, as Government commit to making continuous efforts it then was, found itself in difficulties and unable to to reduce barriers to integrated health and social care. fund the continuation of the service, so my authority I do not think that it is inadequate or that it inserts a contributed significantly financially to preserve the new Bill into the Bill. very services that we had handed over. That illustrated clearly the need for a much better relationship between The Parliamentary Under-Secretary of State, Department the two sides that, a generation later, has still to be of Health (Earl Howe): My Lords, this has been a achieved. My noble friend’s amendment would certainly thoughtful debate. At the outset, it is appropriate for direct us further along the road to integration. me to pay tribute to the noble Lord, Lord Warner, for The noble Lord, Lord Skelmersdale, refers to the his strong advocacy of the need to improve the quality impossibility of progress being achieved without a and funding of social care services. The noble Lord single body organising it. I do not think that that is played a critical role as part of the Dilnot commission right. In fairness to the Bill and the Government, the and has made strong speeches both today and in creation of the health and well-being boards, with the Committee on this subject. obligation to produce a joint strategic needs assessment I am in complete agreement that high-quality social and to collaborate in implementing the measures required care services are crucial for the health and well-being to deal with those needs, provides a more coherent of the population. As the Government and many framework for that necessary degree of collaboration. others have said, major reform in adult social care is long overdue. We recognise the need for lasting reform 3.30 pm to respond to the challenges facing social care. The Nor is the noble Baroness, Lady Murphy, correct in recent engagement exercise, Caring for our Future: saying that my noble friend’s amendment constitutes a Shared Ambitions for Care and Support, conducted new Bill. It constitutes at least a partial completion of from September to December last year, highlighted the Bill, filling a lacuna in adult and social care, which again the scale of the challenges. We know that the is part of the Title of the Bill but thereafter becomes quality of care is variable and can sometimes be poor, virtually invisible. In effect, his amendment paves the as recent high-profile failures have demonstrated. The way for further reforms. current social care system does not support people If I have any reservation about my noble friend’s to plan for their future care needs or maintain their amendment, it is one that perhaps applies to the Bill as well-being and independence. People often have a a whole. We have talked repeatedly about adult social poor understanding of what social care is and of how care as we have gone through the Bill, but there is very to navigate the system and access the services they little about the social care of children in it. Perhaps need. that is something to which we ought to have devoted a All this is compounded by the well documented little more time. There have been occasional references, twin issues of an ageing society and financial constraint. and there are some amendments, but we will have to This critical context explains why the Government return to the subject if not during what little time have set the reform of adult social care as one their key remains for this Bill then in the not too distant future. priorities, but it also explains why social care reform Having said that, my noble friend’s amendment advances merits it own focus and cannot be dealt with around the argument and lays out a structure that could be the edges of discussions on another important topic. most useful in ensuring a degree of collaboration, The Government are convinced that the time has 1677 Health and Social Care Bill[LORDS] Health and Social Care Bill 1678

[EARL HOWE] Moreover—I see this as the central point—we do come for social care reform. Given that, the question not want to make further changes to the existing before us is not whether action should be taken to statute when more lasting legal reform is already planned improve the quality of social care services but rather in the near future. Social care is a vital public service how we go about doing so. and deserves its own focus in its own statute. Too I have given Amendment 163AA a good deal of often, debates on social care have taken place on the consideration, and I am afraid that I have to say to the margins of those on another issue. noble Lord, Lord Warner, that I do not feel it is the appropriate mechanism to achieve what he seeks. This Baroness Meacher: My Lords— is because, as well as reform being needed for social care quality and funding, there is broad consensus Earl Howe: I will give way but we are on Report. that social care law too needs extensive reform. The noble Baroness, Lady Murphy, helpfully mentioned Baroness Meacher: I apologise for intervening but the Law Commission report on law reform, which put I wonder whether it might be relevant to change the forward this argument last year. I wish to quote a Title of the Bill to the Health Bill, bearing in mind the short passage of the report, which states that, noble Earl’s very valid comments that there will be a “adult social care law has been the subject of countless piecemeal White Paper and a totally separate Bill. The Bill’s Title reforms … It is of little surprise that not only does the law perplex is a misnomer. service users and social workers, but also the judiciary”. This is the problem with the noble Lord’s amendment; Earl Howe: The noble Baroness may not have been to accept it would be to perpetuate exactly the same following all our debates as closely as some, given that confusing and piecemeal approach against which the we have extensively debated integrating health and Law Commission argues. The legal framework for social care and how the Bill will improve the prospects care and support needs fundamental reform, not further of that. I therefore do not agree that social care is such additions to an already opaque statute. a poor relation in the Bill. She is quite right; of course I wish to set out briefly what I see as the appropriate its prime focus is health, but we have not completely course of action on social care reform. We will publish neglected the subject that is so close to her heart. a White Paper on care and support in spring this year. Specific legislation on social care will be the most I repeat that undertaking, particularly to the noble appropriate vehicle for debating these critical matters Baroness, Lady Pitkeathley. We will follow this by and achieving lasting reform. Of course I understand bringing forward legislation at the earliest opportunity. the desire of the noble Lord, Lord Warner, to keep The White Paper will draw on multiple sources, including social care at the top of the political agenda. That is the excellent work of the Law Commission and the greatly to his credit. I can assure him that the Government Commission on Funding of Care and Support, for have not lost sight of this. We share the same aims for which I again express my gratitude to the noble Lord, a high-quality service, but it would be wrong to legislate Lord Warner. The White Paper will respond formally now in such a selective way. The noble Lord may to the reports of both those commissions and, of suppose that this is just another instance of a Minister course, to the Health Select Committee report on following the standard line that says “resist”, but I social care. hope he will accept that that is not so. There are The noble Lord has proposed that a duty be placed genuine reasons why the amendment is a bad idea, and on the Secretary of State to secure continuous I hope that he will feel able to withdraw it. improvement in the quality of social care. The Having said that, I look forward to debating these Government’s proposals for embedding and safeguarding issues with him further in due course, and to benefiting quality throughout social care will be a central theme from the insight that he and others bring to this topic. for the White Paper. We sought views on this as part of the engagement; it highlighted that progress on Lord Warner: My Lords, this is an interesting debate. quality has already been made with the publication of Let me say to the noble Baroness, Lady Murphy, that Transparency in Outcomes last year, which set out the I am not having the House on. I am deadly serious Government’s approach on quality, transparency and about this because when the Dilnot commission was outcomes in social care. Our approach to quality set up we were asked to do a job extremely rapidly, and improvement is aimed at responding to poor quality, we did so well within the 12 months we were set. We enabling improvement and rewarding best-quality services were asked to do that so that the Government could to support choice. crack on with change, which is absolutely vital. This The ideal for social care is a sector filled with great service—adult social care—is in a parlous state that people doing great jobs who deliver high-quality care will also do enormous damage to the NHS. Unless to people using social care services. As I said, we are you do something quickly about adult social care, you committed to publishing the White Paper this spring will cause the most terrible financial crisis in the NHS. and preparations are on course. The Government are That is what the demography tells us. That is the taking the broadest possible approach to achieving reality for urgent admissions to acute hospitals and consensus on the most crucial long-term issues. Therefore, people staying there much longer than they need to. in that context, I do not believe that the time is right If you are interested in improving and safeguarding for an amendment of this sort. It would pre-empt the the NHS, you should be interested in rapidly moving White Paper and could leave stakeholders unclear on on with the reform of adult social care. The Government the broader picture of social care reform. are already behind time on this reform. I do not blame 1679 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1680 the noble Earl, but we were expecting faster action, as Goudie, B. Morris of Handsworth, L. was the Dilnot commission. Spring could come quite Gould of Potternewton, B. Morris of Manchester, L. late this year in terms of the White Paper appearing, Grantchester, L. Moser, L. Grenfell, L. Myners, L. and we have no guarantee that there will be legislation Grey-Thompson, B. Neill of Bladen, L. in the next Session. The noble Earl has stuck to the Grocott, L. Noon, L. normal line, for which I do not criticise him, that one Hanworth, V. Nye, B. can give no assurances about the next Session’s legislation, Harries of Pentregarth, L. O’Neill of Clackmannan, L. but one has to be an extreme optimist to believe that a Harris of Haringey, L. Ouseley, L. Harrison, L. Owen, L. collective Government will want to have another go at Hart of Chilton, L. Palmer, L. this territory in the next parliamentary Session. I do Haskel, L. Patel, L. not doubt his good will—I am grateful for the kind Haworth, L. Patel of Blackburn, L. words he said about me—nor his real confidence that Hayter of Kentish Town, B. Patel of Bradford, L. the Government will press on with that, but there are a Healy of Primrose Hill, B. Pendry, L. Henig, B. Peston, L. lot of people out there, not just in front of Parliament Hilton of Eggardon, B. Pitkeathley, B. today, who think that the Government need to go Hollick, L. Prescott, L. faster on this issue. Hollins, B. Radice, L. I have listened very carefully. The amendment does Hollis of Heigham, B. Ramsay of Cartvale, B. Howarth of Breckland, B. Rea, L. not prevent the Government from bringing forward Howarth of Newport, L. Rees of Ludlow, L. new legislation in the next Session. If they want to do Howells of St Davids, B. Rendell of Babergh, B. that, I shall be deeply delighted and they will have my Hoyle, L. Richard, L. support. I see nothing in the amendment that prevents Hughes of Stretford, B. Rosser, L. the Government from making a start on making changes Hughes of Woodside, L. Rowlands, L. and protects them to go further if they want to include Hunt of Kings Heath, L. Royall of Blaisdon, B. Hylton, L. St John of Bletso, L. such provision in the next legislative programme. Irvine of Lairg, L. Sawyer, L. I think we should make sure that adult social care is Janner of Braunstone, L. Scotland of Asthal, B. properly represented and recognised in the Bill. Therefore, Jay of Paddington, B. Sewel, L. I wish to test the opinion of the House. Joffe, L. Sheldon, L. Jones, L. Sherlock, B. Jones of Whitchurch, B. Simon, V. 3.45 pm Judd, L. Singh of Wimbledon, L. Kennedy of Southwark, L. Skidelsky, L. Division on Amendment 163AA. Kennedy of The Shaws, B. Smith of Basildon, B. Kerr of Kinlochard, L. Snape, L. Contents 203; Not-Contents 261. King of West Bromwich, L. Soley, L. Kinnock, L. Stair, E. Amendment 163AA disagreed. Kinnock of Holyhead, B. Stern, B. Kirkhill, L. Stevens of Kirkwhelpington, Division No. 1 Knight of Weymouth, L. L. Krebs, L. Stevenson of Balmacara, L. CONTENTS Lea of Crondall, L. Stone of Blackheath, L. Liddell of Coatdyke, B. Sugar, L. Afshar, B. Corston, B. Liddle, L. Symons of Vernham Dean, B. Ahmed, L. Cunningham of Felling, L. Lipsey, L. Tanlaw, L. Anderson of Swansea, L. Darzi of Denham, L. Listowel, E. Taylor of Blackburn, L. Andrews, B. Davies of Coity, L. Low of Dalston, L. Temple-Morris, L. Armstrong of Hill Top, B. Davies of Oldham, L. McAvoy, L. Thornton, B. Bach, L. Davies of Stamford, L. McConnell of Glenscorrodale, Tomlinson, L. Bakewell, B. Dean of Thornton-le-Fylde, L. Touhig, L. Barnett, L. B. McDonagh, B. Triesman, L. Bassam of Brighton, L. Deech, B. Macdonald of Tradeston, L. Tunnicliffe, L. [Teller] [Teller] Donaghy, B. McFall of Alcluith, L. Turnberg, L. Beecham, L. Donoughue, L. McIntosh of Hudnall, B. Turner of Camden, B. Berkeley, L. Drake, B. MacKenzie of Culkein, L. Wall of New Barnet, B. Bhattacharyya, L. Drayson, L. Mackenzie of Framwellgate, Warner, L. Bilston, L. Dubs, L. L. Warnock, B. Blackstone, B. Eatwell, L. McKenzie of Luton, L. Watson of Invergowrie, L. Blair of Boughton, L. Elder, L. Mallalieu, B. Wheeler, B. Blood, B. Elystan-Morgan, L. Martin of Springburn, L. Whitaker, B. Boateng, L. Evans of Temple Guiting, L. Masham of Ilton, B. Whitty, L. Borrie, L. Evans of Watford, L. Massey of Darwen, B. Wigley, L. Bradley, L. Exeter, Bp. Mawson, L. Wilkins, B. Bragg, L. Falkland, V. Maxton, L. Williams of Elvel, L. Brennan, L. Farrington of Ribbleton, B. Meacher, B. Williamson of Horton, L. Brooke of Alverthorpe, L. Faulkner of Worcester, L. Mitchell, L. Wood of Anfield, L. Brookman, L. Filkin, L. Monks, L. Woolmer of Leeds, L. Browne of Ladyton, L. Foster of Bishop Auckland, L. Morgan of Ely, B. Worthington, B. Campbell-Savours, L. Foulkes of Cumnock, L. Morris of Aberavon, L. Young of Hornsey, B. Clancarty, E. Gale, B. Clark of Windermere, L. Gibson of Market Rasen, B. NOT CONTENTS Clarke of Hampstead, L. Giddens, L. Clinton-Davis, L. Golding, B. Aberdare, L. Ahmad of Wimbledon, L. Cohen of Pimlico, B. Goldsmith, L. Addington, L. Alderdice, L. Collins of Highbury, L. Gordon of Strathblane, L. Adebowale, L. Allenby of Megiddo, V. 1681 Health and Social Care Bill[LORDS] Health and Social Care Bill 1682

Anelay of St Johns, B. [Teller] Fraser of Carmyllie, L. Methuen, L. Shrewsbury, E. Armstrong of Ilminster, L. Freud, L. Miller of Chilthorne Domer, Shutt of Greetland, L. [Teller] Astor of Hever, L. Garden of Frognal, B. B. Skelmersdale, L. Attlee, E. Gardiner of Kimble, L. Miller of Hendon, B. Slim, V. Avebury, L. Gardner of Parkes, B. Montgomery of Alamein, V. Smith of Clifton, L. Baker of Dorking, L. Geddes, L. Montrose, D. Soulsby of Swaffham Prior, L. Barker, B. German, L. Morris of Bolton, B. Spicer, L. Bates, L. Glasgow, E. Moynihan, L. Stedman-Scott, B. Benjamin, B. Glenarthur, L. Murphy, B. Steel of Aikwood, L. Berridge, B. Glendonbrook, L. Naseby, L. Stevens of Ludgate, L. Best, L. Glentoran, L. Newlove, B. Stewartby, L. Bew, L. Gold, L. Newton of Braintree, L. Stoddart of Swindon, L. Bichard, L. Goodhart, L. Nickson, L. Stoneham of Droxford, L. Birt, L. Goodlad, L. Northover, B. Storey, L. Black of Brentwood, L. Greenway, L. Norton of Louth, L. Stowell of Beeston, B. Blackwell, L. Hamilton of Epsom, L. Oppenheim-Barnes, B. Strathclyde, L. Blencathra, L. Hamwee, B. Palmer of Childs Hill, L. Taverne, L. Bonham-Carter of Yarnbury, Hanham, B. Perry of Southwark, B. Taylor of Holbeach, L. B. Hannay of Chiswick, L. Phillips of Sudbury, L. Tenby, V. Boothroyd, B. Harris of Richmond, B. Plumb, L. Teverson, L. Boswell of Aynho, L. Henley, L. Popat, L. Thomas of Gresford, L. Bowness, L. Higgins, L. Quirk, L. Thomas of Swynnerton, L. Bradshaw, L. Hill of Oareford, L. Ramsbotham, L. Thomas of Walliswood, B. Brinton, B. Hodgson of Astley Abbotts, Randerson, B. Thomas of Winchester, B. Brittan of Spennithorne, L. L. Rawlings, B. Tombs, L. Broers, L. Hooper, B. Reay, L. Tope, L. Brooke of Sutton Mandeville, Howard of Rising, L. Redesdale, L. Trimble, L. L. Howe, E. Renfrew of Kaimsthorn, L. True, L. Brougham and Vaux, L. Howe of Aberavon, L. Rennard, L. Trumpington, B. Browne of Belmont, L. Howe of Idlicote, B. Renton of Mount Harry, L. Tugendhat, L. Browning, B. Howell of Guildford, L. Ribeiro, L. Tyler, L. Byford, B. Hunt of Wirral, L. Risby, L. Tyler of Enfield, B. Caithness, E. Hussain, L. Roberts of Conwy, L. Ullswater, V. Cameron of Dillington, L. Hussein-Ece, B. Roberts of Llandudno, L. Verma, B. Campbell of Alloway, L. Inglewood, L. Rodgers of Quarry Bank, L. Waddington, L. Cathcart, E. James of Blackheath, L. Rogan, L. Wade of Chorlton, L. Chidgey, L. James of Holland Park, B. Rowe-Beddoe, L. Wakeham, L. Chorley, L. Jenkin of Kennington, B. Ryder of Wensum, L. Wallace of Saltaire, L. Clement-Jones, L. Jenkin of Roding, L. Saltoun of Abernethy, Ly. Wallace of Tankerness, L. Cobbold, L. Jolly, B. Sanderson of Bowden, L. Walmsley, B. Colwyn, L. Jones of Birmingham, L. Sassoon, L. Walpole, L. Condon, L. Jopling, L. Scott of Needham Market, B. Walton of Detchant, L. Cope of Berkeley, L. Kakkar, L. Seccombe, B. Warsi, B. Cormack, L. Kilclooney, L. Selkirk of Douglas, L. Wasserman, L. Cotter, L. King of Bridgwater, L. Selsdon, L. Watson of Richmond, L. Courtown, E. Kramer, B. Shackleton of Belgravia, B. Wei, L. Craig of Radley, L. Laird, L. Sharkey, L. Wheatcroft, B. Craigavon, V. Laming, L. Sharp of Guildford, B. Wilcox, B. Crathorne, L. Lamont of Lerwick, L. Sharples, B. Williams of Crosby, B. Crickhowell, L. Lang of Monkton, L. Shaw of Northstead, L. Willis of Knaresborough, L. Cumberlege, B. Lawson of Blaby, L. Sheikh, L. Willoughby de Broke, L. Dannatt, L. Levene of Portsoken, L. Shephard of Northwold, B. Wilson of Tillyorn, L. De Mauley, L. Lexden, L. Shipley, L. Younger of Leckie, V. Dear, L. Lingfield, L. Denham, L. Linklater of Butterstone, B. 4pm Dholakia, L. Liverpool, E. Dixon-Smith, L. Lucas, L. Dobbs, L. Luce, L. Amendment 163BZZA Doocey, B. Luke, L. Dundee, E. Lyell, L. Moved by Baroness Thornton Dykes, L. Lytton, E. Eaton, B. Macdonald of River Glaven, 163BZZA:Before Clause 60, insert the following new Clause— Eccles, V. L. “CHAPTER A1 Edmiston, L. Macfarlane of Bearsden, L. Principles of regulations of health and adult social care services Elton, L. MacGregor of Pulham Emerton, B. Market, L. Principles of regulation of health and adult social care services Empey, L. Maclennan of Rogart, L. Any person undertaking any regulatory functions under this Erroll, E. McNally, L. Part or any functions in relation to services provided under this Falkner of Margravine, B. Maddock, B. Part shall exercise all such functions based on the principles of Faulks, L. Magan of Castletown, L. universality and social solidarity.” Fearn, L. Maples, L. Feldman of Elstree, L. Mar and Kellie, E. Finlay of Llandaff, B. Marks of Henley-on-Thames, Baroness Thornton: My Lords, at last we come to Flight, L. L. the heart of the Health and Social Care Bill—Part 3. Fookes, B. Marland, L. Forsyth of Drumlean, L. Marlesford, L. On 3 March, David Cameron was again telling his Fowler, L. Mawhinney, L. party about the need for greater competition and for Framlingham, L. Mayhew of Twysden, L. the private sector to be encouraged. He has since 1683 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1684 justified his remarks by saying that it would have been NHS will not be subject to legal challenge on competition easier not to have addressed the “invisible crisis” in the grounds. There are no contracts on the arrangements National Health Service in England. So, the “invisible of which the law may get traction. However, even in crisis” which no one but the coalition Government Wales, if there is a decision that some aspect of provision seem able to see is the justification for fragmenting our may require non-NHS providers to be engaged, the NHS and opening it up to the private sector. full force of competition law applies. We all know that. Our fundamental disagreement with the two parties We are part of the EU so these rules apply. opposite is that we think that competition should be We know that health services can, as Part B services, used only within a managed framework and when it get some protection from the full force of EU competition adds value. There has to be freedom to use non-competitive law. We believe that that protection will be chipped means and to deliver co-operation, collaboration and away over the years. Although procurement is simpler integration. For a moment we thought that we had a under Part B, it is still open to challenge if the basics new recruit to the argument, when the Secretary of around transparency are not met. If there is an intention State announced that he had lost faith in competition. to enter into a contract that is enforceable in law, you He was all for it in his landmark 2005 speech to the quite rightly have to go through the correct procedure. NHS Confederation, and he was all for it when he and This is no different from what is set out in the current his coalition allies launched this Bill with price competition principles and rules, which, if you read them, make a and an economic regulator to promote competition. lot of sense—as they should, because my Government Now, however, it is reported that he is not so sure. wrote them. We on these Benches have not changed our minds. The doubt and the opportunities for challenge will We share the view expressed by the noble Baroness, remain unless you construct in the legislation a framework Lady Williams, that Part 3 should be dropped—a view to protect commissioners of the kind that we set out. which is shared by almost all the professional bodies, Such an approach might not be perfect but it is the best as well as the staff in the NHS. Even the evangelical that major brains can come up with. Since the coalition GP commissioners are very aware of competition, and Government’s stated intention is that commissioners we note that the drive to force through any qualified should be free, we should be able to see either their provider for the operating framework for 2011-12 has version or their legal advice—but we have not. The just been thwarted—a highly embarrassing defeat for purpose is not to give unfair preference to NHS providers, government policy. or, indeed, to prevent third sector providers; the purpose Making competition central to the reform of the NHS, is to free commissioners to make decisions that would as opposed to making it one component of a more have to pass the test of reasonableness in any event. rational and comprehensive reform with collaboration Neither the third sector nor private sector providers and co-operation at its heart, remains dangerous. Even would be any worse off, because they would still have with the amendments already agreed, Part 3 is a mess; to go through procurement procedures under any and even at this late stage the Government should circumstances if a service went out to tender. think again and try to build on the very wide consensus We think that Amendment 163BZZA, at the head that accepts a role for competition only when it adds of this group, and the following amendment are the value for patients. right place to recognise this important principle from The three amendments in this group—and the late the outset. Amendment 163D follows a line that our arrival of a manuscript amendment in the name of the Liberal Democrat colleagues have also explored, which noble Lord, Lord Clement-Jones, which I will return is to define our NHS in a way that makes it clear that it to in a moment—seek to address fears that have been is not a market despite what the Bill states. widely expressed about the way that competition will The principle of social solidarity is used in the intrude into the NHS in ways that we do not want, courts to help differentiate national social policy from and that do not benefit patients. The fear is supported the EU internal market and competition law. Social by the legal advice of many experts, who foresee how solidarity is therefore not an invention of the Labour the Bill will open up opportunities for legal challenge Party, it is a term used in EU law. Social solidarity in ways that are not currently acknowledged. means “provided for that purpose as a matter of social We also see that some clinical commissioning groups policy” and as such may be considered by the courts to are asking awkward questions about how autonomous restrict the application of EU internal market law. All they will be, and how free to do the job that they are this has the same objective—to limit the scope for EU given. We know that they will have to obey the rules law to be applied in ways that do not help. set out for them both by the NHS board and by The noble Lord, Lord Clement-Jones, has, as it Monitor, but is it worse than that? Will they have to were, come to the party somewhat late by tabling his employ legal and consultancy support on a grand manuscript amendment. My colleagues and I have scale to avoid being challenged by the courts or by been in discussion with him and his colleagues, including whatever the co-operation and competition panel turns the noble Baroness, Lady Williams, for many months, into? Will fear of challenge deter the innovation that and we have shared with them our thinking on this the Bill claims will be unlocked? matter. Indeed only last week I wrote to the noble Amendment 178A is the best effort of many legal Baroness, the noble Lord and their colleagues about minds collectively to solve the problem of ensuring, so exactly what we thought we should do together on far as is possible, that commissioners can do their job. Part 3. In that letter, as point one, I said: When one looks at the old NHS, or even at Wales, one “Your amendment 177”— sees that there is a very high degree of confidence that the manuscript amendment— arrangements made between different parts of the “and our 163 cover the same kind of point and should be combined”. 1685 Health and Social Care Bill[LORDS] Health and Social Care Bill 1686

[BARONESS THORNTON] The objective of the Bill and Ministers during its I am very pleased that this burst of late enthusiasm passage must be to put beyond doubt the protection of from the noble Lord, Lord Clement-Jones, has led to the NHS from competition as an end in itself where his agreeing that we should combine our amendments, this does not serve the interests of patients. The tests and I am absolutely delighted to say that I would want summarised from OFT guidance for whether EU to accept his amendment as an amendment to our competition law applies to the provision of healthcare amendment. I hope that noble Lords will have time for the purposes of the NHS falls into three stages. to work out what exactly is going on here as the First, is the provider an “undertaking”? This depends discussion progresses. Essentially, however, the noble on whether it carries out an “economic activity”. This Lord, Lord Clement-Jones, wants to amend our manuscript status may fluctuate over time and apply to some amendment with his manuscript amendment—which activities and not others of the same provider. Offering I am sure he will explain. I apologise to the House that or supplying goods or services in a given market is the this has been done as a manuscript amendment, but characteristic feature of an economic activity. I am happy to report that we seek the same end. When Even if economic, is the activity wholly social in the time comes, I will be very happy to accept the noble nature rather than commercial? Compulsory healthcare Lord’s amendment. and insurance schemes have been held to be wholly Our amendment does not oppose the use of social. The OFT emphasises that this depends on the competition, in its place, and will enhance the Bill. I facts of each case. Even if the provider is an undertaking also like its use of the term social solidarity, as that and the economic activity is not wholly social, is this appropriately describes what our NHS is, and why and in relation to services of general economic interest? how it exists. I beg to move. This is where both Amendment 177, which I am currently speaking to as well as Amendment 178, come in, in addition to Amendment 163BZZA. Amendment 163BZZB (to Amendment 163BZZA) SGEIs are protected from some aspects of competition Moved by Lord Clement-Jones law. Member states are free to designate services as 163BZZB:Line 6, after “functions” insert “in accordance with SGEIs and the Commission will challenge such decisions the provisions of Article 106 of the Treaty of the Functioning of only if it thinks that the member state is in error. In the the European Union as set out in section (Service of general view of these Benches, the risk of a number of elements economic interest),” of the Bill being taken together increases the likelihood of NHS services being found by English and EU Lord Clement-Jones: My Lords, I beg to move courts to fall within the scope of UK and EU competition Amendment 163BZZB. I am delighted at the response law. These include the fact that the Competition of the noble Baroness, Lady Thornton. Clearly she Commission is deployed in reviewing the development recognises good drafting when she sees it. I hope she of competition in the NHS in the provision of healthcare, accepts the arguments, in substance, as I put them and the exercise by Monitor of its functions in relation forward in my speech. to the provision of healthcare services. Secondly, the potential deregulation of foundation In common with many other Members of this trusts from 1 April 2016 under Clauses 111 to 114 House on all Benches, I expressed a number of concerns means that Monitor will no longer from that date have about the risk of market competition becoming greatly the power to appoint and dismiss foundation trust more prevalent within the health service as a result of directors unless the Secretary of State decides otherwise. the current provisions of the Bill, despite some concessions On oversight of foundation trust mergers by the OFT, offered and partly because the Bill failed to fully we were concerned that ordinary competition rules as reflect the intentions of the Future Forum. Our fear a result of the application of Part 3 of the Enterprise was that the Bill contained a number of measures that Act by virtue of Clause 77 would be applied. Originally, could increase competition within the NHS at the the PPI cap for foundation hospitals was lifted under expense of collaboration and integration. Clauses 163 and 164, opening the way for the majority We were explicit that we are not against competition of income for some foundation trusts to derive from in the NHS but it must be applied where it is appropriate private patients, which could have led to a loss of to do so in the interests of patients. It is not appropriate status as an organisation promoting social solidarity. in all circumstances. Patient and public benefit can This has now been restricted to a maximum of half often be secured in other ways; for example, integration the revenue of an FT, which helps to mitigate that risk. of services and co-operation between providers, or a There are still issues surrounding transparency and mixture of these with competition, are often preferable authorisation by a foundation trust’s council of governors alternatives. or Monitor which remain to be resolved with later EU and UK competition law has had some application amendments. within the health service for some years now, largely as a result of Labour’s reforms in the 2006 Act, and we 4.15 pm should remember that. However, we do not want to We are also concerned that even after the changes see competition law applied universally across the made following the Future Forum report, Monitor’s health service so that our health service commissioners powers were not properly balanced so that they could and providers are required to operate an entirely market- ensure integration as well as prevent anti-competitive based NHS without being able to choose where the behaviour. The Government have now tabled Amendment market and competition should apply and where they 193 to Monitor’s powers under Clause 97 so that it can should not. set and enforce licence conditions for the purposes of 1687 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1688 enabling integration and co-operation in line with the innovative integration in the first place. Beneficial principles and rules for co-operation and competition, co-operation must not be prevented by competition which we will debate later. In putting down amendments, law and must be actively encouraged. we have no hostility to competition as such, merely a When a court approaches the question of whether desire to make use of the opportunities that the TFEU an activity carried out by one of the new bodies under and European competition law offer member states to the proposed health regime falls within the scope of avoid the NHS being treated like a utility, such as gas the competition regime, purchasing activity is characterised and electricity. by the services for which the purchased products are Under the EU treaties, Article 106 of the Treaty on used, and the court will then examine whether the the Functioning of the European Union states: offering of relevant services should be regarded as “Undertakings entrusted with the operation of services of economic. However, the court will also have regard to general economic interest … shall be subject to the rules contained the objectives that the relevant body is required to in this Treaty, in particular to the rules on competition, insofar as pursue; and the greater extent to which the domestic the application of such rules does not obstruct the performance, regime makes it clear that the activities should be in law or in fact, of the particular tasks assigned to them”. carried out by reference to public policy objectives Member states have certain discretion as to which rather than in line with free market incentives, the less services are services of general economic interest. By likely it is that the court will find the activity to be ensuring healthcare services for the purposes of the economic activity governed by the competition rules. NHS are services of general economic interest and So the way we have proposed to do this both in our that the “task” of co-operation between services is amendment and in Amendment 178 is to expand upon “assigned” to the healthcare providers, it should be existing duties on co-operation within the NHS in the possible to provide some protection from less desirable 2006 Act and make use of the licensing regime which aspects of competition law. Monitor will operate under the Bill to impose co-operation An EU summary of legislation on this issue states: for the purposes of integration of services. “Services of general economic interest (SGEIs) are different Other approaches may of course be valid—for instance, from ordinary services in that public authorities consider that under the general competition rules in Article 101 of they need to be provided even where the market is not sufficiently the TFEU and in the UK’s Competition Act 1998. An profitable for the supply of such services. The concept of services of general interest is based on the concern to ensure that a quality agreement that restricts competition may be capable service is provided at an affordable price everywhere for everyone. of being exempted. Clear statements in the Bill or Services of general interest contribute to achieving the objectives during the passage of the Bill need to be made of the of solidarity and equality of treatment underlying the European Government’s view that improvements to patient care model of society”. fall to be taken into account within the context of The objective must therefore be to ensure that providers Section 9. Lawyers would then be able to refer to the for the purposes of the NHS that fall into the category Bill or to Hansard when arguing for such an interpretation of economic activity from time to time will have the as and when the issue crops up in later cases, especially necessary protection. By categorising health services if the burden of proof falls on the party trying to as a whole as SGEIs, where services fall into the demonstrate that the agreement is necessary to produce economic activity category the protections available the countervailing benefits. In addition, under Section 6 against the application of competition law can be of the Competition Act, the OFT or Monitor may brought into play. Our amendments would designate recommend that the Secretary of State makes a block healthcare provided for the purposes of the NHS as a exemption order specifying that a certain category of service of general economic interest. agreements falls outside the scope of Section 2 of the It must be right to clarify the treatment of health Competition Act. services when it is available and recognised explicitly in There are many ways of resolving the competition EU guidance. To benefit from the SGEI exclusion it issues under this Bill and I am sure that there is much will be necessary to show that performance of the common ground on this legal analysis. This means tasks assigned to the undertakings entrusted with the that much of the difference between us relates not so operation of SGEI is being obstructed by the rules of much to the law but to the degree of risk prevailing in competition. The best example to illustrate why it is its application. It is also true that the impact of competition important to recognise healthcare for the purposes of law is likely to be determined to a considerable extent the NHS as a market that merits this status is obesity, not necessarily by decisions by the competition authorities which affects deprived communities disproportionately. in individual cases, but in the advice provided by A pure market approach would lead to providers, for lawyers to their clients operating in the health sector. instance, offering gastric band surgery, which would There is clearly a risk that lawyers and the companies be more profitable than undertaking health campaigns involved will take a conservative approach and avoid to tackle prevention. potentially beneficial co-operation because of the perceived Co-operation between healthcare providers, however, risk that it might be contrary to the competition rules. may be the best way to achieve good patient outcomes. So another way to minimise this is for Monitor to For example, PACE, the post-acute care and enablement issue sector-specific guidance on the likely impact of programme, involves collaboration between providers the competition rules on specific types of health sector proactively to seek out medically stable in-patients agreements. and to treat them at home with interventions which I believe that these are constructive suggestions so would normally require them to remain in hospital, that the unwanted application of competition law can such as intravenous wound care. This type of service be avoided. It is now up to the Government to recognise involves integration and a co-operative culture to the risk and act accordingly. I beg to move. 1689 Health and Social Care Bill[LORDS] Health and Social Care Bill 1690

Earl Howe: My Lords, competition in the health inappropriate application of competition law that my service is a complex topic and very often, in my noble friend and others require. I hope that the House experience, misunderstood. It is important that we will allow me to set this out in a little detail. start with a misconception which several noble Lords Co-operation for the benefit of patients should not have raised with me outside the Chamber and, indeed, breach competition law. Article 101(3) of the Treaty in Committee. We need to be clear that competition on the Functioning of the European Union and Section 9 already exists in the NHS and that the Bill does not of the Competition Act lay down exemptions which herald its introduction. The last Government fully apply if the wider benefits of an agreement outweigh recognised that and encouraged it. The last operating its anti-competitive effects. On an individual basis, we framework which they put in place for the NHS stated: would expect collaborative arrangements whose overall “We shall enable this by … re-affirming our commitment to effect was beneficial to patients to meet the criteria in the ‘any willing provider’ approach for free choice of elective care, reducing the barriers to the entry of new providers”. Article 101(3) and Section 9. The previous Prime Minister, Gordon Brown, giving Competition law would be unlikely to apply to a evidence to the Liaison Committee in December 2007, wide range of NHS services. Some obvious examples said that, are accident and emergency, trauma, critical care, “the private sector … is expanding, will continue to expand and maternity, specialist surgery and many others, particularly will be a lot bigger in the next few years than it is now”. in remote or rural areas. The Labour Party manifesto of 2010 said: Monitor would support the NHS to understand “Patients requiring elective care will have the right, in law, to where competition law does and does not apply. A key choose from any provider who meets NHS standards of quality at benefit of establishing Monitor as a sector regulator, NHS costs”. with concurrent responsibilities under the Competition The previous Government’s policy of increasing Act, is that it will be able to provide authoritative the use of competition is already benefiting patients. guidance to the NHS on where that law would and The recent report from the Office of Health Economics would not apply. The Government’s firm expectation Commission on Competition in the NHS concluded is that Monitor would produce sector-specific guidance that, and address this question in terms of relevant examples, “evidence both from the UK and internationally suggests that including models of integrated care and clinical networks, quality based competition with prices fixed by a regulator can be which would be updated in line with developments in beneficial, producing higher quality care at the same cost on healthcare practice. This guidance would help reduce average and, importantly, not leading to increased inequity in unnecessary fear of legal challenge and uncertainty access to health care”. for both commissioners and providers. Baroness Thornton: I thank the noble Earl for allowing Monitor could also provide informal advice in me briefly to intervene. He has given some useful and individual cases, building on what the Co-operation selective quotes. Do not those quotes go on to warn and Competition Panel does now. For example, that very seriously about cherry picking? might include commenting on what types of collaborative arrangements and specific provisions within such arrangements are and are not likely to comply with the Earl Howe: I think that the noble Baroness and competition rules. Any such advice would be without I agree that cherry picking is highly undesirable, which prejudice to any future decision that Monitor might is why this Bill outlaws it. have to take to enforce the provisions of the Competition I do not see, as some do, competition and integration Act. However, like the guidance, such advice would as polar opposites, nor are they mutually exclusive. I provide reassurance to providers and could help them agreed entirely with the Future Forum when it said in to avoid unnecessary legal costs. its report last year: If and when it became appropriate, Monitor could “We have also heard many people saying that competition and integration are opposing forces. We believe this is a false dichotomy. make the case for block exemptions. That would mean Integrated care is vital, and competition can and should be used that the Competition Act would not apply to specified by commissioners as a powerful tool to drive this for patients”. arrangements for the provision of NHS services. That is worth keeping in our minds. At this stage, it is not clear whether or where block exemptions might be appropriate, but an example In response to my noble friend Lord Clement-Jones, of the sort of arrangement that could potentially be let me turn to competition law. I understand that some covered is clinical networks. In any event, this protection noble Lords want to prevent competition law ever would remain available and there is no doubt in my applying to NHS services. That is to wish for the mind that Monitor would be better placed than the impossible. The question is not whether competition OFT to determine when and where it might be needed. law should apply to the health service but how. That is why I agree with my noble friend that we must make In these and other areas, competition is unlikely to sure that the NHS is insulated from the inappropriate be effective in providing services on the scale or in the application of competition law. In particular, we must way that best promotes patient’s interests. The NHS ensure that clinicians are free to commission NHS often acts to promote social objectives to ensure that services in the way that best serves patients’ interests patients receive the level of service that they could not and that there are no impediments to beneficial afford or which private companies might not find it co-operation to increase integration, improve quality profitable to provide. Applying competition law in or reduce inequalities. Under our proposals, a series of such contexts makes little sense and such activities are protections will provide the sort of insulation against likely to fall outside its scope. 1691 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1692

Next, commissioners would not have to create markets these providers operate across the various sectors of against the interests of patients. Clinicians will be free healthcare, including the community and mental health. to commission services in the way they consider best. They provide a range of services, including vital specialist We intend to make it clear that commissioners will services to people in lower socioeconomic and minority have a full range of options and that they will be under groups, and people with rare medical conditions. no legal obligation to create new markets, particularly Amendment 178A does not acknowledge that reality where competition would not be effective in driving at all. Instead, it seeks to create an arbitrary and high standards and value for patients. As I have already unnecessary presumption in favour of NHS and explained, this will be made absolutely clear through foundation trusts which would likely act against patients’ secondary legislation and supporting guidance, as a best interests. For example, the amendment would result of the Bill. make it more difficult for a clinical commissioner The Bill already creates duties on commissioners to seeking to manage long-term conditions such as diabetes secure continuous improvement in the quality of services, or COPD in primary care and in the community— reduce inequalities and promote integrated services. involving GP practices or social enterprises—instead The Government intend to complement these by making of sending those patients to hospital. That could prevent it explicit through regulations under Clause 73 of the choice for patients in a very crucial area. It could also Bill that commissioning decisions must be in the best prevent choice in end-of-life care by restricting the interests of patients, those decisions must be transparent extent to which organisations such as Macmillan and and commissioners will be accountable for them. We Marie Curie were able to extend the services that they would expect the NHS Commissioning Board to maintain delivered for the NHS. It could prevent charities such guidance to support commissioners in these decisions, as Turning Point transforming— based on the available evidence and drawing on academic research. Baroness Thornton: My Lords, has the noble Earl It is worth reflecting that without Part 3, the main actually read the amendment? Paragraph 6(c) says, legal provision on commissioning NHS services would “the need to commission health services in a way that promotes continue to be the general procurement regulations for the integration of health and social care services”. public bodies introduced by the previous Administration Will the noble Earl accept that he just said that it does in 2006. The application of that law to the NHS is not say that? It says that; it is there. unclear. Without the provision that we intend to include in regulations under Clause 73, commissioners would continue to face risk of legal challenge when they Earl Howe: My Lords, we are talking about decided not to open services up to competition, even Amendment 178A. I disagree with the noble Baroness’s where the decision was in the best interests of patients. reading of it. It is quite clear what it says. It is geared That uncertainty is unacceptable. towards making the NHS the preferred provider. The noble Baroness shakes her head. If I have misunderstood Finally, the Bill would prevent private companies and that is not her intention, I will obviously retract taking over NHS trusts or foundation trusts. There that. has been a lot of misconception about that. I assure the House today, unequivocally, that that could not Yet the amendment would increase the risk of happen. commissioners facing legal challenge under procurement law. As the noble Baroness pointed out in 2010, I now turn to the opposition amendments. Amendment “procurement must be transparent and non-discriminatory”.—[Official 163D raises the application of competition law to the Report, 9/3/10; col. 137.] provision of NHS services. Its intention is to ensure Amendment 178A would be a retrograde step. I ask that competition law does not apply to the provision the noble Baroness to withdraw it, as well as the other of NHS services. However, as I have said, there is a amendment in this group. basic point to make here: it is not within the gift of this Bill to secure that. It is like saying that if you pass a law saying that black is white, that is what will Lord Clement-Jones: My Lords, is the Minister happen. However, what I agree on absolutely is that we aware that many of us will welcome the statement he need to protect the NHS from inappropriate application made? It was very comprehensive—indeed, more of competition law and its undesirable effects. Equally, comprehensive than would be possible in many respects as I said earlier, we do not want to leave patients under an amendment to the Bill. He has covered so unprotected from potential abuses by providers. That many different areas, both in terms of the provision- would be the effect of the amendment and I hope that commissioning duties of Monitor and also the duties the noble Baroness will reconsider her wish to move it. of co-operation. I also referred to the fact that this Bill would provide for clinical commissioners to decide how to Earl Howe: I am grateful to my noble friend. He secure NHS services to best serve the interests of their very well encapsulated in his speech the issues that we patients. Hence, I do not agree with Amendment 178A. are looking at. I hope that what I said will in turn serve The NHS has always been a comprehensive service, to reassure him on those crucial points. free to patients, with treatment and care based on clinical need and delivered through a wide range of Lord Clement-Jones: My Lords, clearly I have the diverse providers. That includes GPs, dentists, independent Floor. I thought that I had it after the noble Baroness, sector providers, NHS trusts, foundation trusts and a Lady Thornton, as I was guided. I am very pleased to range of charities and social enterprises. Taken together, have the Floor before her. 1693 Health and Social Care Bill[LORDS] Health and Social Care Bill 1694

[LORD CLEMENT-JONES] Evans of Parkside, L. McIntosh of Hudnall, B. What my noble friend Lord Howe said was extremely Evans of Temple Guiting, L. MacKenzie of Culkein, L. constructive, not only about the state of competition Evans of Watford, L. Mackenzie of Framwellgate, Falkland, V. L. within the health service and some of the patching Farrington of Ribbleton, B. McKenzie of Luton, L. that had to be done to make up for deficiencies of the Faulkner of Worcester, L. Mallalieu, B. 2006 Act, but also to do with competition, the block Filkin, L. Martin of Springburn, L. exemptions available, co-operation and the general Finlay of Llandaff, B. Massey of Darwen, B. duties of Monitor. A law court would probably find it Foster of Bishop Auckland, L. Maxton, L. Foulkes of Cumnock, L. Mitchell, L. much more useful to have my noble friend’s fuller Gale, B. Monks, L. statement than simply some rather narrow amendment Gibson of Market Rasen, B. Morgan of Ely, B. to the Bill. I recognise the deficiencies in my own Giddens, L. Morris of Aberavon, L. Amendments 177 and 178. I much prefer the Pepper v Glasman, L. Morris of Handsworth, L. Hart solution that has been found and proposed in Golding, B. Morris of Manchester, L. Goldsmith, L. Myners, L. these circumstances. The dangers of putting matters in Gordon of Strathblane, L. Noon, L. the Bill are entirely illustrated by Amendment 178A. Goudie, B. Nye, B. The Minister’s criticism of that amendment, which Gould of Potternewton, B. O’Neill of Clackmannan, L. was made to me by expert competition lawyers, of Grantchester, L. Ouseley, L. trying to put commissioning in a straitjacket as is Grenfell, L. Owen, L. proposed—it may give the wrong impression, but it is Grocott, L. Patel of Blackburn, L. Hameed, L. Patel of Bradford, L. ineffective in terms of EU procurement law—shows Hanworth, V. Pendry, L. exactly the dangers of trying to put too much into the Harris of Haringey, L. Pitkeathley, B. Bill. The Minister, entirely appropriately, has picked Harrison, L. Prescott, L. up many of the points made during the course of the Hart of Chilton, L. Prosser, B. Committee and in debate today and put forward a Haskel, L. Radice, L. Haworth, L. Ramsay of Cartvale, B. statement that will be used by those looking at provision Hayman, B. Rea, L. and commissioning in the NHS in future. On that Hayter of Kentish Town, B. Rees of Ludlow, L. basis, I wholly welcome it. I may not be able to withdraw Healy of Primrose Hill, B. Rendell of Babergh, B. my amendment to the amendment, but I shall certainly Henig, B. Richard, L. not be moving my Amendments 177 and 178. I beg Hennessy of Nympsfield, L. Rooker, L. Hilton of Eggardon, B. Rosser, L. leave to withdraw the amendment. Hollick, L. Rowlands, L. Hollis of Heigham, B. Royall of Blaisdon, B. Some Lords objected to the request for leave to withdraw Howarth of Breckland, B. Sawyer, L. the amendment, so it was not granted. Howarth of Newport, L. Scotland of Asthal, B. Howells of St Davids, B. Sewel, L. 4.41 pm Hoyle, L. Sheldon, L. Hughes of Stretford, B. Sherlock, B. Division on Amendment 163BZZB, as an amendment Hughes of Woodside, L. Simon, V. to Amendment 163BZZA Hunt of Kings Heath, L. Singh of Wimbledon, L. Irvine of Lairg, L. Smith of Basildon, B. Contents 188; Not-Contents 278. Janner of Braunstone, L. Smith of Finsbury, L. Jay of Paddington, B. Smith of Leigh, L. Joffe, L. Soley, L. Amendment 163BZZB disagreed. Jones, L. Stevenson of Balmacara, L. Jones of Whitchurch, B. Stone of Blackheath, L. Division No. 2 Judd, L. Symons of Vernham Dean, B. Kennedy of Southwark, L. Taylor of Blackburn, L. CONTENTS Kennedy of The Shaws, B. Temple-Morris, L. Adams of Craigielea, B. Brookman, L. King of Bow, B. Thornton, B. Adonis, L. Brooks of Tremorfa, L. King of West Bromwich, L. Tomlinson, L. Afshar, B. Browne of Ladyton, L. Kinnock, L. Touhig, L. Ahmed, L. Campbell-Savours, L. Kinnock of Holyhead, B. Triesman, L. Allenby of Megiddo, V. Clancarty, E. Kirkhill, L. Tunnicliffe, L. [Teller] Alton of Liverpool, L. Clark of Windermere, L. Knight of Weymouth, L. Turnberg, L. Anderson of Swansea, L. Clarke of Hampstead, L. Krebs, L. Turner of Camden, B. Andrews, B. Clinton-Davis, L. Lea of Crondall, L. Wall of New Barnet, B. Bach, L. Cohen of Pimlico, B. Liddell of Coatdyke, B. Wheeler, B. Bakewell, B. Collins of Highbury, L. Liddle, L. Whitaker, B. Bassam of Brighton, L. Corston, B. Lipsey, L. Whitty, L. [Teller] Cunningham of Felling, L. Low of Dalston, L. Wigley, L. Beecham, L. Davies of Coity, L. McAvoy, L. Wilkins, B. Berkeley, L. Davies of Oldham, L. McConnell of Glenscorrodale, Williams of Elvel, L. Bhattacharyya, L. Davies of Stamford, L. L. Wills, L. Bilston, L. Dean of Thornton-le-Fylde, McDonagh, B. Wood of Anfield, L. Blackstone, B. B. Macdonald of Tradeston, L. Woolmer of Leeds, L. Blood, B. Donaghy, B. McFall of Alcluith, L. Worthington, B. Boateng, L. Donoughue, L. Borrie, L. Drake, B. NOT CONTENTS Boyd of Duncansby, L. Drayson, L. Bradley, L. Dubs, L. Aberdare, L. Alderdice, L. Bragg, L. Eatwell, L. Addington, L. Anelay of St Johns, B. [Teller] Brennan, L. Elder, L. Adebowale, L. Armstrong of Ilminster, L. Brooke of Alverthorpe, L. Elystan-Morgan, L. Ahmad of Wimbledon, L. Astor of Hever, L. 1695 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1696

Attlee, E. Garden of Frognal, B. Marlesford, L. Sheikh, L. Avebury, L. Gardiner of Kimble, L. Mawhinney, L. Shephard of Northwold, B. Baker of Dorking, L. Gardner of Parkes, B. Mayhew of Twysden, L. Shipley, L. Barker, B. Geddes, L. Meacher, B. Shutt of Greetland, L. [Teller] Bates, L. German, L. Methuen, L. Skelmersdale, L. Benjamin, B. Glasgow, E. Miller of Chilthorne Domer, Slim, V. Berridge, B. Glenarthur, L. B. Smith of Clifton, L. Best, L. Glendonbrook, L. Miller of Hendon, B. Soulsby of Swaffham Prior, L. Bew, L. Glentoran, L. Montrose, D. Spicer, L. Black of Brentwood, L. Gold, L. Morris of Bolton, B. Stair, E. Blackwell, L. Goodhart, L. Moynihan, L. Stedman-Scott, B. Blencathra, L. Goodlad, L. Murphy, B. Steel of Aikwood, L. Bonham-Carter of Yarnbury, Goschen, V. Naseby, L. Stevens of Ludgate, L. B. Green of Hurstpierpoint, L. Neville-Jones, B. Stewartby, L. Boothroyd, B. Greengross, B. Newby, L. Stirrup, L. Boswell of Aynho, L. Greenway, L. Newlove, B. Stoddart of Swindon, L. Bottomley of Nettlestone, B. Griffiths of Fforestfach, L. Newton of Braintree, L. Stoneham of Droxford, L. Bowness, L. Hamilton of Epsom, L. Northover, B. Storey, L. Bridgeman, V. Hamwee, B. Norton of Louth, L. Stowell of Beeston, B. Brinton, B. Hanham, B. O’Neill of Bengarve, B. Strathclyde, L. Brittan of Spennithorne, L. Hannay of Chiswick, L. Oppenheim-Barnes, B. Swinfen, L. Broers, L. Harries of Pentregarth, L. Palmer, L. Taverne, L. Brooke of Sutton Mandeville, Henley, L. Palmer of Childs Hill, L. Taylor of Holbeach, L. L. Higgins, L. Patel, L. Tenby, V. Brougham and Vaux, L. Hill of Oareford, L. Perry of Southwark, B. Teverson, L. Browne of Belmont, L. Hodgson of Astley Abbotts, Phillips of Sudbury, L. Thomas of Gresford, L. Browning, B. L. Plumb, L. Thomas of Walliswood, B. Burnett, L. Home, E. Popat, L. Thomas of Winchester, B. Buscombe, B. Hooper, B. Ramsbotham, L. Tombs, L. Butler-Sloss, B. Howard of Rising, L. Randerson, B. Tope, L. Byford, B. Howe, E. Rawlings, B. Trefgarne, L. Caithness, E. Howe of Aberavon, L. Reay, L. Trenchard, V. Campbell of Alloway, L. Howell of Guildford, L. Redesdale, L. Trimble, L. Cathcart, E. Hunt of Wirral, L. Rees-Mogg, L. True, L. Chester, Bp. Hussain, L. Renfrew of Kaimsthorn, L. Trumpington, B. Chidgey, L. Hussein-Ece, B. Renton of Mount Harry, L. Tugendhat, L. Clement-Jones, L. Inglewood, L. Ribeiro, L. Tyler, L. Colville of Culross, V. James of Blackheath, L. Richardson of Calow, B. Tyler of Enfield, B. Colwyn, L. James of Holland Park, B. Risby, L. Ullswater, V. Condon, L. Jay of Ewelme, L. Roberts of Conwy, L. Verma, B. Cope of Berkeley, L. Jenkin of Kennington, B. Roberts of Llandudno, L. Waddington, L. Cormack, L. Jenkin of Roding, L. Rodgers of Quarry Bank, L. Wade of Chorlton, L. Cotter, L. Jolly, B. Rogan, L. Wakeham, L. Courtown, E. Jopling, L. Rowe-Beddoe, L. Wallace of Saltaire, L. Craig of Radley, L. Kakkar, L. Ryder of Wensum, L. Wallace of Tankerness, L. Crathorne, L. Kerr of Kinlochard, L. St John of Bletso, L. Walmsley, B. Crickhowell, L. Kilclooney, L. Saltoun of Abernethy, Ly. Walton of Detchant, L. Cumberlege, B. King of Bridgwater, L. Sanderson of Bowden, L. Warnock, B. Dannatt, L. Knight of Collingtree, B. Sassoon, L. Warsi, B. De Mauley, L. Kramer, B. Scott of Needham Market, B. Wasserman, L. Dear, L. Laming, L. Seccombe, B. Watson of Richmond, L. Deben, L. Lamont of Lerwick, L. Selborne, E. Wei, L. Denham, L. Lawson of Blaby, L. Selkirk of Douglas, L. Wheatcroft, B. Dholakia, L. Levene of Portsoken, L. Selsdon, L. Wilcox, B. Dixon-Smith, L. Lexden, L. Shackleton of Belgravia, B. Williams of Crosby, B. Dobbs, L. Lingfield, L. Sharkey, L. Williamson of Horton, L. Doocey, B. Linklater of Butterstone, B. Sharp of Guildford, B. Willis of Knaresborough, L. Dundee, E. Liverpool, E. Sharples, B. Wolfson of Sunningdale, L. Dykes, L. Loomba, L. Shaw of Northstead, L. Younger of Leckie, V. Eaton, B. Lucas, L. Eccles, V. Luce, L. 4.58 pm Edmiston, L. Luke, L. Elton, L. Lyell, L. Emerton, B. Lytton, E. Baroness Thornton: My Lords, I apologise to the Empey, L. Macdonald of River Glaven, House for the confusion that has just reigned. I blame Erroll, E. L. the Liberal Democrats for that, but then I would, Exeter, Bp. Macfarlane of Bearsden, L. wouldn’t I? The noble Lord, Lord Clement-Jones, Falkner of Margravine, B. MacGregor of Pulham decided to seek to amend my amendment. Then, when Faulks, L. Market, L. Fearn, L. Maclennan of Rogart, L. I said that I would like to accept his amendment, he Feldman of Elstree, L. McNally, L. refused to allow me to do so. What can a girl do when Flight, L. Maddock, B. she has been rejected in this way? My Amendment Fookes, B. Magan of Castletown, L. 163BZZA is the lead amendment in the relevant group. Forsyth of Drumlean, L. Maples, L. It is very disappointing that the Liberal Democrats Fowler, L. Mar and Kellie, E. Framlingham, L. Marks of Henley-on-Thames, did not feel confident enough to vote for their own Fraser of Carmyllie, L. L. amendment, again. They seem to be making a habit of Freud, L. Marland, L. that. 1697 Health and Social Care Bill[LORDS] Health and Social Care Bill 1698

Lord Clement-Jones: My Lords, perhaps I may address issues regarding Monitor. The amendment intervene. Has the noble Baroness received legal advice suggests that Monitor should continue to be the on the benefits of a Pepper and Hart-type statement independent regulator of NHS foundation trusts. versus the kind of amendment that her party has Our Amendment 167B would remove Clause 63. It tabled, its effectiveness and the width of the statement might be easier if I were to explain why that amendment made by the Minister? is there. It is not that we are necessarily opposed to Monitor’s functions as a regulator of social care, but Baroness Thornton: The noble Lord, Lord Clement- something as important as this matter should be done Jones, has a very legalistic manner of addressing the not through regulations but in a proper manner through House. Of course I understand exactly what was primary legislation. That is the only reason why that happening there, and I understand exactly what the amendment is there and we seek the Minister’s views deal was between his Benches and the Minister, which on it. was that the noble Lord would get a strong statement Returning to the amendment, Monitor must remain in response to his amendment. Is he satisfied with it? If as the independent regulator of foundation trusts. We so, he is wrong. That strong statement means that the do not believe that now is the time to relax oversight of protection comes when legal action starts to take foundation trusts. We can be confident that the Francis place. I would prefer the protection to be in the Bill. inquiry will have views on this. We support trusts That is what these amendments are about—protecting becoming foundation trusts, but only half of trusts the NHS. We disagree about that and the noble Lord have achieved foundation status, and the issues facing knows it. If I may address the Liberal Democrat those unable to achieve the required standard remain. Benches, it seems likely that the noble Lord’s spring There is yet another drop-dead date; my Government conference will agree more with me than with him. had a drop-dead date and that did not work; we do not However, that is his party’s problem for this weekend—not think that another drop-dead date will change that ours, for now, on the Bill. situation. I should like to make two further remarks on the We must also be cautious in overclaiming the merits substantive amendment and what the noble Earl said. of the foundation trust model, because time will tell. He suggested that we were making the procurement Monitor has an important role in that, which should rules more complex. We were not; we were making continue, although we do not support the need for an them simpler. The NHS deserves protection in the Bill. economic regulator for our NHS, because we do not The Liberal Democrats have made a deal that sells the see healthcare as a market. I do not intend to rehearse NHS short, as happened on the issue debated last those arguments, but patients are not consumers, and week on conflict of interest. That is a great shame. choice for patients is not shopping. Economic regulation and privatisation are certainly linked in the view of Lord Clement-Jones: I apologise for interrupting those who want to break up our NHS—many of those the noble Baroness, but does she realise that the more who want the Bill in the private sector. she attacks us, the more chances we have of a very The Bill is radical, not evolutionary. We believe that positive outcome at our Gateshead conference? the Government should have taken a different approach, but it is important that Monitor continues to carry out Baroness Thornton: I was not actually attacking the its role. It should not be asked to do two roles: those of noble Lord; I was just speculating about what might the foundation trust regulator and the economic regulator happen. I feel for Liberal Democrat Peers when they for the NHS. We think that that presents Monitor with go to their conference this weekend, because they may an insurmountable conflict of interests and that it be in for an uncomfortable time. However, that is lacks the capacity and capability to carry out the absolutely not my business. I will just witness it with enhanced role. I hope that the Minister will accept our interest. It is time that we moved on and I beg leave to sequencing idea—I freely confess that it was stolen withdraw the amendment. from the noble Baroness, Lady Williams, who first used the word sequencing— which is to allow Monitor Amendment 163BZZA withdrawn. to become an economic regulator only after it completes the job of authorising all those bodies which will get Amendment 163BZA not moved. foundation trust status after a few years’ oversight. We believe that Monitor should take on those new duties and roles only at that point, May 2016, which is Clause 60 : Monitor in the Bill. Even for supporters, there is a realisation that Part 3 Amendment 163BA is a direct challenge to the idea that local commissioners will be free to shape local services as they see fit. The Moved by Baroness Thornton more we have patient choice, the more we have any 163BA:Clause 60, page 87, line 31, at end insert— qualified provider, the more regulatory enforcement “(c) is to continue as regulator of NHS Foundation Trusts around competition, the less need for commissioners. as set out in Chapter 5 of Part 2 of the National Health That is the central irony of the Bill. Any commissioner Service Act 2006.” needs to read Clauses 19 and 73. I think we need a discussion about Monitor’s roles Baroness Thornton: My Lords, this is a large group and functions. I will wait until I sum up to comment of amendments led by our amendment. In fact, we on other noble Lords’ amendments in the group. I beg have only two amendments in the group, but they to move. 1699 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1700

Lord Warner: I speak to Amendment 164 in my issue, which itself comprises a considerable advance in name, which is in this group. It returns to the issue I the position that we have had up till now. I shall not raised in Committee: the need for Monitor to produce try to get into that debate because it is complicated an early report on the barriers to entry for new providers and I think that it would be better conducted a little of services to the NHS. Although he had sympathy later in the light of the various proposals. with what I was trying to do, the Minister did not like I want to say a word about competition, and it is my previous amendment, which would have required appropriate to do so given that the noble Lord, Lord Monitor to produce a report within 12 months of Warner, has just been speaking. He has always spoken Royal Assent on barriers to NHS entry to new providers. with some courage on this issue, which I recognise is I think that he accepts that there are barriers to entry not exactly popular with his party. However, I say for new providers which we need to tackle. In this quite directly that I feel very strongly that we have amendment, I have added the words “identifying and” allowed the issue of competition to become quite to the requirement in Clause 61(3) for Monitor to different from the reality that we have encountered in prevent anti-competitive behaviour. the Bill, in this House and from the argument that is I recognise that many people in this House and in going on outside. That is because we have tried to treat the Commons do not share my view on the virtues of competition as an absolute—either we have a competitive competition when used selectively for patient benefit. I market for the National Health Service or we have no will not go over all the ground again, but I think there competition at all—and we all know that to be false. is good evidence—the noble Earl cited some of it in We all know that there is a role for competition but an earlier discussion—that that has proved beneficial the argument is about how limited it should be, what it to patients. Moreover, the UK is almost unique in should be addressed to and whether it is then balanced large advanced healthcare systems in enshrining monopoly by, for example, equally strong duties in relation to public providers of hospital services, with little challenge co-operation, integration and the bringing together of to their efficiency or effectiveness. These NHS monopolies services. I think we all recognise that competition can have been very good at erecting barriers to entry for make a significant contribution in innovation and newcomers and ensuring—if I may put it as unkindly bringing in new ideas. For example, we have only to as this—a quiet life for monopoly incumbents. look at the recent developments in the treatment of We should be concerned about this. Only last week stroke victims and victims of heart conditions to see there were some startling statistics in the Health Service that there has often been an innovatory role for the Journal about non-foundation trusts’ poor performance private sector. However, many of us also believe, as I in achieving savings requirements in line with the certainly do, that the National Health Service should Government’s targets. I have no problems with the continue to be primarily a public service, that it should Government setting those targets for non-foundation be available free of charge and that it should be trusts to improve their efficiency. None the less, however accessible to all. Therefore, competition must exist but we frame the competition provisions in this legislation, essentially it must be balanced by other considerations we have to face the fact that it is extremely difficult for which, in the case of what we have been discussing new entrants to dislodge incumbents in many of these recently, are clearly of great significance—particularly services where the performance is poor. That is why in the role of the integration of services and the role of my view Monitor should, after the Bill receives Royal co-operation, which in terms of our main priorities, Assent, quickly identify clearly existing barriers to entry including the care of the elderly, are absolutely central so that they can be dismantled in the public interest. and crucial. The Co-operation and Competition Panel has already identified some of the barriers for new entrants to 5.15 pm the NHS market—and, again, I make no apology for talking about an NHS market. It is important that we If we can get the debate on to those issues, what will see healthcare, in part, as a market where new providers the outcomes be and what will the practical effects can provide better services and different types of services be? We may then be able to contribute to a National more effectively. Health Service which remains a public service but which is also capable of advancing and moving in I hope that the Government will look sympathetically innovatory and new directions. Frankly, that is what at this modest amendment to try to get Monitor on many of us on our Benches and, to be fair, many on the case of identifying barriers to entry. other Benches—the Labour Benches, the Cross Benches and the Conservative Benches—want to see as well. I Baroness Williams of Crosby: My Lords, I have two am thoroughly fed up with reading pieces on social amendments in this group, Amendments 163C and network sites, such as Twitter, which have presented 166B, which also stand in the name of my noble friend this debate in terms of how we voted on the last Lord Marks. However, before I address those relatively amendment and if we did not vote for it then we must short amendments, I should like to say a word or two be in favour of the marketisation of the NHS. That is about the broader issues that we have been discussing. simply absurd and it makes me very angry. It adds to I begin by perhaps giving a little comfort to the what has become a silly debate, a fictional debate noble Baroness, Lady Thornton, by saying that my which has led a great many people to believe that what understanding is that we will be discussing the whole is being discussed here is not at all what is being issue of the relationship of Monitor to foundation discussed, but some other strange, nightmare battle trusts later in the proceedings. Our amendment on this between marketisers and publicisers and no possible matter, which is not far removed from hers, addresses compromise can properly be reached between the two. an amendment to the government amendment on this I feel very strongly about that. I am fed up with 1701 Health and Social Care Bill[LORDS] Health and Social Care Bill 1702

[BARONESS WILLIAMS OF CROSBY] vary depending on the patients they are dealing with. reading about how I am actually a secret marketiser, Good care should treat the patient and their experience when I know perfectly well that I am not. Many others in the context of their life, social support relationships, may feel the same way. Let us turn back to the rather cultural experience, gender and a range of other factors, limited procedure in my own amendments, as I do not and the services should support people to live productive, wish to waste the time of House. independent lives in their own homes for as long Our amendments are quite simple and appropriate. as possible. Patients, including older patients, must On the basis of what is in the Health Act 2006, they have access to specialist services, including in-patient, say that it should be possible to insist that Monitor acute care when appropriate. Again, that will require says, in statements, precisely what it has done in terms collaboration between homecare services, in-patient of two of the 2006 Act’s main objectives. The first of services and step-down services to rehabilitate people those is a comprehensive health service—here we go—and in their homes. There will be a wide range of providers I am delighted to see the noble Baroness, Lady Jay, in of all those services. her place. She built the commitment to a comprehensive Population health needs and inequalities must be health service right back in the initial constitutional considered at the planning stage. Even doing that will structures of the NHS and, in my view, for that we are require close collaboration between those doing the all greatly in her debt. The second addresses the issue assessments. The tariff should reflect the complexity of the quality of health services across the board. A of clinical care and should encourage integration and statement should be made by Monitor on both those collaboration between providers. The danger exists at points. That is the first of our amendments. the moment of a tariff structure that does not reflect The second of our amendments states that, those clinical complexity but overcompensates for simple statements having been made, guidance should be conditions and for those where there is a discrete issued by Monitor to ensure that they are implemented episode of care, and does not recognise ongoing and become the case. Again, I think that it is an complexity. The tariff must work toward commissioning unexceptional amendment. It takes very seriously the across the whole patient pathway. Information and mandate that many of us in this House have attempted: data gathered around patients and clinical services to enrich and embolden an essential weapon or tool should also reflect that. I hope that the amendment for setting out the objectives of the NHS from the will make sure that the need for collaboration occurs Secretary of State in each year. Effectively, these at every level across providers, because at the end of amendments say that Monitor shall make the statements; the day Monitor will have the responsibility for licensing that Monitor shall ensure that those statements are all providers. carried out; and that it will do that within the structure The other reason for the amendment is that there and on a mandate, with the Secretary of State’s overall will be times when competition and collaboration objectives, that will be reflected and clear. That is might appear not to be one and the same, and may exactly what we want. We want clear objectives, agreed indeed look to be in conflict. My concern is that unless by all; we want a commitment by the House and by there is a requirement for collaborative behaviour, it many beyond it, including the professional bodies, to will be all too easy for the justification for commissioning do exactly those things. We want a comprehensive to be based more on competition than on collaboration. health service, directed towards increasing and improving In the balance of doubt, patients need to know that quality; directed towards accepting innovation that there is collaboration between their providers. There will not threaten the health service but enrich it; have been examples in social care and in the delivery directed, not least, to dealing with the inequalities that of healthcare in care homes where integration could still exist; and directed to ensuring that we address certainly have improved, for example, the unacceptable them in a wholehearted and determined spirit. I beg level of medication errors. Collaboration is going on to move. among a variety of agents and stakeholders to develop practical solutions and an integrated approach to Baroness Finlay of Llandaff: My Lords, I have medication safety in care homes. Public health, too, Amendment 165 in this group. It is designed to prevent requires the three arms of health improvement, health anti-collaborative behaviour in the provision of healthcare protection and healthcare delivery to work together, services for the purposes of the NHS. Promoting and will be very dependent on collaboration with collaboration and integration must be at least as powerful, other aspects of the NHS. if not more so, than preventing anti-competitive behaviour. Perhaps I might take this opportunity briefly to We are well aware that no two patients are the same correct a piece of information that I gave to the House and, to date, all too often professional boundaries— in our previous debate and which turned out to be a whoever is the person providing the care—have created little out of date—for which I apologise. It related to barriers. Those are very evident between primary and troops coming back from our theatres of war, where secondary care and can prevent a seamless patient the provision of prosthetics has improved. This is an experience. example of good collaboration between all agencies, This is not an amendment to prevent different which has been underpinned by the military covenant providers coming together. Its aim is to ensure that that the Government supported and instigated in whoever those providers are, whether they are NHS, legislation. The result has been an improvement in the whether they are from the voluntary sector or whether care of those who are extremely vulnerable. they are from social care, they must collaborate for the I hope that the House, and the Minister in particular, benefit of each individual patient. Therefore, the ways will see that there is a need to make sure that collaboration in which they will need to be able to collaborate will is driven forward between all providers, wherever they 1703 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1704 are and wherever they come from, so that the NHS and that there will be consultation on its content. The and its principles can be underpinned for the benefit intention, as I understand it, is that the guidance will of patient outcomes. require PPI in monitoring the impact of planning decisions or proposals to require the views of patient Baroness Cumberlege: My Lords, I, too, tabled an representatives and their carers. Perhaps my noble amendment in this group. Before I speak to it, I will friend will confirm this. We also discussed the role of say that I very much support what the noble Baroness, the NHS Commissioning Board in making sure that Lady Finlay, said. I was interested in an article in the clinical commissioning groups enforce the model contract BMJ that she, too, may have seen. It was a report by clauses on PPI against private providers. This is important Nigel Hawkes on how competition works in healthcare as they do not have the statutory PPI duty that NHS and how it can stimulate the provision of better services. providers have. He went on to say: I think it is the Government’s intention to create a “The report dismisses claims that competition makes integrated level playing field for patients and the public to influence care impossible or that the opening of tendering a service to ‘any qualified provider’ amounts to privatisation of the NHS”, private providers who are under contract to the NHS and that, in the same way that they can influence NHS providers. “evidence suggests that competition with regulated prices”— Can my noble friend assure me that that is the case? That would be very helpful, particularly as providers which is what we are proposing— may challenge statutory guidance as burdensome under “can produce higher quality care at the same cost—and without leading to increasing inequity in access to care. Our message is the duty of autonomy in Clause 4 as amended. that competition can help the NHS, but proceed with care”. It is “proceed with care”that many of us want. Although 5.30 pm I support the idea of competition, the National Health In contrast to this clearer PPI framework for providers Service is not a free-for-all but a regulated market. and commissioners, currently Monitor may decide I think we need competition. Looking at the summary unilaterally what type and level of involvement, if any, scores of the seven nations surveyed on health system is needed in its decision-making against unspecified performance, which have often been mentioned in criteria. If it decides that no involvement is needed, earlier debates in this House, we do very well compared there are no criteria on which this can be challenged, with other developed countries, but when it comes to even by the Secretary of State. patient-centred care, we come last—seventh. That is Monitor’s primary duty in Clause 61 is, really why competition is necessary: to make the health “to protect and promote the interests of people who use health service much more sensitive to the needs of patients. care services”, I appreciate that noble Lords must label me the having regard to the 11 matters listed in the clause, greatest bore on earth, but I am going to continue to including quality of and access to services. Government bore because I am going to relate Monitor to the Amendments 193 and 194 are very welcome in bringing duties for patient and public involvement. This amendment Monitor’s role closer to the patient’s interest, including introduces the same definition and scope of involvement health inequalities and quality of service. However, for Monitor as Amendment 142, which I moved earlier it seems illogical to recognise that providers and on Report, on duties for NHS commissioners, including commissioners of services need enforceable statutory public and private providers. guidance on how to involve patients in deciding what On 16 February, I received a letter from my noble is best for them, when they have been trying to do it friend Lord Howe on patient and public involvement, for 11 years with mixed success, whereas Monitor is and since then I have had some useful meetings with expected to become immediately expert and have total him. The context of this amendment is that patient discretion without any criteria against which that discretion and public involvement must be robust as we are is to be exercised. Perhaps my noble friend could give moving towards a stronger, more plural market, which me the assurances I seek. I support. Patient and public involvement is an even more indispensable component in a market where the Lord Walton of Detchant: My Lords, I will briefly consumer role is split between commissioners, who speak to Amendment 167 in this group, which has hold the money, and patients who consume the service. been tabled in the name of the noble Lord, Lord Hunt PPI must bridge this gap for the market to work well, of Kings Heath. I understand entirely why he has tabled as patient choice will never apply to some NHS services. this amendment but, with respect, I do not believe that Given its pivotal role in the reformed NHS, it is it is necessary. vital that Monitor has a PPI duty that is consistent All medical bodies, including the BMA and the with that of the providers it is regulating. The Bristol General Medical Council and others, now agree that Royal Infirmary public inquiry 11 years ago led to the the days of doctor’s orders are long past. The practice statutory PPI duty and its report specifically mentioned of medicine is a partnership in which it is up to the regulators in the list of bodies that should have this doctor to recommend to the patient what course of duty, so Clause 61(7) is very welcome. However I do action is most appropriate in the patient’s best interests; not feel that the wording of Clause 61 goes far enough what it is appropriate to do in order to reach a diagnosis; to achieve the Bristol recommendation that regulators, what tests are appropriate in order to achieve that “must involve the public in their decision-making processes, as diagnosis; and what course of treatment would then they affect the provision of healthcare by the NHS”. be necessary. However, it is up to the patient to decide On the broader PPI duty, my noble friend helpfully whether or not to accept that advice and it is not clarified at our meeting that statutory guidance will be possible for a doctor to carry out a test without the used to describe what is reasonable in terms of PPI informed consent of the patient. 1705 Health and Social Care Bill[LORDS] Health and Social Care Bill 1706

[LORD WALTON OF DETCHANT] comprehensive health service. The amendment allows It is also well agreed by these medical bodies that if the Secretary of State to publish guidance to Monitor a doctor has given full and detailed information to a on the objectives specified in his mandate to the board patient about the course of action that is appropriate, and to set out guidance on how those objectives are and if the doctor recommends a particular course of relevant to the separate work carried out by Monitor. treatment that he regards as being necessary in the Monitor is, of course, required to have regard to such patient’s best interests, the patient may nevertheless guidance. have the right to refuse that advice even if refusal of Amendments 173A to 173C empower the Secretary that advice ends in the patient’s death. For that reason, of State to give guidance to Monitor in line with any as all of these issues have been dealt with repeatedly in guidance that he has published under new Section 13E the advice given by the GMC, the BMA and other of the 2006 Act. That is the so-called outcomes document bodies, I do not believe that this amendment is necessary. issued by the Secretary of State to the board in connection with securing continuing improvement in the quality Baroness Barker: My Lords, the noble Lord, Lord of services and outcomes achieved by the health service. Walton, will be aware of many occasions in this house— These amendments make it incumbent on Monitor when the noble Lord, Lord Hunt, was Minister and to have regard to that guidance, which must also be some of us were in opposition—when we listened to published and laid before Parliament. Amendment 163C Lord Weatherill speaking on behalf of Christian Scientists, concerns reporting by Monitor so that in its annual who often wish to refuse treatment. I understand that report Monitor would be required to state what it did this amendment originated from the Christian Scientists, to comply with the guidance, envisaged by these who merely wish to draw again to the attention of the amendments, given by the Secretary of State in relation medical authorities the fact that they have a belief to the exercise of its functions. system that deserves the same amount of dignity and These are modest but important amendments. They respect as any other. Perhaps he might view the seek to weave into the fabric of the Bill a clear role for amendment in that light. the Secretary of State to give strategic guidance to Monitor in line with the Secretary of State’s overarching Lord Hunt of Kings Heath: My Lords, I do indeed duties, in particular with the objectives set out by the recall the debates that we had during one of the many Secretary of State in his annual mandate to the board, health and social care Bills that have gone through and in line with the outcomes document that he publishes your Lordships’ House in the past few years. It was that is designed to ensure the board’s performance of indeed Lord Weatherill who raised the issue with me. its duty to secure improvement in the quality of services. Essentially, it was about standards in nursing homes These amendments are part of creating a coherent where there was some concern that an insensitive and consistent framework within the new structures regulator would take action against a home that was established by the Bill, to ensure a single and purposive actually respecting the wishes of a member of the approach by all the bodies within the NHS, with the Christian Science religion. We were able to reach a Secretary of State remaining in charge of setting the satisfactory solution. An appropriate amendment was strategic objectives for the service. In those circumstances put forward and I think the noble Earl, Lord Howe, I suggest that they are very welcome. was also part of what I like to think of as the “second Weatherill agreement”. We may need another one in a Baroness Meacher: My Lords, I rise with some couple of years’ time—who knows? I ask the Government trepidation, not having been involved in Committee for an assurance that the position that we then agreed on this Bill but having been upstairs in Grand Committee will continue under the new Bill. on another Bill. I therefore have not done the learning that I know noble Lords around the House have done Lord Marks of Henley-on-Thames: My Lords, I will during that process. speak briefly, in addition to what my noble friend Many noble Lords have referred to the term Lady Williams of Crosby said, to the amendments in “competition”without distinguishing between competition our names concerning the Secretary of State giving within the NHS between public sector organisations guidance to Monitor: Amendments 163C, 166B, 173A, and competition between public sector and private 173B and 173C. sector organisations. It is perhaps relevant for me to These are further amendments concerning the role quote recent research by Zack Cooper and colleagues of the Secretary of State and are intended to ensure at the London School of Economics. It came out in that the Secretary of State has a practical and effective February, since Committee, which is my justification influence over Monitor’s overall approach to the work for introducing research at this late stage of the Bill. it does. The Secretary of State would exercise that That research looked at competition between public influence by issuing statutory guidance to Monitor service NHS organisations on the one hand, starting that will have to be published and laid before Parliament. in 2006, and between the different forms of organisation, The guidance in each case could be revised but the the private and the public, on the other hand, starting revised guidance would also have to be published and in 2008. laid before Parliament. This considerable research looked at 1.8 million The heart of the scheme is Amendment 166B. The patients, 161 public sector hospitals and 162 private duty referred to in that amendment under Clause 61(9) sector hospitals and should be taken seriously. It showed is the duty on Monitor to exercise its functions consistently that the result of public sector competition was a with the Secretary of State’s duty to promote a reduction in lengths of stay both pre-surgery and 1707 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1708 post-surgery. Those results were significant. As the not revolve around just what one might call private Minister knows, I support strongly competition in the and public. I am the chief executive of a social enterprise public sector. I really believe that human beings thrive organisation, which some might consider to be a new on competition. Therefore, if the research showed that entrant into the health and social care market. However, public and private sector competition worked, I would in substance misuse and learning disabilities, it is a support it because I believe in the best possible service significant, historical provider of services to members for patients. of the community and the provision of long-term This research also shows that when you look at the condition management. competition between the private and public sector The debate around competition becomes polarised organisations, you will find an increase in the length of very quickly, as has been pointed out in earlier stay in the public services, albeit that there perhaps is contributions to this debate. I am in favour of competition. a marginal improvement financially. If you look at the It seems to be currently the case in the NHS that we whole policing and monitoring apparatus that you have competition. I am concerned about the way in need in far greater proportions once you have all this which the market is managed. Let me illustrate this competition, I am not sure that you would even achieve with an example: it is possible for a new entrant into a a financial benefit. However, you find a reduction in care market—say, delivery of community health services quality, most particularly for people with long-term —with very little experience in that market to win a conditions. That is why I needed to speak in this debate. substantial contract against an incumbent provider I hope that whatever happens on these amendments, with vast experience and an excellent track record great care will be taken to protect public service provision. simply because the interpretation of the way in which If we do not prevent the cherry picking, which happened procurement rules need to be managed means that in the provisions studied by this research and has that not-for-profit provider gets ruled out. That happened occurred in other settings examined by research, without recently in reference to the provision of community any question we will achieve a two-tier service with the health services in Surrey and the Surrey nurses. private sector cherry picking the easier and healthier The safeguards that I want to see in regard to patients and the public sector having the complex care. competition are those that protect public taxpayers’ I know that this issue will have been rehearsed at money in the procurement of health and social care length in Committee. I do not want to go on further services. Again, we tend to concentrate on hospitals, but it is important that we do not just use the word surgery and related issues. These days, the health “competition” without clearly differentiating the service is as much about what happens in the community. competition that we are talking about. I am concerned that we have safeguards in place to protect health and social care services from new Lord Ribeiro: For clarification, perhaps the noble incumbents with a poor track record, or no track Baroness would say whether we are dealing with apples record, which can bid at or below cost and win simply and pears here. She made reference to the private because the procurement rules rule out not-for-profit sector and chronic care whereas she said specifically providers who may not be able to access capital. I refer that the earlier 2006 report related to surgery. My to the intention of this Government to bring in laws understanding is that quite a lot of the competitive that would encourage social value and social enterprise. work done in the NHS involved ISTCs. These contracts It would be helpful for the House to be reminded were held by private practitioners and private companies. that the players in the health and social care market I have not read this report but we need clarification as are no longer just public and private. The market has to whether we are dealing with a level playing field of to be managed in favour of a mixed economy and in NHS provision or whether this is NHS provision favour of retaining resources in the public realm that against private provision. could be pulled out in a simple battle between private capital and public service. I hope that my contribution Baroness Meacher: I am grateful to the noble Lord has made sense and I apologise for keeping the House. for his intervention. I was trying to conflate a number of points. The research that came out in February has Lord Turnberg: I shall speak in support of Amendment to do with surgery but the point is that those findings 165 in the name of the noble Baroness, Lady Finlay of support earlier studies which looked at a mixed public- Llandaff. This amendment is designed to ensure that private market by Allen and Gertler in 1991 and Ellis Monitor encourages integration and collaboration. In and McGuire in 1986 and others. Their research also all that, it is important that Monitor ensures that the showed that if you have private and public services operation of the system of payment by tariffs does not competing with each other, you will see the cherry interfere with that integration and, at worse, adds to picking and the detriment to the long-term conditions the costs of the health service. to which I have referred. I am sorry that I slightly I shall give two examples of where the tariff system skipped a few things and compounded them into one. might be counterproductive. The first is in relation to The findings are absolutely consistent whether they the hospital admission of a patient who goes home, is are concerned with surgery or other settings. readmitted and may be readmitted several times. It is in the hospital’s financial interest to have these episodes 5.45 pm of care because it gets paid by the tariff each time the Lord Adebowale: My Lords, I had not planned to patient comes in. There is no inducement in the hospital speak in this debate but, having heard the contributions to try to enlist social services. I am sure that it does, of many noble Lords, it is important perhaps to but the system works against that and tends to promote indulge in reminding the House that competition does readmission as a way of earning money. 1709 Health and Social Care Bill[LORDS] Health and Social Care Bill 1710

[LORD TURNBERG] organisations to deliver services in both acute care The second concerns patients who are in the hospital and for long-term conditions has been helpful. I have for one condition and develop a condition relevant to no difficulty thinking of dozens of situations where another consultant. For example, a patient may come commissioners have decided to commission services in in with an orthopaedic problem such as a broken hip, areas where there has been collaboration between a and then develop an acute episode of diabetes, so group of service providers. They may involve social care there is a need to call for a diabetologist to look after services, residential care homes being run independently the patient’s diabetes. That requires a rather tortuous and so on. Commissioners might seek to put together consultation process which involves a second episode an improved ortho-geriatric service especially for people and a further payment by the tariff system. Those are with multiple disabilities in later life. There are examples two obvious and common examples of where integration of successful collaborative services which have been is interfered with by the system we are operating. competitively tendered for. However, I do not want to I know that the Government are not keen to change take up the time of the House at this stage by mentioning that sort of system, but there must be ways for Monitor too many examples. to look at it critically and see whether the current tariff I have a question to ask of the Opposition in relation system can be made to work better than it does at the to Amendment 163BA. This is the first amendment in moment. I hope that the noble Earl will be able to the group, and perhaps the noble Baroness, Lady comment on that. Thornton, could help me in one respect. I am not quite clear whether this amendment would return Baroness Wall of New Barnet: Perhaps I may contribute Monitor to the position it is in now—where we would to the debate solely on the comments that have just continue with the two-tier system of foundation trusts been made by my noble friend. As regards the first and other trusts with a simple economic regulator for instance he mentioned, that is no longer the case. If foundation trusts—and would rule out the rest of the someone is brought back into hospital with the same new economic regulation functions. If it has that disease or illness, no tariff is paid. As far as I am effect, it would seriously wreck the main purpose of concerned, that is certainly the guidance we have had the Bill. However, I may well be reading it incorrectly, from the Department of Health and it is being applied. so before I decide which way to go, I wonder whether It is still the case with regard to the second example— the noble Baroness, Lady Thornton, could reassure I guess quite rightly. But from my experience as the me that that is not the purpose of the amendment. chair of a foundation trust—my noble friend Lord Hunt is nodding in agreement—if someone is admitted Earl Howe: My Lords, there is a clear purpose to again with the same illness there is a presumption that Part 3. It is to strengthen sector regulation of healthcare they were not dealt with properly in the first place. As in England by building and improving on Monitor’s a result, the treatment has to be carried out under the existing role as the regulator of foundation trusts. It first tariff and no additional tariff is granted. does that in three main ways. First, it makes clear that Monitor’s overriding duty would be to protect and Lord Turnberg: My Lords, I wonder whether I could promote patients’ interests. Secondly, it makes sector comment on that. It depends on the timescale between regulation more comprehensive by extending Monitor’s admissions. If it is longer than two months, I think remit to all providers of NHS services. Thirdly, it that you get a second shot. makes sector regulation more effective in realising benefits for patients; for example, by monitoring the Baroness Murphy: My Lords, this is a disparate NHS Commissioning Board setting fairer prices for group of amendments. I support the principles that NHS services. Fair pricing is important for a whole underline Amendments 164, 165 and 166. The Bill has host of reasons: to strengthen incentives for improvement, been amended since the Committee stage and may to enable better integration and to reduce the risk of address some issues, and that is one of the difficulties cherry picking. when we discuss competition, collaboration, integration I shall deal with a simple point. Monitor will continue and co-operation. We will have yet another amendment as the regulator of NHS foundation trusts. The Bill later today or on Thursday from the Government on makes that crystal clear in Chapter 1. However, I am the duty of co-operation that will further strengthen most grateful to my noble friend Lord Clement-Jones the role of Monitor in regard to these issues. That, for highlighting the need for greater clarity on what I think, will meet some of the arguments. intervention powers Monitor would have over foundation My feelings are consonant with those of the noble trusts on an enduring basis as against what would be Baroness, Lady Williams. I am furious at some of the transitional. I shall say more about that when we come debates in the press about whether we are marketeers to debate his amendments in a later group. or pro-NHS. In fact, the vast majority of people in Before going on, let me address Amendment 167 this House steer a course in order to do what is in the from the noble Lord, Lord Hunt, on the specific issue best interests of patients in terms of competition, of patients’ rights to refuse consent for treatment in collaboration and integration. I acknowledge that many the NHS. I can absolutely assure the noble Lord that of us must feel the same as the noble Baroness in her these rights must be protected and nothing in the Bill frustration about that. would change that. The intervention of my noble friend Lord Adebowale Returning to Part 3 and the role of Monitor, its was helpful in that it reminded us of how competition overarching duty will be to promote economy, efficiency has worked in mental health services and substance and effectiveness in the provision of healthcare while misuse services. For many years collaboration between maintaining or improving quality for the benefit of 1711 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1712 patients. I underline those last words. This is the single also have a duty to enable integration where this would overarching purpose for which Monitor would carry improve quality or reduce inequalities. Again, that reflects out all its functions, including its continuing functions the recommendations of the Future Forum and the under the NHS Act 2006 as the regulator of foundation amendments made in another place. The noble Baroness, trusts. Monitor’s overarching duty is clear, unequivocal Lady Finlay,made points in her amendment with which and focused on improving outcomes for patients. I I completely agree. The Bill, as she knows, is already stress that point since as this is its guiding principle for clear that commissioners will have a duty to secure that resolving potential conflicts, there is no need to separate services are provided in an integrated way where that Monitor into two organisations, as the noble Baroness, would improve quality and outcomes or reduce Lady Thornton, proposes in her amendment. I suggest inequalities. Monitor’s role is to support commissioners that she has raised an issue that in reality is not a in this by enabling integration and encouraging substantive one. co-operation. In a later group of amendments, we will Let me briefly address Monitor’s role in ensuring come to government Amendments 193, 194 and 195, that where there is competition in the provision of which would establish express power for Monitor to healthcare it operates in the interests of patients. We will set and enforce licence conditions for the purpose of have an opportunity to consider this issue in more detail enabling integration and co-operation. I hope that the later. Decisions on whether and when to use competition noble Baroness will take comfort from that and feel will be a matter for clinical commissioners. As I have able to support those amendments when we get to them. already said, there have always been private and voluntary It is important to remember that Monitor will work providers in the NHS. Anyone who reads Part 3 will with the Commissioning Board to design tariffs which see that it does not create markets for NHS services, best incentivise high-quality patient care, including despite what some others have said. This is not the through integration. That brings me to the point made same Bill as that which was debated in the Committee by the noble Baroness, Lady Meacher. The Bill addresses of the House of Commons in March 2011. It has the situation where a private provider could cherry-pick changed significantly as a result of amendments tabled the most profitable services to deliver, leaving an NHS by the coalition in response to the NHS Future Forum. hospital with the most complex procedures. It requires Monitor and the NHS Commissioning Board to take 6pm account of variations in the range of services provided Of course, as I made clear earlier, we already have by different providers, and the complexity of the needs some competition in the NHS. Indeed, this was increased of patients treated, to ensure a fair level of pay for under previous Labour Governments; for example, providers. As a result, providers undertaking only the with the independent sector treatment centre programme more simple interventions would be paid a suitably in 2004 and the introduction of “any willing provider” lower price. We are not seeking to stop providers in 2008. This was followed up with guidance published choosing which services to deliver; the issue is making in March 2010 which made it clear that there should sure that they are paid a fair price for each of them. If not be preferential treatment of public bodies over prices accurately reflected the cost of services, private independent providers of NHS services. I have placed providers simply would not have the incentive to cherry- a copy of that guidance in the Library for noble Lords pick and damage the viability of other providers. who are interested. Where commissioners decide to use competition to Baroness Meacher: Lower prices may be determined increase choice and improve NHS services, this Bill for simpler procedures, but this matter is far more seeks to strengthen how that is regulated so as to complicated than that. If a lot of the simpler procedures protect patients’ interests. Nothing in this Bill would are creamed off, the public sector institution may not extend competition to particular services or privatise be viable, which the research again shows. It is not NHS institutions. Nor would the Bill force commissioners straightforward. People concerned with long-term and to tender services or enable Monitor to impose that, as complex conditions fear that over time such a differential the earlier amendments to which I referred make clear. organisational and pricing structure could lead to a On the contrary, regulations under Part 3 would provide two-tier system. for commissioners, not Monitor, to decide when, how or if to use competition as a tool for improving services. That is the right thing to do because these Earl Howe: My Lords, it is a concern that I understand. decisions should be made locally, driven by patients’ The destabilisation of the NHS will naturally be a needs and priorities for improving quality. concern to all commissioners, which is why they can We have, however, listened to the concerns that protect that situation through the contract. They could people raised about the emphasis on competition in insist through the contract that a provider provided the Bill, as it was originally drafted, and we responded the full range of services rather than a select few. I to them by making changes to make it clear that simply say to the noble Baroness that we are alive to Monitor will not have a duty to promote competition. that concern and I have no doubt that commissioners This reflects recommendations of the NHS Future will be as time goes on. Forum that competition in the NHS should be used On the amendment tabled by the noble Lord, Lord only as a means to an end in improving services, never Warner, he will be disappointed to hear that I am not as an end in itself. drawn to going any further than the Bill does, much as Monitor’s role in regulating competition in the I understand that his idea is well-intentioned. I say NHS would be limited to addressing anti-competitive that because of Monitor’s overarching duty to protect behaviour that harmed patients’ interests. It would patients’ interests and prevent anti-competitive behaviour 1713 Health and Social Care Bill[LORDS] Health and Social Care Bill 1714

[EARL HOWE] I stress once again that the purpose of Part 3 is to that would harm those interests. This amended duty strengthen sector regulation in healthcare to protect reflects what the Future Forum recommended and it is and promote patients’ interests. The current system is right that we stick with that. I can, however, offer the inadequate, fragmented and duplicative. It fails to noble Lord, Lord Warner, some reassurance. First, in protect the interests of all patients. Part 3 recognises carrying out its duty to address anti-competitive behaviour, that the NHS is not and never has been a single Monitor will necessarily have to identify it. Secondly, institution. The reality of the NHS is a comprehensive Monitor would have the power under Chapter 2 of health service that has always been delivered by a Part 3 to conduct market studies and to refer potential diverse range of providers. barriers to new entrants for further investigation by Part 3 would address gaps in the current system by the competition authorities where necessary. I hope extending equivalent safeguards to protect patients’ that that is of some comfort also to the noble Lord, interests irrespective of who provides their NHS services. Lord Adebowale. It would also make sector regulation in the NHS more We had a most constructive debate in Committee effective in driving improvements and enabling integration about the Secretary of State’s accountability for securing during an absolutely crucial period of economic challenge. a comprehensive health service in England and his I am very happy to support the amendments of my role in holding Monitor to account for its duties. I noble friend Lady Williams, which would improve the thank my noble friend Lady Williams for proposing Bill, but I urge, following the reassurances and explanation an amendment which adds much to the Bill in this that I have been able to give, other noble Lords not to area. Clause 61 already requires Monitor to carry out press their amendments. its functions in a manner consistent with the Secretary of State’s performance of his duty to promote a Baroness Finlay of Llandaff: Before the Minister sits comprehensive health service. My noble friend’s down, will he answer a straightforward question in amendment would strengthen these provisions and relation to my amendment? Given that the Bill at thereby improve the Bill on a key issue. This would page 88 states, help to ensure that the Secretary of State can discharge effectively his responsibility for the health service in “functions with a view to preventing anti-competitive behaviour”, England and that Monitor carries out its functions to and my amendment, which is not being accepted, states, that end. I support my noble friend’s amendment. “functions with a view to preventing anti-collaborative behaviour”, Clause 64 specifies the range of matters that Monitor will the Minister confirm that that means that competition would be obliged to have regard to in carrying out its is trumping collaboration? duties. In Committee, the noble Baroness, Lady Murphy, and my noble friend Lady Williams raised some concerns Earl Howe: No. Collaboration, if it is in the interest about that list. I agreed to reflect on these concerns of patients, will always trump competition. and have tabled Amendments 168 to 171, which would rationalise the list and make it clear that maintaining Baroness Finlay of Llandaff: What instances are patient safety would be the paramount consideration. there of when collaboration has not resulted in improved I hope that the noble Baroness and my noble friend patient outcomes? I have not been able to find any. will be content with that rationalisation. On the amendment tabled by noble friend Lady Earl Howe: Nor have I, which is why I listed earlier Cumberlege, the Bill ensures that patient and public some prime examples of collaboration. Clinical networks involvement is embedded at every level of the healthcare are a prime example of collaborative behaviour which system. However, unlike the NHS Commissioning Board is clearly in the interests of patients. The noble Baroness and clinical commissioning groups, Monitor would is asking me to think of examples in my head of not be responsible for securing NHS services to meet collaborative behaviour in the NHS that does not patients’ needs. It is a regulator, with economic and advantage patients. I cannot think of any, which is more technical functions. Clause 61 reflects this and why it would be hard for Monitor to find fault with gives Monitor the responsibility for determining collaboration where it has clearly been designed to arrangements for patient and public involvement as improve patient care. appropriate to its functions. So I am afraid that I do not regard my noble friend’s amendment as appropriate. She asked what could be done if Monitor did not Baroness Thornton: In response to that last remark, involve patients in the right way. Well, the Secretary of it depends on whether Monitor decides it is collusion State would hold Monitor to account as to how it or collaboration. That is the key point. We suggested discharged its functions. Monitor would have to report that that was a problem right at the very beginning of to the Secretary of State on how it was discharging its the Bill—how you distinguish between collaboration duty on patient and public involvement as part of its and collusion and what you do about that. I do not annual report. The Secretary of State could also request think we are any closer to finding the answer. a specific report on how Monitor discharged this I turn to remarks that were made during the course function and intervene where there had been a significant of this very useful if diverse debate. I want to take one failure in meeting this duty. The Bill provides for moment to say something to the noble Baroness, Lady Healthwatch to send advice to Monitor as it seems Williams, and her colleagues and to the noble Baroness, appropriate. Monitor would then be required to respond Lady Murphy, about the fact that they feel misrepresented to this advice in writing. I hope that my noble friend in social and other media. Indeed, as politicians it goes will take comfort from those points. with the territory that you may be misrepresented 1715 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1716 from time to time. I have the greatest respect and Monitor to keep its current role. We believe that there admiration for the noble Baroness, Lady Williams, should be two bodies and that it is difficult for Monitor and she knows herself that that is where you are when to do both jobs at once, but it is important at this you are in politics. point of this first part of the Bill that we make it However, the noble Baroness herself wrote in an completely clear. Where the Bill says that Monitor article in the Guardian on 13 February about dropping should be the, the chapter on competition, and in a letter that the “Independent Regulator of NHS Foundation Trusts”, noble Baroness and her leader wrote to their own MPs we need to make it completely clear that it will continue and Peers, they set a high bar for how Part 3 of the Bill to do that job. might be made safe. It is just and proper that everybody We are not trying to weaken the role of Monitor. will be looking at the noble Baroness and her friends We think that foundation trusts are facing huge risks to see and test whether they have succeeded and met and huge reorganisation. They need the support that their own aspirations. At the moment, I think that that Monitor will offer them. I suspect that the Francis is open to question. I do not think that it has been report, as I said earlier, will indeed have something to achieved. I know that that might be painful, but that is say about the strength and importance of Monitor as the case. a regulator of foundation trusts. We would like this to We have had some thoughtful amendments and be in the Bill because it makes it completely clear that contributions. As usual, the noble Baroness, Lady this is an important job that Monitor does and that Finlay, in her amendment and questions put her finger it should keep doing that job for the foreseeable future. on a very important issue that the Bill needs to address I wish to test the opinion of the House. even at this late stage. I had a great deal of sympathy with the amendment of the noble Baroness, Lady 6.18 pm Cumberlege. I rather hoped that she would get a more positive response than she did and I am sorry about Division on Amendment 163BA that. Contents 183; Not-Contents 255. Baroness Williams of Crosby: The noble Baroness is perfectly entitled to say what she had said. I accept Amendment 163BA disagreed. that fully and I am sure that she said it in all sincerity. But the difference between us is that I believe that the Division No. 3 Government have moved a long way, particularly because of the Minister. I believe that that culmination of CONTENTS changes will enable us to bring about an improved Adams of Craigielea, B. Cunningham of Felling, L. NHS. I may be proved wrong. I freely accept that I Adonis, L. Curry of Kirkharle, L. may be proved wrong. But I believe that the changes Afshar, B. Davidson of Glen Clova, L. that have been made are so far reaching that we can Ahmed, L. Davies of Oldham, L. make the NHS better than it is today. I know that the Alton of Liverpool, L. Dean of Thornton-le-Fylde, noble Baroness, who herself has been responsible in Anderson of Swansea, L. B. her attitude towards the Bill, would wish to see that, Andrews, B. Donaghy, B. Armstrong of Hill Top, B. Donoughue, L. even though she may not think that this is the way to Bach, L. Drake, B. do it. Bakewell, B. Drayson, L. Bassam of Brighton, L. Dubs, L. Baroness Thornton: I am not sure whether this is the [Teller] Eatwell, L. Beecham, L. Elystan-Morgan, L. way to do it. We disagree. I do not think that the Berkeley, L. Evans of Parkside, L. Liberal Democrats have achieved it, but there we are. Bhatia, L. Evans of Temple Guiting, L. As the noble Baroness said, history will see who is Bhattacharyya, L. Evans of Watford, L. right and who is wrong. Bilston, L. Farrington of Ribbleton, B. Blackstone, B. Faulkner of Worcester, L. I am extremely pleased to see that the noble Baroness, Blood, B. Filkin, L. Lady Meacher, has transferred her attention from the Boateng, L. Finlay of Llandaff, B. Welfare Reform Bill to this one. She is quite correct Borrie, L. Foster of Bishop Auckland, L. that it is impossible to stop the negative impact that Boyd of Duncansby, L. Foulkes of Cumnock, L. has been observed in the studies that she referred to. Bradley, L. Gale, B. She is completely right about that. This whole debate Bragg, L. Gibson of Market Rasen, B. Brennan, L. Giddens, L. illustrates the problem: half of the Bill seems to be Brooke of Alverthorpe, L. Gilbert, L. there to mitigate the damage that the other half does. Brookman, L. Glasman, L. What used to be, for example, a clear duty to co-operate— Brooks of Tremorfa, L. Golding, B. and it was a simple duty—is now dense and complex. Browne of Belmont, L. Gordon of Strathblane, L. Browne of Ladyton, L. Goudie, B. Turning to our Amendment 163B, I should like to Cameron of Dillington, L. Gould of Potternewton, B. say to the noble Baroness, Lady Murphy, that it does Campbell-Savours, L. Grantchester, L. not rule out the economic regulator function. That Clancarty, E. Grenfell, L. amendment does not seek to do that, so I hope that Clark of Windermere, L. Grocott, L. the noble Baroness, with that reassurance, might support Clarke of Hampstead, L. Hameed, L. Clinton-Davis, L. Hanworth, V. our amendment. We seek to clarify and put beyond Cohen of Pimlico, B. Harris of Haringey, L. doubt that Monitor should have that function. We Collins of Highbury, L. Harrison, L. seek to do it in the first part of the Bill. We want Corston, B. Hart of Chilton, L. 1717 Health and Social Care Bill[LORDS] Health and Social Care Bill 1718

Haskel, L. Ouseley, L. Chidgey, L. Hussein-Ece, B. Haworth, L. Owen, L. Clement-Jones, L. Inglewood, L. Hayter of Kentish Town, B. Patel of Blackburn, L. Colville of Culross, V. James of Blackheath, L. Healy of Primrose Hill, B. Patel of Bradford, L. Colwyn, L. James of Holland Park, B. Henig, B. Pendry, L. Cope of Berkeley, L. Jenkin of Kennington, B. Hennessy of Nympsfield, L. Pitkeathley, B. Cormack, L. Jenkin of Roding, L. Hilton of Eggardon, B. Plant of Highfield, L. Cotter, L. Jolly, B. Hollick, L. Prescott, L. Courtown, E. Jopling, L. Hollis of Heigham, B. Prosser, B. Craig of Radley, L. Kakkar, L. Howarth of Newport, L. Radice, L. Craigavon, V. Kilclooney, L. Howells of St Davids, B. Ramsay of Cartvale, B. Crathorne, L. King of Bridgwater, L. Hoyle, L. Rendell of Babergh, B. Crickhowell, L. Knight of Collingtree, B. Hughes of Stretford, B. Cumberlege, B. Kramer, B. Hughes of Woodside, L. Richard, L. Rooker, L. Dannatt, L. Laming, L. Hunt of Kings Heath, L. De Mauley, L. Lamont of Lerwick, L. Jay of Paddington, B. Rosser, L. Rowlands, L. Dear, L. Lang of Monkton, L. Joffe, L. Deben, L. Lawson of Blaby, L. Royall of Blaisdon, B. Jones, L. Denham, L. Lexden, L. Jones of Whitchurch, B. Sawyer, L. Dholakia, L. Lingfield, L. Judd, L. Scotland of Asthal, B. Dixon-Smith, L. Linklater of Butterstone, B. Kennedy of Southwark, L. Sewel, L. Dobbs, L. Liverpool, E. Kennedy of The Shaws, B. Sherlock, B. Doocey, B. Loomba, L. King of Bow, B. Simon, V. Dundee, E. Luke, L. King of West Bromwich, L. Smith of Basildon, B. Dykes, L. Lytton, E. Kinnock, L. Smith of Finsbury, L. Eaton, B. MacGregor of Pulham Kinnock of Holyhead, B. Smith of Gilmorehill, B. Eccles, V. Market, L. Kirkhill, L. Smith of Leigh, L. Edmiston, L. McNally, L. Knight of Weymouth, L. Soley, L. Elton, L. Maddock, B. Lea of Crondall, L. Stair, E. Emerton, B. Magan of Castletown, L. Liddell of Coatdyke, B. Stern, B. Empey, L. Maples, L. Liddle, L. Stevenson of Balmacara, L. Erroll, E. Mar and Kellie, E. Lipsey, L. Stoddart of Swindon, L. Exeter, Bp. Marks of Henley-on-Thames, Low of Dalston, L. Stone of Blackheath, L. Falkner of Margravine, B. L. McAvoy, L. Symons of Vernham Dean, B. Faulks, L. Marland, L. McConnell of Glenscorrodale, Taylor of Bolton, B. Fearn, L. Marlesford, L. L. Temple-Morris, L. Feldman of Elstree, L. Masham of Ilton, B. McDonagh, B. Thornton, B. Fellowes, L. Mawhinney, L. Macdonald of Tradeston, L. Tomlinson, L. Fellowes of West Stafford, L. Mawson, L. McFall of Alcluith, L. Touhig, L. Fink, L. Mayhew of Twysden, L. McIntosh of Hudnall, B. Tunnicliffe, L. [Teller] Flight, L. Methuen, L. MacKenzie of Culkein, L. Turnberg, L. Fookes, B. Miller of Chilthorne Domer, Mackenzie of Framwellgate, Turner of Camden, B. Forsyth of Drumlean, L. B. L. Wall of New Barnet, B. Fowler, L. Miller of Hendon, B. McKenzie of Luton, L. Wheeler, B. Framlingham, L. Montgomery of Alamein, V. Mallalieu, B. Whitaker, B. Fraser of Carmyllie, L. Montrose, D. Martin of Springburn, L. Whitty, L. Freeman, L. Morris of Bolton, B. Massey of Darwen, B. Wigley, L. Freud, L. Moynihan, L. Maxton, L. Wilkins, B. Garden of Frognal, B. Murphy, B. Mitchell, L. Williams of Baglan, L. Gardiner of Kimble, L. Naseby, L. Monks, L. Williams of Elvel, L. Gardner of Parkes, B. Neville-Jones, B. Morgan of Ely, B. Wills, L. German, L. Newby, L. Morris of Aberavon, L. Wood of Anfield, L. Glasgow, E. Newlove, B. Morris of Handsworth, L. Woolmer of Leeds, L. Glendonbrook, L. Newton of Braintree, L. Nye, B. Worthington, B. Glentoran, L. Nicholson of Winterbourne, O’Neill of Clackmannan, L. Young of Norwood Green, L. Gold, L. B. Goodhart, L. Northover, B. NOT CONTENTS Goodlad, L. Norton of Louth, L. Goschen, V. Oakeshott of Seagrove Bay, L. Addington, L. Bonham-Carter of Yarnbury, Greengross, B. O’Neill of Bengarve, B. Adebowale, L. B. Greenway, L. Oppenheim-Barnes, B. Ahmad of Wimbledon, L. Boswell of Aynho, L. Hamwee, B. Palmer, L. Alderdice, L. Bottomley of Nettlestone, B. Hanham, B. Patel, L. Anelay of St Johns, B. [Teller] Bowness, L. Hannay of Chiswick, L. Patten, L. Astor, V. Bridgeman, V. Harries of Pentregarth, L. Perry of Southwark, B. Astor of Hever, L. Brinton, B. Harris of Richmond, B. Phillips of Sudbury, L. Attlee, E. Brittan of Spennithorne, L. Henley, L. Popat, L. Avebury, L. Brooke of Sutton Mandeville, Higgins, L. Powell of Bayswater, L. Baker of Dorking, L. L. Hill of Oareford, L. Randerson, B. Barker, B. Brougham and Vaux, L. Hodgson of Astley Abbotts, Rawlings, B. Bates, L. Browning, B. L. Razzall, L. Bell, L. Burnett, L. Home, E. Reay, L. Benjamin, B. Buscombe, B. Hooper, B. Redesdale, L. Berridge, B. Butler-Sloss, B. Howard of Rising, L. Rees-Mogg, L. Best, L. Byford, B. Howarth of Breckland, B. Renfrew of Kaimsthorn, L. Bilimoria, L. Caithness, E. Howe, E. Rennard, L. Black of Brentwood, L. Carlile of Berriew, L. Howell of Guildford, L. Renton of Mount Harry, L. Blackwell, L. Cathcart, E. Hunt of Wirral, L. Ribeiro, L. Blencathra, L. Chester, Bp. Hussain, L. Risby, L. 1719 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1720

Roberts of Conwy, L. Taylor of Holbeach, L. Baroness Finlay of Llandaff: In summing up after Roberts of Llandudno, L. Teverson, L. the previous debate, the Minister spoke about the service Rodgers of Quarry Bank, L. Thomas of Gresford, L. currently being fragmented and duplicative, and I Rowe-Beddoe, L. Thomas of Winchester, B. Saltoun of Abernethy, Ly. Tope, L. would agree that it is. I am glad that the Government’s Sanderson of Bowden, L. Trefgarne, L. intention is to have a service where healthcare providers Sassoon, L. Trenchard, V. collaborate more than they do at the moment. I accept Scott of Foscote, L. Trimble, L. that there will be a range of providers, and I support Scott of Needham Market, B. True, L. having a wide range of providers to provide a spectrum Seccombe, B. Trumpington, B. Selborne, E. Tugendhat, L. of services. However, I do not understand—and have Selkirk of Douglas, L. Tyler, L. not understood from the answers—why anti-collaborative Selsdon, L. Tyler of Enfield, B. behaviour should not be up there as a general duty for Shackleton of Belgravia, B. Ullswater, V. Monitor with anti-competitive behaviour. Because of Sharkey, L. Verma, B. that, and because of all the discussion that we have Sharp of Guildford, B. Waddington, L. Sharples, B. Wade of Chorlton, L. had over integration and collaboration, I feel that it is Shaw of Northstead, L. Wakeham, L. a duty that I have to those who wish to collaborate in Sheikh, L. Wallace of Saltaire, L. the NHS to test the opinion of the House, so that Shephard of Northwold, B. Wallace of Tankerness, L. there is equal status between anti-competitive and Shipley, L. Walmsley, B. anti-collaborative behaviour in the event of there being Shutt of Greetland, L. [Teller] Walpole, L. Skelmersdale, L. Walton of Detchant, L. a conflict between the two. Smith of Clifton, L. Warnock, B. Soulsby of Swaffham Prior, L. Warsi, B. Spicer, L. Wasserman, L. Earl Howe: I hoped that I had already made it clear Stedman-Scott, B. Watson of Richmond, L. to the noble Baroness that collaborative behaviour Stewartby, L. Wheatcroft, B. when it is in the interests of the patients—and I Stoneham of Droxford, L. Wilcox, B. distinguish that from collusive behaviour, which is Storey, L. Williamson of Horton, L. almost certainly not in the interests of patients—will Stowell of Beeston, B. Willis of Knaresborough, L. Strathclyde, L. Wolfson of Sunningdale, L. be regarded by Monitor as trumping the need for Sutherland of Houndwood, L. Younger of Leckie, V. competition to be deployed in services. I am not sure that I understand what the noble Baroness’s problem 6.33 pm is in this area; she should be reassured by that.

Amendment 163BC had been withdrawn from the Baroness Finlay of Llandaff: I am grateful to the Marshalled List. Minister for trying to clarify these matters, but my concern relates to anti-competitive and anti-collaborative being of at least equal status. I would prefer anti- Schedule 8 : Monitor collaborative to be on the face of the Bill. Is the Minister prepared to have a discussion with me after this debate to see whether we could insert some other Amendment 163C wording to prevent both anti-collaborative and anti- Moved by Lord Marks of Henley-on-Thames competitive behaviour? In that way, even when a provider states that it intends to collaborate and that is put 163C:Schedule 8, page 368, line 17, after “functions” insert— down clearly, if it is demonstrated as time goes on that “(b) include a statement of what it did to comply with the the provider is not fulfilling that, Monitor will have duty under section (Secretary of State’s guidance on duty the leverage to say that it was in open competition under section 61(9))(2) (duty to have regard to Secretary but the provider has not fulfilled the requirement to of State’s guidance on duty under section 61(9)), and collaborate. (c) include a statement of what it did to comply with the duty under section 64(1)(ja) (duty to have regard to Secretary of State’s guidance on relevant parts of document on improving quality of services).” Earl Howe: I am of course willing to hold discussions with the noble Baroness, but I remind her that we have explicitly provided for Monitor to use its licensing Amendment 163C agreed. powers to support integration and co-operation when that is in the interests of patients. We were fully aware of that issue when drafting the Bill. Later amendments, Clause 61 : General duties which we will debate today, will strengthen the ability of Monitor even further. Amendments 163D to 164 not moved. Baroness Finlay of Llandaff: I recognise that they Amendment 165 will strengthen Monitor further and that they will come later, but my disappointment is that they are not Moved by Baroness Finlay of Llandaff in the core general duties that will override all the way 165:Clause 61, page 88, line 5, at end insert— in which Monitor functions. They will come later on “( ) Monitor must exercise its functions with a view to preventing and in detail, and I can see that in the amendments anti-collaborative behaviour in the provision of health care services that the Government have tabled. But my concern for the purposes of the NHS.” persists, and I wish to test the opinion of the House. 1721 Health and Social Care Bill[LORDS] Health and Social Care Bill 1722

6.38 pm Radice, L. Thornton, B. Ramsay of Cartvale, B. Tomlinson, L. Division on Amendment 165 Rea, L. Tonge, B. Rendell of Babergh, B. Touhig, L. Richard, L. Tunnicliffe, L. Contents 171; Not-Contents 221. Rooker, L. Turnberg, L. Rosser, L. Turner of Camden, B. Amendment 165 disagreed. Rowlands, L. Wall of New Barnet, B. Royall of Blaisdon, B. Walpole, L. Sawyer, L. Wheeler, B. Division No. 4 Scotland of Asthal, B. Whitaker, B. Sewel, L. Whitty, L. CONTENTS Sherlock, B. Wigley, L. Adams of Craigielea, B. Hart of Chilton, L. Simon, V. Wilkins, B. Adonis, L. Haskel, L. Smith of Basildon, B. Williams of Baglan, L. Ahmed, L. Haworth, L. Smith of Finsbury, L. Williams of Elvel, L. Alton of Liverpool, L. Hayter of Kentish Town, B. Smith of Gilmorehill, B. Williamson of Horton, L. Anderson of Swansea, L. Healy of Primrose Hill, B. Smith of Leigh, L. Wills, L. Andrews, B. Henig, B. Stone of Blackheath, L. Wood of Anfield, L. Armstrong of Hill Top, B. Hennessy of Nympsfield, L. Symons of Vernham Dean, B. Woolmer of Leeds, L. Bach, L. [Teller] Taylor of Bolton, B. Worthington, B. Bakewell, B. Hollins, B. Temple-Morris, L. Young of Norwood Green, L. Bassam of Brighton, L. Hollis of Heigham, B. Beecham, L. Howarth of Newport, L. NOT CONTENTS Berkeley, L. Howells of St Davids, B. Bhattacharyya, L. Hoyle, L. Addington, L. Dobbs, L. Bilston, L. Hughes of Stretford, B. Ahmad of Wimbledon, L. Doocey, B. Blackstone, B. Hughes of Woodside, L. Alderdice, L. Dykes, L. Blood, B. Hunt of Kings Heath, L. Anelay of St Johns, B. [Teller] Eaton, B. Boateng, L. Jay of Paddington, B. Astor, V. Eccles, V. Borrie, L. Joffe, L. Astor of Hever, L. Edmiston, L. Bradley, L. Jones, L. Attlee, E. Elton, L. Bragg, L. Jones of Whitchurch, B. Baker of Dorking, L. Empey, L. Brennan, L. Judd, L. Barker, B. Exeter, Bp. Brooke of Alverthorpe, L. Kennedy of Southwark, L. Bates, L. Falkner of Margravine, B. Brookman, L. Kennedy of The Shaws, B. Bell, L. Faulks, L. Browne of Belmont, L. King of Bow, B. Benjamin, B. Feldman of Elstree, L. Chester, Bp. King of West Bromwich, L. Berridge, B. Fellowes of West Stafford, L. Clark of Windermere, L. Kinnock, L. Bew, L. Fink, L. Clinton-Davis, L. Kinnock of Holyhead, B. Black of Brentwood, L. Flight, L. Cohen of Pimlico, B. Kirkhill, L. Blackwell, L. Fookes, B. Collins of Highbury, L. Knight of Weymouth, L. Blencathra, L. Forsyth of Drumlean, L. Corston, B. Lea of Crondall, L. Bonham-Carter of Yarnbury, Fowler, L. Cunningham of Felling, L. Liddell of Coatdyke, B. B. Framlingham, L. Davidson of Glen Clova, L. Liddle, L. Boswell of Aynho, L. Freeman, L. Davies of Oldham, L. Lipsey, L. Bottomley of Nettlestone, B. Freud, L. Dean of Thornton-le-Fylde, Low of Dalston, L. Bowness, L. Garden of Frognal, B. B. McAvoy, L. Bridgeman, V. Gardiner of Kimble, L. Donaghy, B. McDonagh, B. Brinton, B. Gardner of Parkes, B. Donoughue, L. Macdonald of Tradeston, L. Brittan of Spennithorne, L. German, L. Drake, B. McIntosh of Hudnall, B. Brooke of Sutton Mandeville, Glasgow, E. Drayson, L. MacKenzie of Culkein, L. L. Glendonbrook, L. Dubs, L. Mackenzie of Framwellgate, Brougham and Vaux, L. Glentoran, L. Eatwell, L. L. Browning, B. Gold, L. Evans of Parkside, L. McKenzie of Luton, L. Burnett, L. Goodhart, L. Evans of Temple Guiting, L. Mallalieu, B. Buscombe, B. Goodlad, L. Evans of Watford, L. Martin of Springburn, L. Butler-Sloss, B. Goschen, V. Farrington of Ribbleton, B. Masham of Ilton, B. Byford, B. Greenway, L. Faulkner of Worcester, L. Massey of Darwen, B. Caithness, E. Hamilton of Epsom, L. Filkin, L. Maxton, L. Carlile of Berriew, L. Hamwee, B. Finlay of Llandaff, B. [Teller] Mitchell, L. Cathcart, E. Hanham, B. Foster of Bishop Auckland, L. Monks, L. Clement-Jones, L. Harris of Richmond, B. Foulkes of Cumnock, L. Montgomery of Alamein, V. Colwyn, L. Henley, L. Gale, B. Morgan of Ely, B. Cope of Berkeley, L. Higgins, L. Giddens, L. Morgan of Huyton, B. Cormack, L. Hill of Oareford, L. Gilbert, L. Morris of Aberavon, L. Cotter, L. Hodgson of Astley Abbotts, Glasman, L. Morris of Handsworth, L. Courtown, E. L. Golding, B. Myners, L. Craigavon, V. Home, E. Gordon of Strathblane, L. Nye, B. Crathorne, L. Hooper, B. Goudie, B. O’Neill of Clackmannan, L. Crickhowell, L. Howard of Rising, L. Gould of Potternewton, B. Owen, L. Cumberlege, B. Howarth of Breckland, B. Grantchester, L. Patel of Blackburn, L. Dannatt, L. Howe, E. Grenfell, L. Patel of Bradford, L. De Mauley, L. Howe of Idlicote, B. Grocott, L. Pendry, L. Dear, L. Howell of Guildford, L. Hameed, L. Pitkeathley, B. Deben, L. Hunt of Wirral, L. Hanworth, V. Plant of Highfield, L. Denham, L. Hussain, L. Harris of Haringey, L. Prescott, L. Dholakia, L. Hussein-Ece, B. Harrison, L. Prosser, B. Dixon-Smith, L. James of Blackheath, L. 1723 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1724

James of Holland Park, B. Rennard, L. (a) the objectives specified in the mandate published under Jenkin of Kennington, B. Renton of Mount Harry, L. section 13A of the National Health Service Act 2006 Jenkin of Roding, L. Ribeiro, L. which the Secretary of State considers to be relevant to Jolly, B. Risby, L. Monitor’s exercise of its functions, and Jopling, L. Roberts of Conwy, L. (b) the Secretary of State’s reasons for considering those Kakkar, L. Roberts of Llandudno, L. objectives to be relevant to Monitor’s exercise of its Kilclooney, L. Saltoun of Abernethy, Ly. functions. King of Bridgwater, L. Sassoon, L. (2) In exercising its functions, Monitor must have regard to Knight of Collingtree, B. Scott of Foscote, L. Kramer, B. guidance under subsection (1). Scott of Needham Market, B. Laming, L. Seccombe, B. (3) Where the Secretary of State publishes guidance under Lamont of Lerwick, L. Selborne, E. subsection (1), the Secretary of State must lay a copy of the Lang of Monkton, L. published guidance before Parliament. Lawson of Blaby, L. Selkirk of Douglas, L. (4) The Secretary of State— Lexden, L. Selsdon, L. Lingfield, L. Shackleton of Belgravia, B. (a) may revise guidance under subsection (1), and Linklater of Butterstone, B. Sharkey, L. (b) if the Secretary of State does so, must publish the Liverpool, E. Sharp of Guildford, B. guidance as revised and lay it before Parliament.” Loomba, L. Sharples, B. Luke, L. Shaw of Northstead, L. Lytton, E. Sheikh, L. Amendment 166B agreed. Maclennan of Rogart, L. Shephard of Northwold, B. Maddock, B. Shipley, L. Magan of Castletown, L. Shutt of Greetland, L. [Teller] Clause 62 : General duties: supplementary Maples, L. Skelmersdale, L. Marks of Henley-on-Thames, Smith of Clifton, L. L. Spicer, L. Amendment 166C not moved. Marland, L. Stair, E. Marlesford, L. Stedman-Scott, B. Mawhinney, L. Stewartby, L. Clause 63 : Power to give Monitor functions relating to Mawson, L. Stoneham of Droxford, L. Mayhew of Twysden, L. Storey, L. adult social care services Meacher, B. Stowell of Beeston, B. Methuen, L. Strathclyde, L. Amendment 167 not moved. Miller of Chilthorne Domer, Sutherland of Houndwood, L. B. Taylor of Holbeach, L. Miller of Hendon, B. Teverson, L. Amendment 167A Morris of Bolton, B. Thomas of Winchester, B. Moynihan, L. Tope, L. Moved by Baroness Finlay of Llandaff Murphy, B. Trefgarne, L. Naseby, L. Trenchard, V. 167A:Clause 63, page 89, line 34, at end insert— Neville-Jones, B. Trimble, L. “( ) Regulations may provide for Monitor to make the granting Newby, L. True, L. of a licence conditional upon performance in relation to matters Newlove, B. Tugendhat, L. set out as in section 64.” Newton of Braintree, L. Tyler, L. Nicholson of Winterbourne, Tyler of Enfield, B. B. Ullswater, V. Baroness Finlay of Llandaff: My Lords, some of the Northover, B. Verma, B. amendments in this group are in my name and that of Norton of Louth, L. Waddington, L. Oakeshott of Seagrove Bay, L. Wakeham, L. the noble Lord, Lord Northbourne, who is unable to O’Neill of Bengarve, B. Wallace of Saltaire, L. be in the House today because of ill health. They Oppenheim-Barnes, B. Wallace of Tankerness, L. relate to the transition of care between different sectors Patel, L. Walmsley, B. and build around the principle of integrated working. Patten, L. Warsi, B. Perry of Southwark, B. Wasserman, L. The problem that arises is that the responsibility for Popat, L. Watson of Richmond, L. care of children will sit with different groups. There is Randerson, B. Wheatcroft, B. a need to make sure that, when children make the Rawlings, B. Wilcox, B. transition from being the responsibility of social services Razzall, L. Willis of Knaresborough, L. to being the responsibility of the local authority and, Redesdale, L. Wolfson of Sunningdale, L. Renfrew of Kaimsthorn, L. Younger of Leckie, V. in adult care, of the clinical commissioning groups, there is adequate provision for how that handover occurs. A clear date for it should be set and it should 6.51 pm make explicit the duties for each party involved in handing on information. Without that, there is a concern that as these young people—many of whom will have Amendments 166 and 166A not moved. mixed mental, physical and social care needs—transition across, information about those needs may not adequately Amendment 166B pass from one agency to another. There is a concern that they may fall into a gap and that the responsibility Moved by Baroness Williams of Crosby at the time of transition will not be clear. We are also 166B:After Clause 61, insert the following new Clause— concerned that, without a clear, fixed date for the “Secretary of State’s guidance on duty under section 61(9) transition with a default time set in legislation, it will (1) The Secretary of State may, for the purpose of assisting be easy for a young person’s care to drop out of sight, Monitor to comply with its duty under section 61(9), publish particularly if they are not supported by people well guidance on— able to advocate on their behalf. 1725 Health and Social Care Bill[LORDS] Health and Social Care Bill 1726

[BARONESS FINLAY OF LLANDAFF] would improve the quality of those services, including Also in this group is Amendment 174A, which outcomes, and/or reduce inequalities in access to services concerns the general duties of Monitor and is in the and outcomes. The intention is, therefore, that it would name of the noble Baroness, Lady Young of Old be for commissioners to drive integration and co-operation Scone. She has asked me to speak to this amendment, between providers in the light of local circumstances which again emphasises the importance of integration and needs, and to enforce this through legally binding of services. Her concern is about diabetes but goes far contracts. This would apply equally, and perhaps all wider than that. Where there is a multiplicity of providers, the more importantly, in relation to the provision of how they work together will depend on how Monitor services for long-term conditions where multidisciplinary specifies service in the national tariff. Since patients care is required. with complex conditions require input from many different providers, there is a concern that, without a 7pm real emphasis in the Bill on provision being integrated, As we have heard, the job of Monitor is to protect they may end up being told that their care is not and promote patients’ interests. This will be the guiding the responsibility of one person or another. These principle for Monitor in resolving potential conflicts. amendments, which have been grouped together, seek However, hugely important as enabling integration is, clarity on the seamless provision of care. The principle it is a means to those ends, and we are not convinced behind them is to address those gaps that we have that it should supersede all other considerations. identified in that seamless provision of care. In respect of Amendment 174A, to which the noble I return to the amendments in my name and that of Baroness, Lady Finlay, has spoken on behalf of the the noble Lord, Lord Northbourne. We are well aware noble Baroness, Lady Young, we feel that the list at that it can be very difficult to differentiate between the Clause 65(5) must relate to Monitor’s functions and social and mental health needs of young people. For the impact on its overarching duty. The noble Baroness, that reason, we feel that it is important that transition Lady Finlay, is absolutely right that decisions on the is clarified. I beg to move. use of competition should take account of the potential impact on integration where this is needed to improve Lord Beecham: My Lords, we certainly support outcomes for patients, and the noble Baroness, Lady these amendments. I am particularly pleased by the Young, has emphasised the need for this as regards reference in Amendment 171A to the transfer of diabetes and other conditions. The Bill would place information between child and adult social care authorities, that responsibility on commissioners while ensuring which picks up a point that was raised in an earlier that they act transparently and can justify their decisions debate. These are sensible amendments, although there in the best interests of the patients. is an error in Amendment 238G, which refers to health The amendments in the names of the noble Lord, and welfare boards, instead of health and well-being Lord Northbourne, and the noble Baroness, Lady boards. On that not untypically pedantic note, I support Finlay, to which the noble Baroness has spoken, raise the amendments and trust that the Minister will give the wider issue of young people’s transition between them a favourable response. different services, including to adult services. We agree that all transitions should be managed as effectively Baroness Northover: My Lords, there is a clear as possible, and this is a vital area in which to get consensus on the importance of further integration integration right. The noble Baroness, Lady Finlay, is and more services being joined up around patients’ absolutely right about that. I am sure that your Lordships needs. The Bill seeks to encourage and enable the are aware that Sir Ian Kennedy’s review of children’s delivery of integrated services and contains strong services highlighted problems in handling the transition provisions to ensure that this takes place. We are from children’s to adult care, especially in mental placing a duty of integration on all bodies, including health and services for disabled children. We strongly clinical commissioning groups and health and well-being believe that there is a real opportunity to support boards, to ensure more joined-up provision of services young people moving through key transition points for patients, social care service users and carers. and into adult care. There are a range of interlocking Furthermore, all NHS bodies and private and third policies which we believe will result in more integrated sector providers supplying NHS services are required and personalised care for children. I hope that I may by the Health Act 2009 to take account of the NHS explain some of the stages involved in this. constitution in their decisions and actions. This includes Earlier I said that the Bill places integration duties the principle that the NHS works across organisational on all bodies. I should have said integration duties boundaries and in partnership with other organisations across the NHS. in the interests of patients, local communities and the Health and well-being boards will have a vital role wider population. as regards the stages in children’s care. The joint The Bill takes this further by making it clear that, in strategic needs assessments and joint health and well-being exercising any of their functions, commissioners must strategies drawn up by the local health and well-being act with a view to securing that services are provided board will ensure that local commissioners consider in a way that promotes the NHS constitution; and the needs of young people as they move into adulthood. with a view to securing continuous improvement in The boards will bring together the key agencies when outcomes, including effectiveness, safety and quality assessing, planning and commissioning local services. of patient experience. Commissioners must also exercise For example, in relation to children and young people, their functions with a view to securing that health each health and well-being board will have the local services are provided in an integrated way where this director of children’s services as a statutory member 1727 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1728 to ensure the needs of children and young people are the integration with educational needs as well as social taken into account. I hope that the noble Baroness, care needs and physical and mental health needs, with Lady Finlay, and the noble Lord, Lord Northbourne, a single point of assessment. I beg leave to withdraw will find that reassuring. As your Lordships may also the amendment. be aware, the current draft of the statutory guidance on the preparation of joint strategic needs assessments Amendment 167A withdrawn. and joint health and well-being strategies goes some way to highlighting points around integration and the Amendment 167B not moved. need to provide services for each stage of the life course. I assure the House that we will look to strengthen this further with a specific reference to the importance Clause 64 : Matters to have regard to in exercise of of considering needs of individuals during key transition functions points. YourLordships may also be aware that the Secretary of State has commissioned the development of a Amendments 168 to 171 children and young people’s health outcomes strategy. Moved by Earl Howe This strategy will seek to set out the outcomes that 168: Clause 64, page 90, leave out line 2 and insert— matter most to children and young people, and will describe the contribution that the different parts of “(1) In exercising its functions, Monitor must have regard, in particular, to—” the system need to make to support their successful implementation. The strategy is being informed through 169: Clause 64, page 90, line 3, at end insert— a children and young people’s forum, which brings “(2) Monitor must, in exercising its functions, also have regard together a wide range of people with a record of to the following matters in so far as they are consistent with the expertise and commitment to improving healthcare matter referred to in subsection (1)—” provision for children and young people. Children and 170: Clause 64, page 90, line 5, at end insert “and in the young people, including those with special educational efficiency of their provision” needs and disability, will be asked their views on the 171: Clause 64, page 90, line 6, leave out paragraph (c) outcomes that matter most to them. The transition to adult services has been identified as a key theme that Amendments 168 to 171 agreed. will have a special focus within the strategy’s development. The forum will report back to the Secretary of State Amendment 171A not moved. with its recommendations in the summer. Work is also under way to explore how to develop integration in practice. As part of the special educational Amendment 172 needs Green Paper Support and Aspiration, published Moved by Earl Howe in March 2011, the Department for Education together with the Department of Health has appointed 172: Clause 64, page 90, line 20, leave out paragraph (h) 20 pathfinder areas covering 31 local authorities, PCT clusters and emerging CCGs to test different ways of Amendment 172 agreed. improving care for children and young people in this category. Critically, this includes a single assessment Amendment 173 not moved. process and plan for education, health and care needs from birth up to the age of 25 for children and young people with a disability or special educational need. Amendments 173A to 173C All the pathfinders will address transition and how Moved by Earl Howe: children’s and young people’s needs and support can be joined together across all services. This will, of 173A: Clause 64, page 90, line 27, at end insert— course, include the transition from children’s to adult “(ja) where the Secretary of State publishes a document for social care. The learning from the pathfinder programme the purposes of section 13E of the National Health Service Act 2006 (improvement of quality of services), will be applied across all local areas as quickly as any guidance published by the Secretary of State on the possible. parts of that document which the Secretary of State In earlier debates we discussed the social care White considers to be particularly relevant to Monitor’s Paper. That will address integration and the reaction exercise of its functions,” to that will be coming forward. I understand and 173B: Clause 64, page 90, line 28, leave out paragraphs (k) to accept entirely the spirit of these amendments but I (m) hope that I have demonstrated our commitment to 173C: Clause 64, page 90, line 36, at end insert— integration. I am entirely certain that our existing “( ) Where the Secretary of State publishes guidance referred proposals and wider programme of work already address to in subsection (2)(ja), the Secretary of State must lay a copy of the underlying objective of these amendments. I hope the published guidance before Parliament. I have reassured noble Lords and that they will feel ( ) The Secretary of State— able to withdraw their amendments. (a) may revise the guidance, and (b) if the Secretary of State does so, must publish the Baroness Finlay of Llandaff: I am most grateful to guidance as revised and lay it before Parliament.” the noble Baroness for the assurances that she has given. I am particularly grateful to her for focusing on Amendments 173A to 173C agreed. 1729 Health and Social Care Bill[LORDS] Health and Social Care Bill 1730

Clause 65 : Conflicts between functions (ii) reduce inequalities between persons with respect to their ability to access those services, and Amendment 174 not moved. (iii) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services; Amendment 174ZA had been withdrawn from the (e) the likely future demand for health care services; Marshalled List. (f) the desirability of patient choice. (7) An NHS commissioner shall be entitled, as part of any Amendment 174A not moved. Commissioning Review, to seek expressions of interest from health services bodies or from NHS Foundation Trusts which may have an interest in providing such services, and shall be Clause 69 : Failure to perform functions entitled to undertake such processes as it shall consider appropriate to determine which of such bodies is able most appropriately to provide any such services. Amendments 175 and 176 (8) A Commissioning Review and decisions made following a Commissioning Review to make arrangements with one or more Moved by Earl Howe health services bodies or NHS Foundation Trusts shall not constitute 175:Clause 69, page 93, line 38, after “Monitor’s” insert “, anti-competitive behaviour for the purposes of this or any other other than a function it has by virtue of section 70 or 71,” Act. 176:Clause 69, page 94, leave out lines 8 and 9 and insert— (9) The Public Contracts Regulations 2006 shall not impose any obligations on an NHS commissioner which undertakes a “( ) For the purposes of this section— Commissioning Review or makes decisions to make arrangements (a) a failure to perform a function includes a failure to with one or more health services bodies or NHS Foundation perform it properly, and Trusts following a Commissioning Review. (b) a failure to perform a function properly includes a (10) Regulations under this section shall not impose obligations failure to perform it consistently with what the Secretary on an NHS commissioner undertaking a Commissioning Review. of State considers to be the interests of the health service (11) The NHS Commissioning Board may, after consultation in England or (as the case may be) with what otherwise with Monitor, publish guidance to NHS Commissioners concerning appears to the Secretary of State to be the purpose for Commissioning Reviews. which it is conferred; and “the health service” has the same meaning as in the National Health Service (12) The National Health Service Act 2006 shall be amended Act 2006.” by adding the following after section 9(4)(r)— “(s) An NHS Foundation Trust”.” Amendments 175 and 176 agreed. Baroness Thornton: I beg to move. Amendment 177 and 178 not moved. 7.09 pm

Clause 73 : Requirements as to procurement, patient Division on Amendment 178A choice and competition Contents 157; Not-Contents 203.

Amendment 178A Amendment 178A disagreed. Moved by Baroness Thornton Division No. 5 178A:Clause 73, page 96, line 30, at end insert— “(5) An NHS commissioner shall be entitled to undertake a CONTENTS review (“a Commissioning Review”) of all or any part of the health services that the NHS commissioner considers are reasonably Adams of Craigielea, B. Brookman, L. required in order to discharge its functions under this Act, and, Adonis, L. Browne of Belmont, L. upon completion of such a Commissioning Review, an NHS Ahmed, L. Browne of Ladyton, L. Commissioner shall be entitled to determine that the most appropriate Alli, L. Campbell-Savours, L. way to deliver all or any part of such services shall be through the Alton of Liverpool, L. Clancarty, E. conclusion of arrangements with one or more health services Anderson of Swansea, L. Clark of Windermere, L. bodies or one or more NHS Foundation Trusts. Andrews, B. Cohen of Pimlico, B. Bach, L. Collins of Highbury, L. (6) NHS Commissioners shall, when conducting a Commissioning Review, have regard to the following factors— Bakewell, B. Corston, B. Bassam of Brighton, L. Davidson of Glen Clova, L. (a) the need for NHS services to be provided in a way that is [Teller] Davies of Oldham, L. economic, efficient and effective; Beecham, L. Dean of Thornton-le-Fylde, (b) the need to commission services in a way that maintains Berkeley, L. B. or improves the quality of the services; Bhattacharyya, L. Donaghy, B. (c) the need to commission health services in a way that Bilston, L. Donoughue, L. promotes the integration of health and social care Blackstone, B. Drake, B. services; Blood, B. Drayson, L. Boateng, L. Dubs, L. (d) the need for health care services provided for the Borrie, L. Eatwell, L. purposes of the NHS to be provided in an integrated Boyd of Duncansby, L. Evans of Parkside, L. way where this will— Bradley, L. Evans of Temple Guiting, L. (i) improve the quality of those services (including the Bragg, L. Evans of Watford, L. outcomes that are achieved from their provision) or Brennan, L. Farrington of Ribbleton, B. the efficiency of their provision, Brooke of Alverthorpe, L. Faulkner of Worcester, L. 1731 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1732

Filkin, L. Masham of Ilton, B. Crathorne, L. McNally, L. Finlay of Llandaff, B. Massey of Darwen, B. Crickhowell, L. Maddock, B. Foster of Bishop Auckland, L. Maxton, L. Cumberlege, B. Magan of Castletown, L. Foulkes of Cumnock, L. Mitchell, L. Dannatt, L. Marks of Henley-on-Thames, Gale, B. Monks, L. De Mauley, L. L. Giddens, L. Montgomery of Alamein, V. Dear, L. Marland, L. Gilbert, L. Morgan of Ely, B. Deben, L. Marlesford, L. Glasman, L. Morris of Handsworth, L. Denham, L. Mawhinney, L. Golding, B. Myners, L. Dholakia, L. Mawson, L. Gordon of Strathblane, L. Nye, B. Dixon-Smith, L. Mayhew of Twysden, L. Goudie, B. O’Neill of Clackmannan, L. Dobbs, L. Methuen, L. Gould of Potternewton, B. Owen, L. Doocey, B. Miller of Chilthorne Domer, Grantchester, L. Patel of Blackburn, L. Eaton, B. B. Grenfell, L. Pitkeathley, B. Eccles, V. Miller of Hendon, B. Grocott, L. Plant of Highfield, L. Edmiston, L. Morris of Bolton, B. Hanworth, V. Prescott, L. Elton, L. Moynihan, L. Harris of Haringey, L. Prosser, B. Emerton, B. Murphy, B. Hart of Chilton, L. Ramsay of Cartvale, B. Empey, L. Naseby, L. Haskel, L. Rea, L. Exeter, Bp. Neville-Jones, B. Haworth, L. Reid of Cardowan, L. Falkner of Margravine, B. Newby, L. Hayter of Kentish Town, B. Rendell of Babergh, B. Faulks, L. Newlove, B. Healy of Primrose Hill, B. Richard, L. Feldman of Elstree, L. Newton of Braintree, L. Henig, B. Rooker, L. Fellowes of West Stafford, L. Nicholson of Winterbourne, Hennessy of Nympsfield, L. Rosser, L. Fink, L. B. Hollins, B. Royall of Blaisdon, B. Flight, L. Northover, B. Howarth of Newport, L. Sawyer, L. Fookes, B. Norton of Louth, L. Hughes of Stretford, B. Scotland of Asthal, B. Forsyth of Drumlean, L. O’Neill of Bengarve, B. Hughes of Woodside, L. Sewel, L. Fowler, L. Oppenheim-Barnes, B. Hunt of Kings Heath, L. Sherlock, B. Framlingham, L. Palmer, L. Hylton, L. Simon, V. Freeman, L. Patel, L. Jay of Paddington, B. Smith of Basildon, B. Freud, L. Patten, L. Jones, L. Smith of Finsbury, L. Garden of Frognal, B. Perry of Southwark, B. Jones of Whitchurch, B. Smith of Leigh, L. Gardiner of Kimble, L. Popat, L. Judd, L. Soley, L. Gardner of Parkes, B. Randerson, B. Kennedy of Southwark, L. Stevenson of Balmacara, L. German, L. Rawlings, B. Kennedy of The Shaws, B. Stoddart of Swindon, L. Glendonbrook, L. Razzall, L. King of West Bromwich, L. Stone of Blackheath, L. Glentoran, L. Redesdale, L. Kinnock, L. Symons of Vernham Dean, B. Goodlad, L. Renfrew of Kaimsthorn, L. Kinnock of Holyhead, B. Taylor of Bolton, B. Goschen, V. Rennard, L. Kirkhill, L. Temple-Morris, L. Hamilton of Epsom, L. Ribeiro, L. Knight of Weymouth, L. Thornton, B. Hamwee, B. Risby, L. Lea of Crondall, L. Tomlinson, L. Hanham, B. Roberts of Conwy, L. Liddell of Coatdyke, B. Touhig, L. Harris of Richmond, B. Roberts of Llandudno, L. Liddle, L. Tunnicliffe, L. [Teller] Henley, L. Sassoon, L. Lipsey, L. Turnberg, L. Higgins, L. Scott of Needham Market, B. McAvoy, L. Turner of Camden, B. Hill of Oareford, L. Seccombe, B. McDonagh, B. Wall of New Barnet, B. Hodgson of Astley Abbotts, Selborne, E. Macdonald of Tradeston, L. Wheeler, B. L. Selkirk of Douglas, L. McFall of Alcluith, L. Whitaker, B. Home, E. Selsdon, L. McIntosh of Hudnall, B. Whitty, L. Hooper, B. Shackleton of Belgravia, B. MacKenzie of Culkein, L. Wigley, L. Howard of Rising, L. Sharkey, L. Mackenzie of Framwellgate, Wilkins, B. Howe, E. Sharp of Guildford, B. L. Williams of Baglan, L. Howe of Idlicote, B. Shaw of Northstead, L. McKenzie of Luton, L. Wills, L. Howell of Guildford, L. Shephard of Northwold, B. Mallalieu, B. Wood of Anfield, L. Hunt of Wirral, L. Shipley, L. Martin of Springburn, L. Worthington, B. Hussain, L. Shutt of Greetland, L. [Teller] Hussein-Ece, B. Skelmersdale, L. NOT CONTENTS James of Blackheath, L. Smith of Clifton, L. James of Holland Park, B. Spicer, L. Addington, L. Bridgeman, V. Jenkin of Roding, L. Stair, E. Alderdice, L. Brinton, B. Jolly, B. Stedman-Scott, B. Anelay of St Johns, B. [Teller] Brittan of Spennithorne, L. Jopling, L. Stewartby, L. Astor, V. Brooke of Sutton Mandeville, Kakkar, L. Stoneham of Droxford, L. Astor of Hever, L. L. Kilclooney, L. Storey, L. Attlee, E. Brougham and Vaux, L. King of Bridgwater, L. Stowell of Beeston, B. Baker of Dorking, L. Browning, B. Knight of Collingtree, B. Strathclyde, L. Barker, B. Burnett, L. Kramer, B. Taylor of Holbeach, L. Bates, L. Byford, B. Laird, L. Teverson, L. Bell, L. Caithness, E. Lamont of Lerwick, L. Thomas of Winchester, B. Benjamin, B. Carlile of Berriew, L. Lang of Monkton, L. Tonge, B. Berridge, B. Cathcart, E. Lawson of Blaby, L. Trefgarne, L. Best, L. Clement-Jones, L. Lexden, L. Trenchard, V. Black of Brentwood, L. Colwyn, L. Lingfield, L. Trimble, L. Blencathra, L. Cope of Berkeley, L. Linklater of Butterstone, B. True, L. Bonham-Carter of Yarnbury, Cormack, L. Liverpool, E. Tyler, L. B. Cotter, L. Luke, L. Tyler of Enfield, B. Boswell of Aynho, L. Courtown, E. Lyell, L. Ullswater, V. Bowness, L. Craigavon, V. Maclennan of Rogart, L. Verma, B. 1733 Health and Social Care Bill[LORDS] Health and Social Care Bill 1734

Waddington, L. Wasserman, L. Enterprise Act—in particular, pointing out that the Wade of Chorlton, L. Wheatcroft, B. OFT has a duty under the Enterprise Act to look at Wakeham, L. Wilcox, B. relevant customer benefits. Wallace of Saltaire, L. Williams of Crosby, B. Wallace of Tankerness, L. The issue is that “customer” is not normally how Walmsley, B. Williamson of Horton, L. we describe patients in the NHS and the way that the Walpole, L. Wolfson of Sunningdale, L. NHS operates is rather different from considering Walton of Detchant, L. Younger of Leckie, V. whether Dixons taking over Comet, for instance, will impact on the customer or the consumer. There is a 7.22 pm difference. It seemed to me that the best way to handle the matter would be specifically to provide for Monitor to be inserted into the process so that it would give Clause 76 : Guidance specific advice to the OFT on those matters. Although the definition is “relevant customer benefits”, its Amendments 179 and 180 perspective would be on the impact on patients. Moved by Earl Howe I appreciate the earlier amendments which the noble Earl has tabled, but this would add the extra dimension 179:Clause 76, page 98, line 26, after “(1)(a)” insert “or (b)” to Clause 77 which will enable the OFT and Monitor 180:Clause 76, page 98, line 32, at end insert— to have a really powerful role in the way that they “( ) Before publishing guidance revised under subsection (4), oversee foundation trust mergers and, I think, settle Monitor must consult the persons mentioned in subsection (2).” some of the concerns which surround Clause 77 as drafted.

Amendments 179 and 180 agreed. Lord Beecham: My Lords, the amendments are a good example of the thickets and undergrowth of the elaborate structures to deal with competition generally Clause 77: Mergers involving NHS foundation trusts in the economy into which the health service is being drawn. I have no doubt that the noble Earl is right in Amendment 181 describing the amendments as technical; the amendment of the noble Lord, Lord Clement-Jones, is also technical. Moved by Earl Howe It is not the worse for that, but this whole area ought 181:Clause 77, page 98, line 34, leave out subsection (1) and to be removed from the Bill. Our Amendment 184A insert— would remove Clause 77 altogether. Our view is that “( ) For the purposes of Part 3 of the Enterprise Act 2002 that elaborate machinery and the use of the Office of (completed and anticipated mergers), each of the following cases Fair Trading is not appropriate for mergers of foundation is to be treated as being (in so far as it would not otherwise be) a trusts. Having said that, we do not intend to divide the case in which two or more enterprises cease to be distinct enterprises.” House; we simply deplore the fact that this machinery, somewhat refined by the amendments, is being cranked Earl Howe: My Lords, I speak also to Amendments 182 up to apply unnecessarily. and 183. There is one simple point to Clause 77: it is there to remove the current legal uncertainty and risk Earl Howe: My Lords, as I said earlier, retaining of double jeopardy for foundation trusts under the Clause 77 would have several substantial benefits. The UK’s existing general merger controls. The OFT already OFT already has jurisdiction to review foundation has jurisdiction to review foundation trust mergers trust mergers under the Enterprise Act. The problem, under the Enterprise Act, but there is legal uncertainty as I said, is that there is legal uncertainty as to when as to when that applies in individual cases. That creates that applies in individual cases. That creates the risk of the risk of double jeopardy for foundation trusts double jeopardy for foundation trusts, as their mergers under current arrangements, as their mergers are also are also reviewed by the Co-operation and Competition reviewed by the Co-operation and Competition Panel. Panel. There is also a problem of unnecessary duplication Amendments 181 to 183 are minor and technical of specialist skills between the Co-operation and amendments which make it clear that Clause 77 applies Competition Panel and the OFT which, incidentally, to both completed and anticipated mergers. I will reserve brings with it a cost to the UK taxpayer. my remarks on the other amendments in the group Retaining Clause 77 would avoid that duplication until I have heard the contributions of the noble Lords and eliminate the current legal uncertainty and risk of who are proposing them. Meanwhile, I beg to move. double jeopardy for foundation trusts. That would encompass mergers between two or more foundation Lord Clement-Jones: My Lords, I shall speak to trusts and acquisitions by a foundation trust of another Amendment 184. In Committee, we debated the role foundation trust or a private business, such as UCLH’s of the OFT in merger policy and looking into mergers acquisition of the London Heart Hospital under the between foundation trusts. I tabled an amendment previous Administration. because it seemed to me at the time that the Enterprise However, it is important for me to make it clear that Act was a relatively blunt instrument for the OFT to the Bill would prevent any takeover of a foundation use to look at those mergers, compared to the usual trust by a private company, contrary to what some way that it would look at the competitive effect or commentators outside this House have suggested. impact on competition of such a merger. The response Secondly, the OFT has a proven track record for of the noble Earl, Lord Howe, was extremely helpful light-touch, proportionate regulation of mergers and in guiding us through the relevant provisions of the ensuring good value for public money.By contrast, under 1735 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1736 the system we inherited from the previous Government, (3B) As soon as reasonably practicable after receiving a notification the Co-operation and Competition Panel has reviewed under subsection (3A), Monitor must provide the Office of Fair several mergers of community services at considerable Trading with advice on— cost and delay to the NHS that would have been (a) the effect of the matter under investigation on benefits (in permitted automatically under the OFT’s materiality the form of those within section 30(1)(a) of the Enterprise Act 2002 (relevant customer benefits)) for people who thresholds. use health care services provided for the purpose of the Finally, the approach provides better value for public NHS, and money by avoiding duplication of specialist resources (b) such other matters relating to the matter under between the OFT and Monitor. Mergers are a specialist investigation as Monitor considers appropriate.” area. Given the variable frequency of mergers in the NHS, it would be a far better use of resources to Amendment 184 agreed. consolidate the responsibility and expertise within the OFT, where they could also be put to good work for Amendment 184A not moved. the benefit of the wider economy, rather than resourcing another public body at the taxpayer’s expense. Clause 78 : Reviews by the Competition Commission 7.30 pm I reassure the House that the paramount consideration for the OFT in reviewing foundation trust mergers Amendment 185 would be the impact on patients’ interests. This would Moved by Earl Howe include, as a matter of necessity, considering the interests 185: Clause 78, page 99, line 5, leave out paragraph (a) and of patients in securing sustainable access to a insert— comprehensive health service. “(a) the effectiveness of competition in the provision of As part of any merger investigation, the OFT and health care services for the purposes of the NHS in the Competition Commission would engage with Monitor promoting the interests of people who use such services,” in order better to understand the services involved. In particular, the OFT would obtain Monitor’s view on how Earl Howe: My Lords, perhaps I may begin by a merger would benefit patients. These views would then clarifying the role of the Competition Commission as be considered in the analysis, along with representations set out in the Bill because I think that there have been from other stakeholders, including local health and a few misconceptions about this. The commission well-being boards, and other evidence. However, I would not enforce the Competition Act in relation to sympathise with concerns to ensure Monitor’s involvement healthcare services, nor would the commission’s role in advising the OFT and with the desire that this affect the applicability of competition law to the NHS, should be included in the Bill. and the Bill would not give the Competition Commission Amendment 184, proposed by my noble friend direct powers over providers of NHS services. Lord Clement-Jones, would ensure that evidence gathered Instead, the Bill would give the Competition in reviewing a merger involving a foundation trust Commission two narrow, specific roles in relation to would always include expert advice from a healthcare NHS services. First, the commission would be the regulator with an overriding duty to protect and promote independent adjudicator where sufficient providers or, patients’ interests. I thank my noble friend for what in some cases, commissioners objected to Monitor’s I think is an elegant solution and I hope that it will proposals for licence modifications or its methodologies allay any concerns that remain in the House in this to be used to calculate prices or levies for providers to area. I am pleased to tell him that I plan to support ensure the continuity of essential services. Amendment 184, as and when he comes to move it. I hope that, in the light of those reassurances, the Secondly, the Bill currently provides that the noble Lord, Lord Beecham, will feel able not to move commission would undertake reviews of the development his amendment. of competition in the provision of NHS services and the way that Monitor was fulfilling its functions relating Amendment 181 agreed. to the provision of such services. Where it concluded that something was or could be averse to the public Amendments 182 and 183 interest, it could make non-binding recommendations Moved by Earl Howe to the Secretary of State, Monitor or the NHS Commissioning Board. 182: Clause 77, page 98, line 37, leave out “have ceased” and insert “cease” I am aware of a concern that this wording could 183: Clause 77, page 98, line 40, leave out “have ceased” and imply that the review should focus the development of insert “cease” competition as an end in itself. That is absolutely not our intention. That is why commissioners will decide Amendments 182 and 183 agreed. when competition and choice will be used, and indeed whether it will be used, as a means of improving services Amendment 184 and enabling patients to have control of their care. To Moved by Lord Clement-Jones make that clear, we have tabled Amendment 185, which provides that the reviews relate to the effectiveness of 184: Clause 77, page 98, line 40, at end insert— “(3A) Where the Office of Fair Trading decides to carry out competition in realising benefits for NHS patients, an investigation under Part 3 of the Enterprise Act 2002 of a rather than the development of competition per se. matter involving an NHS foundation trust, it must as soon as I hope that noble Lords will agree that this wording reasonably practicable notify Monitor. provides clarity about the purpose of the reviews and 1737 Health and Social Care Bill[LORDS] Health and Social Care Bill 1738

[EARL HOWE] I have not put down amendments to the more is consistent with the principle that competition should technical areas where there is Competition Commission not be pursued as an end in itself. I therefore beg to involvement. It seems that in many cases that may well move Amendment 185. be relevant in terms of the tariff and so on. However, we on these Benches believe that Clauses 78, 79 and 80 are a throwback to pre-Future Forum days, and we Lord Clement-Jones: My Lords, it would seem therefore propose leaving them all out. convenient, although it alters the groupings, to talk to my Amendments 186, 187 and 188 at this point. Lord Newton of Braintree: My Lords, perhaps I In Committee—and I am very grateful to the noble may intervene briefly, if only to avoid withdrawal Lords, Lord Turnberg and Lord Patel, for supporting symptoms from not having spoken on any day this these amendments—we flagged our general concern week. I want to support my noble friend Lord Clement- about the risks of EU competition law being applied Jones on the general proposition without wishing in across the board in the health service. One risk that we any way to threaten mayhem if we do not get a considered to be high was the involvement to such a satisfactory reply. The House is well aware, as I have great extent in the Bill of the Competition Commission referred to it on a number of occasions, that last year and, in particular, its role in Clauses 78, 79 and 80, as I went through what turned out to be the trauma of well as its role in reviewing competition within the trying to engage in what was technically a takeover, health service and the development of competition by although we presented it as a merger, with the Monitor. neighbouring health trust. That involved Suffolk Mental On these Benches, we, along with Future Forum Health and Norfolk Mental Health. We finally achieved and following legal advice, believe that it is necessary it on New Year’s Day, so I am, so to speak, out and consistent to delete Clause 78, which provides for of work. a review of the exercise of Monitor’s functions and, as There was a real problem. One got the feeling that I said, the development of competition in the NHS. the people on the competition and collaboration panel, Government Amendment 185 would of course change or whatever it was called, which overlaps quite heavily this to a review of the effectiveness of competition with the Competition Commission, saw us in much in the NHS in promoting the interests of those who the same category—how can I put this without upsetting use the NHS. Nevertheless, we have considerable concerns anyone?—as two rival sellers of washing detergents. about the involvement of the Competition Commission. They did not recognise that health is not like that. The commission occasionally has to apply non- There were health issues, patient safety issues and commission principles in its investigations. It may quality of service issues that needed to trump the need to consider, for example, whether media plurality competition issues. I know that we have been told that would be undermined by a media merger. However, that will happen, but it is very important to make sure the commission members and staff are steeped in that the machinery will ensure that it happens and that competition law principles and it is difficult to get the health issues trump those narrower competition them to attribute equal weight to non-competition issues. All I seek from the Minister is an assurance objectives. The experience of those involved with the that, one way or another, that will be the case. commission is that it tends to focus far more on the competition analysis and is often reluctant to accept that it might be required to endorse an outcome that Baroness Hollins: My Lords, I would like some may be suboptimal from a competition perspective in reassurance that the regulation of competition will order better to promote other objectives. improve on the current situation in some circumstances. Judgments about whether competition or co-operation I do not know whether these amendments, or any best promote certain objectives, including health sector existing provision in the Bill, will achieve that. I have a objectives, are not clear-cut. Which side of the line couple of examples about which I feel uncomfortable. people come down on will depend on their standpoints First, I am keen to know whether adequate safeguards and assumptions about the extent to which competition are in place for the kind of situation that occurred in is helpful in general, as well as on their experience. Surrey, to ensure that the range of providers envisaged Regular commission members tend to have a strong by the Government will be able to compete on a level bias in favour of the benefits of competition, and that playing field. I remember the wise words of the economist strengthens our view on the inappropriateness of the Fritz Schumacher that sometimes “small is beautiful”. reviews by the Competition Commission. It is not Can the Minister tell the House on what basis it was necessary for there to be a review of this kind either of decided that a £10 million bond would be required as the NHS or of the operation of Monitor. Indeed, surety from bidders for the NHS contract tendered I would argue that its very presence in reviewing both last year for community services in south-west and the NHS and Monitor increases the risk of competition north-west Surrey? The winning tender was a private law applying more widely. company and the loser was Social Enterprise UK, Following Future Forum’s report, the purpose of which is currently providing services to central Surrey Monitor is no longer primarily to promote competition. but which did not have the £10 million in the bank. Clearly there is now explicit recognition of the overriding That organisation is providing high-quality community importance of the benefits to patients. This is the key services which have been acclaimed by the noble Lord’s determinant of which instrument—competition or own department. At the end of its three-year contract, integration—is appropriate in the operation of the will it simply be taken over by the large private company health service. which has more money in the bank? 1739 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1740

My second question relates to the culture within the In fact we think that there is no need to have any NHS and medical practice. Since the NHS began over mention of the Competition Commission in the Bill. 60 years ago, most doctors have worked primarily in For the sake of completeness, we would have preferred the NHS and used their clinical skills first and foremost those amendments to be included. Perhaps I may for NHS patients. There have been special contractual implore the Minister to accept them as well. arrangements in place to ensure that NHS specialists with a private practice do not neglect their NHS patients. I think it is fair to say that specialists with a Earl Howe: My Lords, Amendments 196A and thriving private practice usually put their extra energy 196B, tabled by the noble Baroness, Lady Thornton, into their private practice. They are not the ones who would remove the provision for adjudication if a significant contribute to managing and developing NHS services, proportion of those affected object to proposals by and nor do they usually make much contribution to Monitor for methodologies to be used to calculate research. prices of levies to ensure the continuity of the central services or proposed licence modifications. Let me give the House one example of how the culture within medicine is being encouraged to change. I am clear that we must have a process for adjudicating The presidents of many if not all of the medical royal on Monitor’s proposals if a sufficient number of those colleges have been invited to a champagne reception who will be affected by them object; otherwise, in and dinner at a posh London venue in a couple of these circumstances, either Monitor would have no weeks’ time. The invitation comes from a firm of way of proceeding with disputed proposals or those solicitors and the Royal Bank of Scotland, and it states: affected would have no other way of disputing proposals other than by judicial review. Either way that would be “Against the backdrop of challenging economic conditions and massive pressure on the public purse, we are keen to explore unacceptable and could result in significant harm to how other professions might be able to support your membership patients, for example if a licence condition that Monitor and the healthcare sector generally”. proposed related to securing essential NHS services. This seems to be a new phase in encouraging and For pricing methodologies, for example, the amendments supporting doctors to turn their attention to setting would mean that Monitor could go ahead with its up in private practice, in chambers and in other private proposals even if sufficient numbers of those affected healthcare organisations. That is a departure from our objected. The only way that providers, in the case of history. Is this the direction that the Government hope pricing commissioners, would be able to ensure that the medical profession will move in? What safeguards their concerns were taken into account would again be does the Bill contain with respect to competition to through judicial review. We need to ensure a fair and protect the NHS? transparent system of pricing, securing competition on quality and not price, and removing incentives for 7.45 pm providers to cherry-pick the services that they deliver Baroness Thornton: My Lords, I would like to comment or the patients whom they treat. on the three amendments in the name of the noble I am therefore clear that we should have a process Lord, Lord Clement-Jones, and then speak to the two for adjudication. I am also clear that the Competition amendments that we have in this group. They say that Commission should undertake that role. It has other imitation is the sincerest form of flattery, so I am very adjudication roles. The commission has experience of happy that the noble Lord saw fit to take three of the working across a range of sectors, on the basis that it amendments that we tabled in Committee and to does not necessarily have the knowledge which it make them his own. Those are Amendments 186, 187 needs about those sectors in-house. It would be free and 188. That is fine by us. I understand that the from political intervention in making these judgments. Minister will be very sympathetic to these amendments It is well respected by other regulators across the and might accept them, which is probably just as well, economy, for which it performs a similar role. In our as I would hate to embarrass the Liberal Democrat earlier debates, some noble Lords expressed concern Benches any further by having votes on amendments that there should be appropriate checks and balances that they have tabled and speak to but then do not on Monitor’s powers. The provision for adjudication support. by the Competition Commission creates one such These three amendments would stop a review from check and balance. These amendments would remove happening. I know that the noble Lord, Lord Clement- it. For those reasons, I oppose Amendments 196A and Jones, and his colleagues need to tell us that they have 196B, and I hope that on reflection the noble Baroness, won a great victory by getting the Government to concede Lady Thornton, will withdraw them. on these amendments. Far be it from me to intrude on I turn to the Competition Commission’s role in the coalition party’s love-in, so to speak. When we reviewing how competition is benefiting patients in tabled these amendments in Committee they were part the NHS. After briefing myself, I came to the conclusion of an overall, comprehensive change to Part 3 of the that the reviews will bring considerable benefit to the Bill. In many ways these amendments were part of the NHS because they will help us understand further tidying up of our suite of amendments to effect radical what effect competition has on NHS services for patients. change to and improvement of Part 3. We certainly They will also increase Monitor’s accountability because support these amendments. they will consider how Monitor is discharging its I turn to Amendments 196A and 196B, which stand functions. The commission will be well placed to conduct in my name and that of my noble friend. We do not them because it is an independent body with a long understand why the noble Lord, Lord Clement-Jones, history of performing such reviews across the economy. did not also table those amendments as he is going to It is the body where the expert technical knowledge be very successful in having his amendments agreed to. needed to perform this function already resides, and it 1741 Health and Social Care Bill[LORDS] Health and Social Care Bill 1742

[EARL HOWE] Clause 79 : Reviews under section 78: powers of understands and reviews how markets and regulation investigation work in the best interests of people. That was why the provision was put in the Bill. Amendment 187 However, I listened to the points made this evening Moved by Lord Clement-Jones by my noble friends Lord Clement-Jones and Lord Newton. On earlier occasions my noble friend Lord 187: Clause 79, leave out Clause 79 Clement-Jones was quite vocal in expressing his views Amendment 187 agreed. to me on this subject. I have some sympathy with the argument that prescribing reviews every seven years, Clause 80 : Reviews under section 78: considerations as the Bill stipulates, may place too great an emphasis relevant to publication on competition. Greater flexibility about the timing and specification of reviews may be helpful. Therefore, Amendment 188 I am clear that such reviews of competition in the Moved by Lord Clement-Jones NHS, when they happen, should focus on benefits to 188: Clause 80, leave out Clause 80 patients. On the basis that prescribed seven-year reviews may place too great an emphasis on competition in the Amendment 188 agreed. NHS, and given the role of the Competition Commission, Amendment 189 had been withdrawn from the Marshalled if it is the view of the House that Clauses 78, 79 and 80 List. should be removed from the Bill, I will not oppose Amendments 186, 187 and 188. 7.55 pm I turn briefly to the issues raised by the noble Baroness, Sitting suspended. Lady Hollins, on procurement in Surrey. The issue was raised earlier by the noble Lord, Lord Adebowale. I agree with her and with the noble Lord that social 8.26 pm enterprises can and do play an important role in Clause 87 : Licensing criteria providing innovative, high-quality services, often to very vulnerable people. Turning Point is an excellent example. The key aim of our reforms is that patients Amendment 190 should be treated by the best providers; that bureaucratic Moved by Earl Howe procurement practices should not frustrate this; and 190: Clause 87, page 104, line 36, leave out subsection (3) and that it should be quality that counts. We will take all insert— this into account when framing the commissioner “(3) Monitor may not set or revise the criteria unless the procurement regulations. Secretary of State has by order approved the criteria or (as the On the example quoted by the noble Baroness, I case may be) revised criteria.” understand that the requirement for the £10 million Earl Howe: My Lords, I beg to move Amendment 190 performance bond to which she referred was subsequently and speak to Amendments 193, 194, 195, 299 and 300. withdrawn and therefore played no role in the decision We have tabled Amendments 190, 299 and 300 to comply to appoint a preferred bidder. However, I will write to with the Delegated Powers and Regulatory Reform her with further details on this. Committee’s recommendations. These sought to ensure Amendment 185 agreed. that key elements of the licensing arrangements are subject to appropriate levels of parliamentary scrutiny. In line with that, Amendments 190 and 300 provide Amendment 186 that the Secretary of State’s approval of Monitor’s Moved by Lord Clement-Jones licensing criteria will always be made by order, and the 186: Clause 78, leave out Clause 78 first such order must be subject to the affirmative procedure. Subsequent orders, in the event of Monitor Lord Clement-Jones: My Lords, I thank the Minister wishing to revise the criteria, would be subject to the for what he said. I recognise that it is not easy to take negative procedure. Similarly, Amendment 299 provides away a piece of architecture that the Government had for the first set of exemption regulations made by the thought was necessary. I believe that the piece of Secretary of State under Clause 84 to be subject to the architecture effectively fell away with the Future Forum affirmative procedure. report. I do not at all recognise his description of me as “vocal” in any circumstances. I turn now to Amendments 193, 194 and 195, which deal with the hugely important issue of integration of As to the Opposition and the noble Baroness, services. There is a clear consensus around the importance Lady Thornton, I recognise that it is a bit difficult to of further integration and more services joined up acknowledge on the Floor of the House that the around patients’ needs. The Bill seeks to encourage Government today made many concessions in and enable the delivery of integrated services. collaboration with these Benches. I will promise to be gracious—if the noble Baroness is listening—about All NHS bodies and private and third-sector providers the role that she played in tabling these amendments in supplying NHS services are required by the Health Committee if she will cease to be ungracious on Act 2009 to take account of the NHS constitution in Twitter about the achievements of, and amendments their decisions and actions. This includes the principle to, the Bill. I beg to move. that the NHS works across organisational boundaries and in partnership with other organisations in the Amendment 186 agreed. interests of patients, local communities and the wider 1743 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1744 population. The Bill takes this further by making “Local Healthwatch”being the organisation that speaks it clear that in exercising any of their functions, for local people and the health and well-being board commissioners must act with a view to securing continuous having a role in commissioning. I hope that the Minister improvement in outcomes, including effectiveness, safety sees the value of including these two bodies. and quality of patient experience. Commissioners must also exercise their functions with a view to securing Baroness Cumberlege: My Lords, I support this that health services are provided in an integrated way, amendment, which is in my name and those of the where this would improve the quality of those services, noble Lords, Lord Patel and Lord Warner. The noble including outcomes, and/or reduce inequalities in relation Lord, Lord Patel, has introduced it with his customary to access to services and outcomes. The intention is, elegance and clarity. I can see no reason why these therefore, that it would be for commissioners to drive amendments should not be made. Bearing in mind integration and co-operation between providers in the that the noble Earl was so generous to me earlier when light of local circumstances and needs, and to enforce we included HealthWatch in another amendment, this through legally binding contracts. I live in great hope. Monitor would have an important role to play in supporting commissioners by enabling integration of Lord Warner: My Lords, I, too, support this services. That is why Clause 61 expressly requires amendment. Since the noble Earl was so beastly to me Monitor to exercise its functions with a view to enabling over social care, I hope he will actually support this integration. Nevertheless, in Committee the House amendment. raised further concerns around the extent of Monitor’s Baroness Finlay of Llandaff: My Lords, the government role in enabling integration and co-operation. We listened amendments are indeed welcome because they reflect carefully to those concerns, and ultimately agreed that concerns that have been expressed. I am sure that all there was more that we could do. those who expressed those concerns are grateful. We have tabled Amendments 193, 194 and 195 in The amendments in my name in this group relate to order to establish express power for Monitor to set education and training. I know that we have somewhat and enforce licence conditions for the purposes of threaded education and training through the Bill at all enabling integration, and enabling co-operation between stages. Amendment 192 relates to considering education healthcare providers where it would improve the quality and training when setting licence conditions, and I put or efficiency of NHS healthcare services, or reduce “education and training”because in addition to education, inequalities. Licence conditions could therefore be used staff training at every level is essential. to support commissioners in promoting integration and co-operation. This would also allow for licence I hope that the Government will support the view conditions to fully cover the relevant principles and that no organisation should be fit to provide services if rules of the current Principles and Rules for Competition it does not ensure that its staff are being kept up to and Co-operation. date and if it is not providing an environment from which people can learn. This does not mean that they all have to be recognised educational providers. 8.30 pm Amendment 196 in this group relates to indemnity. I hope that these amendments will reassure your This amendment has been tabled again because, despite Lordships that we have significantly strengthened the response that we were given in Committee, concerns Monitor’s capability in relation to integration. Not continue over indemnity for patients. Should a patient only will enabling integration be part of its general develop a problem subsequent to a provider going out duties but it will now be able to set and enforce licence of business, they should be covered by indemnity. It is conditions specifically for that purpose. I beg to move. interesting that we have the Legal Aid, Sentencing and Punishment of Offenders Bill in parallel with this Bill. Lord Patel: My Lords, my Amendment 191 relates We have concerns over legal aid for medical negligence. to the standard conditions that Monitor must determine, I have attached my name to amendments to that Bill in public, to be included in each licence under this concerning legal aid for the victims of clinical negligence. chapter. It is a fairly straightforward amendment and I hope that the Government will see that there is a I hope the Minister will recognise that it in no way need to have indemnity within services, whoever the affects the core principle behind the Bill; it is just an licensed provider is. There should be a read across to attempt to improve it. the protection of patients in the event of something Clause 95(7) says: going wrong or being done wrong that has harmed “Before determining the first set of the standard conditions them, particularly if they have been harmed in such a Monitor must consult the persons mentioned in subsection (8)”. way as to incur ongoing costs for healthcare and social Subsection (8) mentions the Secretary of State, the care as a result of the problem that arose with the Commissioning Board, primary care trusts, the Care provider, whether it be a voluntary sector provider or a Quality Commission and, importantly, private provider. “such other persons as are likely to be affected by the inclusion of the conditions in licences under this Chapter”. Lord Clement-Jones: My Lords, I thank my noble Of course, the people most likely to be affected are the friend Lord Howe for putting forward these amendments, patients. If that is the case, it would be unusual not to particularly Amendment 193, to which I have added include any bodies that work or speak on behalf of my name. In Committee, we were concerned that the patients and the public. Therefore my amendment powers of Monitor did not reflect the general spirit of suggests the inclusion of “Local Healthwatch” and, the way in which the Future Forum report talked “the appropriate health and wellbeing board”, about the mixture of competition and integration. 1745 Health and Social Care Bill[LORDS] Health and Social Care Bill 1746

[LORD CLEMENT-JONES] preference is to enable all providers of NHS services Although the objectives of Monitor at the beginning access to the clinical negligence scheme for trusts. That of Part 3 were changed to reflect the Future Forum would mean that all providers of NHS services would report, some of the back end of Part 3 was not have access to the same level of protection for patients, changed to reflect that. These significant amendments, whether those providers were private, voluntary or particularly Amendment 193, rebalance the Bill and public sector. The department has asked the NHS makes sure that it genuinely reflects the intentions of Litigation Authority for advice on the options for Future Forum. I am very grateful to my noble friend modifying the scheme and expects that new arrangements for putting down these amendments. would be in place for the next round of NHS contracts in April 2013. Earl Howe: My Lords, this has been an interesting I hope, therefore, that the noble Baroness will appreciate debate and I thank in particular the noble Lords, Lord that I strongly agree with the spirit of her amendment. Patel and Lord Warner, and my noble friend Lady Nevertheless, I must set out my concerns around its Cumberlege for tabling Amendment 191 and for giving potential effect, if she is thinking of pressing it. First, me the opportunity to explain the Government’s thinking the amendment could be implemented by employing on the important issue of patient and public involvement organisations requiring indemnity from their own staff. in Monitor’s work. We are very clear that patients Employees would then have to obtain their own personal must lie at the centre of the reformed NHS and that indemnity. However, I do not believe it would be right the Bill establishes mechanisms to ensure that that is to transfer this burden to staff or that employees the case. Health and well-being boards are part of would support it. Further, I do not believe it would be those arrangements and HealthWatch will have a vital cost-effective. My second concern is about potential role in giving patients and the public a real voice unintended consequences. Currently the Limitation throughout the NHS. I can therefore understand the Act 1990 limits the time available that personal injury intent of Amendment 191—and I wish that I could claimants have to bring their claim. The overwhelming accept it. However, I am sorry to say that in practical majority of claimants have three years to make their terms it is not workable and I will explain why. claim under the terms of that Act. Requiring all providers The list in Clause 95(8) relates to consultation but to hold indemnity for the lifetime of all patients, this is expected to take place before bodies such as potentially much longer than a patient’s legal entitlement HealthWatch and health and well-being boards are to make a claim, would be disproportionate and incur formally established. In other words, Amendment 191 significant costs. Overall, the effect of such a wide-reaching would impose a statutory requirement with which clause would be to divert resource unnecessarily away Monitor could not possibly comply.The list at subsection from patient care. I am sure that that is not what the (8) deliberately includes only those bodies that will be noble Baroness would ever seek to do and I do not in existence at the expected time of the consultation. believe that it is in the interests of patients or the NHS. I can nevertheless offer the noble Lord and the House I hope that on reflection and in the light of my firm reassurances on this issue. First, Clause 95(8)(e) assurances about what we are planning, the noble gives Monitor powers to include in the consultation Baroness will feel able not to press her amendment. “such other persons” as it “considers appropriate”. The noble Baroness also referred to her Amendment Clause 61(7) places a general duty on Monitor to secure 192, which I think we debated in a previous group. The the involvement of patients and the public in decisions Government have listened to concerns on education on the exercise of its functions, and we would firmly and training raised by her and other noble Lords and expect Monitor to use those powers to involve patients we have brought forward amendments to require the and the public fully in the consultation. Secondly, board and CCGs to have regard to the need to promote Clause 95(11) would require Monitor to consult with education and training when exercising their functions. HealthWatch England, with the NHS Commissioning Further, the Bill requires Monitor in Clause 64(j) to Board and with every clinical commissioning group in have regard to, the event that the consultation takes place later than “the need for high standards in the education and training of currently expected and after these bodies have been health care professionals”, established. I hope that I have been able to reassure the House that Amendment 191 is not only unnecessary, when exercising its functions. I suggest to the noble but would actually put Monitor in an extremely difficult Baroness that Amendment 192 is not required. position, and that the noble Lord, Lord Patel, will feel At this juncture, it might be worth quickly reminding able to withdraw the amendment. the House that all providers of NHS services will be I turn now to Amendment 196, tabled by the noble licensed by Monitor. The Royal College of Physicians Baroness, Lady Finlay. The amendment raises an has sought reassurances on how patient choice of any important issue, that of making sure that patients qualified provider would work. Even though the choice receive the compensation to which they are entitled in of any qualified provider is not in the Bill, I am happy the unfortunate event that they are harmed as a result to confirm that providers would always be required to of clinical negligence. The Government agree that that comply with national quality standards. Under our there must be equivalent safeguards in place for patients reforms, providers above a minimum size would be irrespective of who provides their NHS services. Currently expected to take part in the provision of education the NHS contract which providers must hold to deliver and training, and to work within agreed local care services requires adequate and sufficient indemnity pathways to ensure safe and joined-up care. I hope arrangements to be in place. In addition, to ensure that that is a reassurance not only to the Royal College equivalent protection for the future, the Government’s of Physicians but to other noble Lords. 1747 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1748

8.45 pm (a) improving the quality of health care services provided for the purposes of the NHS (including the outcomes Baroness Finlay of Llandaff: I am grateful to the that are achieved from their provision) or the efficiency Minister for his reply on indemnity. Would the risk of their provision, pool apply to the provider rather than be linked to the (b) reducing inequalities between persons with respect to individual patient? If there is an acute problem, some their ability to access those services, and hospices will accept referrals directly from patients (c) reducing inequalities between persons with respect to the and their families rather than waiting for a GP necessarily outcomes achieved for them by the provision of those to refer them. Those patients are all being treated in services.” the voluntary sector; they are not paying; they are all 195: Clause 97, page 109, line 29, at end insert— being treated the same; and they have been under “( ) In subsection (2)(db), “health-related services” and “social NHS providers for other parts of their treatment. The care services” each have the meaning given in section 61(11).” Minister may not be able to answer my question now, but I flag up such a situation as a potential that will Amendments 193 to 195 agreed. need to be covered off in providing. However, I am sure that what he has said tonight will be warmly Clause 98 : Conditions: supplementary welcomed by the voluntary sector, which provides an Amendment 196 not moved. important and, in many places, essential clinical service— which, I venture to suggest, hospices do par excellence. Their ability to meet patient and family need at great Amendment 196ZA speed has allowed them to be recognised as being so Moved by Lord Warner important. 196ZA: After Clause 99, insert the following new Clause— “Notification of commissioners where continuation of services Earl Howe: My Lords, I understand the noble at risk Baroness’s question. It might be best if I wrote to her (1) This section applies where Monitor— because the circumstances that she posits are such as (a) takes action in the case of a licence holder in reliance on to make it important that I do not get it wrong if I give a condition in the licence under section 98(1)(i), (j) or her an answer now. As she knows, the broad answer to (k), and her question is that our aim is for all NHS-funded care (b) does so because it is satisfied that the continued to be covered. She has raised a particular set of provision for the purposes of the NHS of health care circumstances on which I shall have to take advice, if services to which that condition applies is being put at significant risk by the configuration of certain health she will allow. care services provided for those purposes. (2) In subsection (1), a reference to the provision of services is Amendment 190 agreed. a reference to their provision by the licence holder or any other provider. (3) Monitor must as soon as reasonably practicable notify the Clause 95 : Standard conditions National Health Service Commissioning Board and such clinical commissioning groups as Monitor considers appropriate— Amendments 191 and 192 not moved. (a) of the action it has taken, and (b) of its reasons for being satisfied as mentioned in subsection (1)(b). Clause 97 : Limits on Monitor’s functions to set or (4) Monitor must publish for each financial year a list of modify licence conditions the notifications under this section that it has given during that year; and the list must include for each notification a summary of Monitor’s reasons for being satisfied as mentioned in Amendments 193 to 195 subsection (1)(b). Moved by Earl Howe (5) The Board and clinical commissioning groups, having received a notification under this section, must have regard to it in 193: Clause 97, page 109, line 13, at end insert— arranging for the provision of healthcare services for the purposes “(da) for the purpose of enabling health care services of the NHS.” provided for the purposes of the NHS to be provided in an integrated way where Monitor considers that this Lord Warner: My Lords, I shall speak also to would achieve one or more of the objectives referred to Amendment 214G which stands in my name. The in subsection (2A); amendments arise from our debate in Committee about (db) for the purpose of enabling the provision of health care what we then described as a “pre-failure regime”. The services provided for the purposes of the NHS to be argument that I was trying to sustain, with helpful integrated with the provision of health-related services support from different parts of the Committee, was or social care services where Monitor considers that this that it would be better for Monitor to get engaged would achieve one or more of the objectives referred to in subsection (2A); when it could see failure coming at it down the track rather than waiting for the train crash to occur and use (dc) for the purpose of enabling co-operation between providers of health care services for the purposes of the the health special administration procedures that were NHS where Monitor considers that this would achieve provided for in the Bill. one or more of the objectives referred to in subsection My amendment then was probably technically defective (2A);” but it served the purpose of raising the issue. The 194: Clause 97, page 109, line 22, at end insert— Minister was not so off-putting that I thought that I “(2A) The objectives referred to in subsection (2)(da), (db) would not have another go at this, so, with the help of and (dc) are— the noble Lord, Lord Patel, and the noble Baroness, 1749 Health and Social Care Bill[LORDS] Health and Social Care Bill 1750

[LORD WARNER] With regard to subsection (5) of Amendment 217, Lady Williams of Crosby, I put down Amendment 217, which I have mentioned to the Minister, I think it which is in this group. Following that, the Minister would be a good idea if the Government were to engaged with me in some rather helpful and fruitful consider assembling a group with expertise to help discussions and the results of those discussions were local people to reconfigure their services. It is often Amendments 196ZA and 214G. In my enthusiasm for difficult for people at the local level to think through tabling these amendments I completely forgot to remove how they might reconfigure services to make them Amendment 217, which is why it is still on the Marshalled sustainable. I do not suggest a top-down approach but List. I assure the Minister that I have no intention some sort of panel that could help local people and whatever of moving Amendment 217. facilitate the reshaping and redesign of services. That The nub of what is in Amendment 196ZA is that it would be a helpful way of proceeding. It might help a provides for Monitor when it can see that a licence lot of people to get through the difficult task of holder’s conditions are likely to be imperilled by a reshaping services when the need arises. Without further current configuration of health services in the wider ado, I beg to move. health economy—not just within that licence holder’s own individual trust. It can draw the attention of Baroness Williams of Crosby: My Lords, my intervention commissioners—the National Commissioning Board will be extremely short. I am delighted that the noble and clinical commissioning groups—to those risks Lords, Lord Warner and Lord Patel, put down this which it can foresee and it has to give its reasons for proposal for what one might describe as precautionary doing so. But rightly in my view and, I believe, that of failure. We were very concerned that there might be the Government, it puts the onus on the commissioners no regime that would enable services to continue because to do something about it. It does not require a top-down one had seen in advance the possibility of a particular intervention, but it flags up very seriously to the place getting into a great deal of trouble. This is a very commissioners that a problem is looming and they satisfactory proposal to put before the Government to need to do something about it. Just to give more force deal with the continuation of health services for an to that, each financial year Monitor will publish a list area, even when those services get into difficulties. of the notifications that it has issued in that financial I also strongly commend the proposal of the noble year, putting commissioners on notice that they have a Lord, Lord Warner, about the small group of local problem, that they need to do something about the people. That has one great advantage: that small group reconfiguration of services and that they need to take will then become part of what one might describe as a some action to ensure that there are sustainable NHS lobby for a sensible outcome, for a proper reconfiguration services in that part of the country. or change in the structure of services. That is very I pay tribute to the civil servants at the Department important. Otherwise, you almost invariably get very of Health because they have done something rather powerful local opposition to any substantial change ingenious that I never even thought of in Amendment and no natural constituency of people who support it. 214G, which is to take an application by a service This is an imaginative idea. I am pleased to be associated provider to Monitor to secure some adjustment in the with the amendment of the noble Lords, Lord Warner price paid for particular services to make Monitor and Lord Patel. think about whether there is anything more significant behind that application and whether there is a risk to Lord Patel: My Lords, I support the amendment. the sustainability of services in a particular area. If it The noble Lord, Lord Warner, and the noble Baroness, does consider that that is necessary, it can again notify Lady Williams of Crosby, have said all that needs to the commissioners of its concerns about the need to be said. I had my name to Amendment 217. To relieve consider service reconfiguration in that area. the anxiety—if they had any—of the noble Lord, These two amendments, which have been given a Lord Warner, and the Minister, I will not move that lot of technical help by the Department of Health and amendment either. I strongly support Amendment 196ZA. a lot of support from the Minister, meet my concerns and, having talked briefly to the noble Baroness, Lady Baroness Murphy: My Lords, I also add my support Williams of Crosby, I believe that they also meet hers. to the very practical solution given in Amendments There is an adequate set of arrangements to put 196ZA, 214G and 217 that will provide Monitor with commissioners on notice that failure may be looming a mechanism to deal with future, upcoming failure so that they can take action under their responsibilities. and intervene early. That is very practical. I hope that Just to make sure that they do, each year there will be it will be attractive to the opposition Benches because, a list of the notifications that Monitor has issued so in part, it deals with their anxieties about special that it is on the public record that Monitor has spotted administration orders. None of us wanted to see those that there is something of concern and has required special administration orders used early. We want commissioners to take action. them as a very rare fallback position, and to use them That meets my concerns and I think that it meets maybe once in a decade not once a year. If there were the concerns of the noble Baroness, Lady Williams of a mechanism like this one, enabling a practical way of Crosby and the noble Lord, Lord Patel. In order to targeting and getting local commissioners to address table the amendment in time for today’s debate, I did local failure, we could avoid some of the draconian not have time to collect the signatures of my partners measures that it is necessary to have in the Bill but in crime on Amendment 217, but I have every reason which none of us wants to see used frequently. I hope to believe that they would be satisfied with the that the solution will commend itself to the opposition Government’s response to our concerns. as addressing their concerns about this regime. 1751 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1752

Lord Beecham: My Lords, I can certainly reassure However, it is not always possible or desirable to the noble Baroness on that score. I warmly endorse the prevent provider failure at all costs. As a last resort, amendment moved by my noble friend and I hopefully when a provider becomes unsustainable—and I emphasise anticipate a warm response from the Minister. that that will be only when all other interventions have I shall speak briefly to the amendments in the name been exhausted or may not be in patients’best interests—a of my noble friend Lady Thornton and myself. In continuity of services administrator may be appointed Amendments 217ZA and 217ZM we propose to leave to protect patients’ interests and secure NHS services out the chapter on financing special administration in line with requirements determined by commissioners. cases. The whole field of health special administration, For the first time, there will be similar protection for which would apply to non-NHS providers to deal with patients who rely on essential NHS services regardless failure, is highly complex. It would be better for the of who the provider might be. The existing legal financial side to have the NHS operating as a risk pool; framework has no such protection for patients who that could be factored into the work of commissioners rely on NHS services provided by independent providers, as part of dealing with non-NHS providers in their including the social enterprises established by the previous commissioning plans. However, it was not my intention Government when the noble Baroness, Lady Thornton, to divide the House on this matter. was Health Minister. I am sure noble Lords would We also have Amendment 220D to leave out the clause agree that if a social enterprise delivering essential on repeal of de-authorisation and Amendment 221A community palliative care became unsustainable, then to leave out the clause on the abolition of NHS trusts surely its patients should receive protections that would in England, as we think that that is unnecessary. But secure the continuity of that service, as do patients of the main thrust of our consideration of this group of the foundation trust. amendments is undoubtedly to support the amendments The reality of the NHS is that it is a comprehensive of my noble friend Lord Warner, which deal substantially health service delivered by a diverse range of providers. with most of the significant issues here, and we will Part 3 recognises that reality and will protect patients’ not press our amendments. access to that comprehensive service. I cannot agree with the noble Lord, Lord Beecham, as his amendments 9pm would remove this type of protection for patients. Earl Howe: As I hope will be clear, the Government’s Fundamental to our aim of protecting patients’ access proposals are for a fair, transparent and comprehensive to a comprehensive health service is the need to ensure framework that protects patients and taxpayers’ interests that sufficient funding is set aside for when things go by securing continued access to services through early wrong. The King’s Fund and others have said that intervention to prevent failure wherever possible and they support the establishment of a transparent funding effective arrangements to secure continuity of NHS mechanism for securing essential services when providers services should a provider become unsustainable. go into administration. When the noble Baroness was The Bill builds on and improves existing arrangements a Health Minister, her Government presided over a by putting commissioners in the lead for shaping period of sustained growth in the economy, but sadly services for patients and providing a clear role for that is no longer the case. Despite economic challenges, Monitor in supporting commissioners. It will ensure the coalition has continued to increase NHS funding that change happens when the status quo is unsustainable, above the rate of inflation, but we need to be prudent and there will be sufficient funding to support this. to be able to guarantee that funding will be available The Bill goes further and addresses the gaps in existing to protect patients when any provider of essential legislation, such the lack of protections for patients services gets into difficulty. The problem with the whose NHS core is delivered by social enterprises and noble Lord’s amendment is that it would put that at other independent providers. The Bill gives Monitor a risk. comprehensive range of powers to intervene proactively to support reorganisation and prevent failure to maintain That funding is essential because we simply cannot service continuity. be sure otherwise that sufficient funding would be available centrally, particularly when the Treasury will I turn to Amendments 196ZA and 214G. I am face competing demands on any surplus funds held grateful to the noble Lord, Lord Warner, for his patience centrally by Whitehall departments. A further benefit in working with the Government on this issue. I see of our approach is that the funding will be built up that the noble Lord, albeit with a tiny bit of help, has from commissioners and providers, including private really got to the core of our proposals for ensuring the providers, based on a transparent methodology and in continuity of services for patients by clarifying a role proportion to risk. That will strengthen financial incentives for Monitor, which is to support commissioners and for providers and commissioners to manage risks provide them with information that they need to take effectively and help to end the culture of back-room the right decisions about services in the best interests bailouts. of patients. The key aspect of the noble Lord’s amendments is that they reinforce the fact that I hope that the arguments that I have put forward commissioners remain in the lead for responding to demonstrate how Part 3 will strengthen the protection risks to services and, in partnership with providers of patients’ interests. Once again, I thank the noble and other local stakeholders, for engaging on service Lord, Lord Warner, for his amendments, which will change to reduce those risks. That is why I am pleased improve the Bill and undoubtedly benefit patients. I to accept these amendments, which also reflect the hope that noble Lords will join me in my support for King’s Fund recommendation on how the Bill could them, and I ask the noble Lord, Lord Beecham, to be improved to support vital service reconfiguration. withdraw his amendment, as he has indicated he will. 1753 Health and Social Care Bill[LORDS] Health and Social Care Bill 1754

Lord Warner: My Lords, I am grateful for the However, I recognise that this was not as clear in Government’s support for this amendment. the Bill as it could have been. I am grateful to noble Lords, particularly my noble friends Lord Clement-Jones, Amendment 196ZA agreed. Lord Marks, Lady Barker and Lady Tyler, for their work in highlighting this issue. I have tabled four Amendments to Clause 111—Amendments 196C, 197A, Clause 101 : Modification references to the 197B and 197C—which clarify the position. These Competition Commission enduring powers would enable Monitor to require a foundation trust to remove directors or governors in Amendment 196A not moved. exceptional circumstances as a form of remedial action, where it considered this necessary. This would be Clause 102 : Modification of conditions by order under appropriate only in the case of a very serious breach of other enactments licence conditions. In addition, for a transitional period until at least Amendment 196B not moved. 2016, Monitor would retain express powers to fire or suspend foundation trust directors and governors directly. Clause 111 : Imposition of licence conditions on NHS As now, this power could be used only where a foundation foundation trusts trust had failed to comply with a notice from Monitor to remove or suspend individuals itself. These powers are for use when a foundation trust is at risk of Amendment 196C breaching its licence conditions to provide NHS services because of a failure of governance. This is more likely Moved by Earl Howe in the early years of a trust’s existence, when its 196C: Clause 111, page 119, line 19, leave out subsection (1) governors are all new to the role and are building up and insert— their capability to hold its directors to account. That is “(1) Where Monitor is satisfied that the governance of an why the powers consist of those to fire or suspend NHS foundation trust is such that the trust will fail to comply directors and governors. with the conditions of its licence, Monitor may include in the licence such conditions relating to governance as it considers I understand the concerns of noble Lords to ensure appropriate for the purpose of reducing that risk. that this additional power remains available for as (1A) The circumstances in which Monitor may be satisfied as long as Parliament considers necessary, while we work mentioned in subsection (1) include circumstances where it is with Monitor, the Foundation Trust Network and satisfied that the council of governors, the board of directors or others to support governors to develop their capability the council of governors and board of directors taken together in holding their boards to account. Therefore, I have are failing— tabled five amendments—Amendments 198A, 198B, (a) to secure compliance with conditions in the trust’s licence, 199A, 199B and 200A—which provide for Monitor to or retain this power unless and until the Secretary of (b) to take steps to reduce the risk of a breach of a condition State makes an order to withdraw it, either for all in the trust’s licence.” foundation trusts or individual trusts. I beg to move.

Earl Howe: My Lords, I shall speak also to government Lord Clement-Jones: My Lords, I want to speak to Amendments 197A, 197B, 197C, 198A, 198B, 199A, my amendments to express my thanks to the Minister 199B, 200A, 300ZA and 300ZB. for the amendments that he has tabled, and to give a Monitor will continue as the regulator of NHS little rationale for why we were concerned but are now foundation trusts, as I have said. We had always intended satisfied by the Minister’s amendments. On these Benches this to be the case and I welcome the opportunity to we were very concerned about the deregulation of clarify our position. Monitor will regulate foundation foundation trusts in 2016. We believed that putting trusts through a new licensing regime, which it will foundation trusts on the same footing as all other administer jointly with the Care Quality Commission. provider licensees was not only dangerous because of This will help to strengthen collaboration between the the risk of wider application of competition principles, two regulators. It will license foundation trusts to but undesirable since district general hospitals—essentially provide NHS services, as it would license anyone else foundation trusts—are the core of public provision in who wished to do so, to ensure that NHS services are the health service. They are public assets, funded either protected as financially sustainable and of high clinical conventionally by the Government or by PFI. Sadly, quality. many of us argued at the time that PFI would be an Part 3 anticipates that Monitor will set differential expensive and inflexible method of financing healthcare licence conditions for foundation trusts to reflect their infrastructure. Nevertheless, district general hospitals unique status and governance structures. Monitor would are an essential part of the NHS. have power to intervene and direct foundation trusts Therefore, we proposed amendments that removed to take action to ensure compliance with licence conditions. Clauses 111 to 114 and retained Monitor’s special This would include the power to enforce requirements powers over foundation trusts unless terminated by on foundation trusts to maintain continuity of NHS the Secretary of State with the authority of an affirmative services and protect essential NHS assets, consistent resolution of both Houses of Parliament. We were not with its principal purpose, as defined in statute. Those saying “never” but the Secretary of State, after some powers are set out in Clause 105. I emphasise that years of the new structure, clearly needs to satisfy these enforcement powers would not be transitional. Parliament as to why particular foundation trusts no 1755 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1756 longer need to be subject to regulation by Monitor in (2) Different days may be appointed in relation to different this way. It may be possible to make the case for the NHS foundation trusts. deregulation of foundation trusts in the future, but (3) A day specified under subsection (1) must not— currently the assumption should be that foundation (a) in the case of an NHS foundation trust authorised on or trusts will be treated differently from other providers before 1 April 2014, be before 1 April 2016; in regulation—not just in the transition period but in (b) in the case of an NHS foundation trust authorised after the medium term—so that Monitor will have the right 1 April 2014, be before the end of the period of two to appoint and dismiss directors and governors in that years beginning with the day on which the trust was period. authorised.” To that end, we very much welcome the amendments 198B: Clause 112, page 121, line 11, leave out paragraph (a) tabled by the Minister to meet our concerns. Our amendments talk of an order passed by the affirmative Amendments 198A and 198B agreed. process and the Government’s by the negative process but I do not want that to stand between us. The Amendment 199 not moved. Minister has gone a very long way to meet our concerns, for which I am extremely grateful, as are all my colleagues Clause 113 : Orders under section 112 that apply to on these Benches. only some trusts

Baroness Murphy: My Lords, I have added my name Amendments 199A and 199B to four of the amendments in this group and I am wholly content that the Government have addressed Moved by Earl Howe them satisfactorily. 199A: Clause 113, page 121, line 22, leave out from “112” to “, the” in line 23 Earl Howe: My Lords, I am very grateful to my 199B: Clause 113, page 121, line 42, leave out subsections (6) noble friend and the noble Baroness, Lady Murphy, to (11) and insert— for their comments. “(6) The Secretary of State, having received a notification under subsection (4)(c), must review Monitor’s determination under subsection (4)(b).” Amendment 196C agreed. Amendments 199A and 199B agreed. Amendment 197 not moved. Amendment 200 not moved. 9.15 pm Clause 114 : Repeal of sections 112 and 113 Amendments 197A to 197C Moved by Earl Howe Amendment 200A 197A: Clause 111, page 119, line 28, leave out from “notice” to Moved by Earl Howe end of line 32 and insert “require the trust to—” 200A: Clause 114, page 122, line 32, leave out paragraph (e) 197B: Clause 111, page 119, line 39, leave out from “has” to end of line 43 and insert “failed or is failing to comply with a notice under subsection (4), Monitor may do one or more of the Amendment 200A agreed. things which it may require the trust to do under that subsection.” Amendment 201 not moved. 197C: Clause 111, page 120, line 1, leave out from “exercising” to end of line 3 and insert “in relation to a condition included in a licence under subsection (1) the powers conferred by sections 105 Clause 116 : The national tariff and 106 (breach of licence condition etc: enforcement powers which apply during and after period in which this section and sections 112 to 114 have effect).” Amendment 201A Amendments 197A to 197C agreed. Moved by Baroness Thornton 201A: Clause 116, page 123, line 6, leave out “Monitor” and Amendment 198 not moved. insert “Regulations must provide and the Secretary of State”

Baroness Thornton: My Lords, we now move on to Clause 112 : Duration of transitional period pricing. We believe that setting the national tariff is a matter of policy and that it should be set by a Secretary Amendments 198A and 198B of State, not Monitor. That is the main thrust of these amendments. Amendment 201A is about setting the Moved by Earl Howe national tariff as a matter of policy. Amendment 201B 198A: Clause 112, page 120, line 20, leave out subsections (1) proposes that regulations to the national tariff must to (6) and insert— state how the prices and methods were determined, “(1) Section 111 ceases to have effect in relation to an NHS that any proposed change to the national tariff will be foundation trust on such day as the Secretary of State may by subject to proper evaluation and testing, and that order specify. there must be evidence of consultation between the 1757 Health and Social Care Bill[LORDS] Health and Social Care Bill 1758

[BARONESS THORNTON] In other words, the tariff could not be varied either Secretary of State and Monitor. Amendment 201C upwards or downwards; it would be an immutable states that the national tariff should not be allowed to price. I regard this as extraordinarily irrational and vary in relation to different descriptions of provider. perverse, and I hope that I can persuade the Government Amendment 201D states that where a commissioner to think again. It has at least four problems. of a health service receives an offer from a service First, if there is an immutable price, you may not be provider who is licensed by Monitor at a price below able to pay for certain services that are required and the national tariff—I am sorry; that is my noble friend’s are of the quality necessary for patient outcomes. The amendment. I beg his pardon. Then there are a whole Government have recognised that point at least. Indeed, set of amendments which seek to delete clauses— Clauses 124 and 125 appear to address that because Amendments 211A, 214A, 214B and 214C—because they make it clear that there is scope for an agreement if the Secretary of State is setting the national tariff, between a commissioner and a provider to be approved these clauses are unnecessary. by Monitor at a price above the tariff. The wording in At present, the national tariff is set by the Department Clause 124(5) and Clause 125(3) is identical, except of Health, often in ways that are mysterious, probably for the words “approve an agreement” and “may grant less than optimal and without sufficient consideration an application”, and states: of unintended consequences, and often without enough “Monitor may approve an agreement”— testing. Nevertheless, we remain firmly of the view that or “grant an application”— price setting is such a fundamental part of the system “only if, having applied the method under section 116(1)(d), it is that it has to remain the responsibility of the Secretary satisfied that, without a modification to the price determined in of State and the Department of Health. We do not have accordance with the national tariff for that service, it would be an answer as to why you would give such a potentially uneconomic for the provider to provide the service for the purposes potent policy lever to the regulator. I should be grateful of the NHS”. if the noble Earl could explain that. Why keep price That makes it clear that it is possible for the commissioner control with Monitor? I should be interested to hear to pay more than the tariff in those exceptional what he has to say. I am sure that we would all circumstances, with the consent of Monitor, and of agree that the key point is that we get tariffs right. We course I approve of that, but it is not possible for the therefore seek to insert the need for proper consultation commissioner to approve less. That is an extraordinary and transparency in the tariff-setting process. I beg state of affairs. to move. I can quite understand why the Government do not want to write into the Bill that it will not be possible Lord Davies of Stamford: My Lords, I shall speak for a commissioner to accept a lower price. That to Amendment 201D in my name. I tentatively proposed would not make the slightest sense. It would be all this in Committee as a probing amendment. I bring it over the tabloids in headlines. Instead, it is disguised in forward now much more seriously because I have been the language of parliamentary drafting as being a reinforced in my belief that this is a necessary amendment power that would exist only if it was uneconomic for by everything that has been said. My belief has also the provider to provide the service for the purposes of been reinforced by the support of a number of colleagues, the NHS. You can never argue that it is uneconomic to including explicitly by my noble friend Lord Warner, provide a service at a higher price. The amendments to whom I am grateful. provide only for the circumstance in which the It has been clear from our debates that the commissioner finds it necessary to pay a higher price Government’s intention is that there should be two than the tariff to secure the patient services which the price regimes in the NHS—one for services for which commissioner is procuring. there is no national tariff and one constituted by the That is the only one of the four problems raised by national tariff itself. Services that are outside the that approach to a national tariff which the Government national tariff will be contracted for on the basis of a appear to have addressed. The second is that in many tender offer and good value for the taxpayer or customer. cases, it may be possible to provide the same quality of I have no quarrel with that, and the Government have service at a lower price, but the Government are excluding, clearly stated that they intend to achieve contracts on a priori, from the beginning, outright, in principle, any the basis of the right reconciliation of quality and price. possibility of that happening. That makes no sense. I argued in Committee—and I am sure that I was right We and the Government surely agree that the NHS —that that constitutes price competition. The Government budget will always be under great pressure, that there do not like the phrase “price competition”, but I am must be financial discipline in the NHS, and that when not interested in semantics or the party-political reasons there are opportunities to secure the same quality at a that may lie behind their semantic choices; I am interested lower price it should be the obligation of commissioners in the reality, which is that commissioning services on to achieve that. My amendment does not go so far as that basis is entirely rational, and I have no quarrel to create an obligation—I was more hesitant than with it. that—but at least there must be the possibility for The problem arises in relation to the national tariff. commissioners, if they see an opportunity, to procure The Minister set out the position clearly in his response that service at a lower price and save money for the to me on 13 December. He said, benefit of patients and the National Health Service as “we want a system of fixed prices”, a whole. and then stated that, The third and fourth problems created by government “the tariff would not be a maximum price”.—[Official Report, policy in this area are perhaps a little more subtle. The 13/12/11; col. 1229.] third, which I mentioned in debate in Committee, is 1759 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1760 that if you deny the possibility of bids coming in at a 9.30 pm lower price for any given service, you deny the possibility I also accept the argument about networks. Networks of ever investigating or having insight into the process have been a splendid innovation in the National Health of price formation in that sector of activity. You Service, covering patient pathways a long way or all simply do not know to what extent the prices you are the way along the pathway. It may be absolutely essential working on—the prices you are accepting—contain to get a network together to assure the various providers an unnecessary level of cost and overheads, or the in that network that they will have a monopoly up to extent to which you are not getting a good bargain. In a particular number of patients or over a particular my view, you should not be sleeping at night if you are region, and that they will not be subject to being a commissioner and you do not know how prices are picked off by price competition once they have agreed formed, whether you could be getting a better price to take part in that network. I fully understand that. and, if so, what that better price would be. However, my amendment poses no threat to any of The fourth problem created by the Government’s those things; nor is there any other good reason why approach to this up until now— I live in hope that commissioners might decline to seek a lower price and they may change it in the light of this debate—is that it accept an offer below the tariff. It purely enables them dampens or may even be fatal to innovation in this to do so where they think, and where Monitor has area of the National Health Service. I think we are all specified, that a lower price can be accepted. I say agreed in principle that we should encourage innovation, Monitor and not the commissioner, who may be thought but there is no point in any prospective provider to have some economic or financial interest in saving spending time and money on developing a better money. Under my amendment, Monitor will have to approach to solving a problem or a new technique for satisfy itself that a lower price can be accepted without diagnostics, therapy or what have you, which has the damage to the structure and capacity of the NHS and same quality and outcomes, or even better, which without any lesser quality being provided for the patient. could be delivered at a lower price, because the price is Those are two vital provisions at the heart of my fixed. You can only come up with the same price amendment, and I hope that the Government will be because you are not allowed to be given a contract if prepared to think again about this very important matter. you tender at a lower price. That makes no sense, so I must press the amendment again. Lord Warner: My Lords, I support my noble friend’s I emphasise, as I did in Committee, that the amendment Amendment 201D and I do so for a few simple reasons. is in no sense prescriptive. It does not force commissioners I am afraid that I am a bit of a heretic on price to take the lowest price. There might be an argument competition. It has always seemed to me that, if you for forcing commissioners to take the lowest price want to have competition, simply excluding all aspects where quality remains the same, but I have come up of price will not necessarily be in the best interests of with a much weaker amendment. It is purely permissive. any public service, health or otherwise. Therefore, I do It provides for commissioners, where they wish to and not start from the position where I think that a blanket where Monitor approves—so there is a double check, refusal to have any competition on price is a sensible a double brake on the mechanism—to accept a lower way forward. However, that is not what my noble price. It is extraordinary that they are not allowed to friend’s amendment does. It is, if I may say so, do something which all of us in every other field of uncharacteristically modest in its approach. economic activity would feel to be the rational thing Although I shall not name the person or the to do. circumstances, I should like to share with the House a My noble friends on the Front Bench have made recent discussion that I had with an innovative GP the point several times that there are many situations running a big group practice in something which looks in which it would not be sensible to take the lowest remarkably like an Ara Darzi polyclinic. This practice price in an NHS context. One of them I described in is innovating the way that it responds to its patients’ some detail in Committee, so I do not need to go over needs and it is doing so by providing services without it too much tonight. There is no doubt that in any field reference to an acute hospital. However, it is caught in of economic activity where overheads or fixed costs a bind. It is making substantial surpluses, about which are a high proportion of the total costs there is a it is almost embarrassed, simply because it is required temptation or opportunity for predatory pricing. If by its commissioners to accept the tariff payments. the fixed costs are a very high proportion of the total That is a nonsense in the circumstances in which the costs, then anyone who has the capacity to make a NHS finds itself, and I am certainly prepared to talk one-off offer can come in with an offer which may be to the Minister privately about some of those at a substantial premium to variable costs and therefore circumstances. I am not fabricating this; it is a real very attractive to him if he has spare capacity. It would case happening day in and day out. I suspect that, on be much lower than the full cost and therefore very the basis of what I was told, it is not alone in the tempting but it might be very dangerous for the country in being in that position. customer—the commissioner in this case—to accept If one thinks about it, this is bound to happen. If because it might undercut and perhaps destroy the we are really serious about driving services outside capacity on which he relies on a long-term basis. hospitals and providing them in a facility where a lot Clearly, no one is going to provide services at below of the things that would be done in hospitals can be full cost on a long-term basis. Therefore, there is done on a more out-patient basis but without reference always a danger of predatory pricing in healthcare to any in-patient costs, it is likely that we will get and we must be alert to it. There is no question about ourselves into difficulty with a tariff which at the that. moment is very hospital-driven. It is a tariff which is 1761 Health and Social Care Bill[LORDS] Health and Social Care Bill 1762

[LORD WARNER] and Monitor will respond to those design structures. set on a basis of acute hospital costs. For a few years, I think that working together will be very healthy we are likely to throw money at innovators who do not indeed. I do not underestimate the difficulties of getting necessarily want that volume of money simply because it right; it is an ongoing developmental programme. we have ruled out the ability to pay below tariff, so Nevertheless, I think it is a good way forward. I do not that people can provide perfectly adequate, perfectly like the idea of removing the price setting from Monitor. good services for their patients, protecting their interests, I will briefly say that I am quite attracted to the but they will actually be paid more than they need to amendment of the noble Lord, Lord Davies. One be paid for providing those good quality services. I cannot not be if one wants value for money. I remember think that the Government have to look again at this seeing the noble Lord’s face when he first realised that issue. My noble friend has produced a way forward there was going to be no competition on price, and with many safeguards. having a good deal of sympathy for where he was Perhaps I could also say a few words about the coming from. However, the matter is one of transition, Secretary of State setting prices. I do so from my and of when the public will feel confident that the way experience as the Minister who was involved in the that the Bill intends to introduce competition on the first sets of price setting, when we introduced them basis of competitive tender will improve quality. across the country back in 2005 and 2006. In those I worry about the response that the media could circumstances, one of the places where we looked for make to a significant change of this kind, even though experience was Germany. Germany has a separate I agree with the noble Lord that some services—as the organisation which sets the prices and collects and noble Lord, Lord Warner, said—are overpriced and analyses the data. That happened because it was thought that there are opportunities for driving down these that there was a lack of trust in Ministers setting the prices. That may come through the way that the national prices. We got a fair amount of criticism in the beginning Commissioning Board and the regulator together set from the NHS about the price setting not being prices. After all, the price of a tariff will be a moving transparent. At that point, once we had established thing; it will be negotiated; it will change over time; the tariff system—the payment-by-result system—we and we will be able to address areas where there is were inclined to move the setting of the price away obvious overpricing. I am attracted to the amendment from the Department of Health so that there would be of the noble Lord, Lord Davies, and it may be that more confidence in the process of setting prices. eventually we will need to introduce something of the In so far as there is a case for the Secretary of State sort. However, I would be nervous of doing it at the to be involved, it seems to me that the case is stronger, moment in this form, even though it seems quite sensible. not in relation to Monitor’s pricing, but in terms of the Secretary of State driving the change in the definition Earl Howe: My Lords, the case for regulating prices of currencies, which is the function that has been given for NHS services is strong. Many academics agree that to the national Commissioning Board. Making changes competition should be on quality and not price and in the currencies is probably the most significant way that this will increase the standard and quality of in which we can improve the way that the tariff operates. healthcare services and protect patients’ and taxpayers’ I do not have any particular problem with that being interests. This requires prices to be fixed. Therefore, it with the national Commissioning Board now, but it is is vital that there is an effective system of price regulation certainly an area where I think the Secretary of State that can deliver these improvements and help sustain a will need to keep a close eye on the national universal and comprehensive NHS, free at the point of Commissioning Board to see that it addresses the need use. However, a number of problems with the current to move away from episodes of care to patient pathways system have been identified, including by the previous in the way in which the tariff is set. Administration, which mean that it is not as effective I am not so sure that I agree with my noble friend as it could be. on the Front Bench that we want the Secretary of In particular, I will mention two things. First, prices State to set a price, but I think that the Secretary of are subject to potential political interference. This State should take a healthy interest in the way in which means that providers are more risk averse. That inhibits the currencies are set with the tariff. investment and innovation in the sector. As the noble Lord, Lord Warner, said, the methodology for setting Baroness Murphy: My Lords, the noble Lord, Lord prices is not transparent. This makes the system Warner, has said more or less what I was going to say. unpredictable—again, inhibiting investment and It seems to me that if you remove price setting from innovation. Secondly, prices can be inaccurate and the regulator of healthcare, you do not have an economic may not always reflect best practice models of clinical regulator. From my experience of watching prices and service delivery. This may result in cherry picking and types of funding formula go up and down over the may hinder providers from expanding and improving past 20 or 30 years, it is crucial and admirable to quality. Therefore, the case for change is clear and remove it into a system that can be independent and compelling. The Government’s vision is for an transparent. independent, fair and transparent system of NHS As the noble Lord, Lord Warner, says, after the price regulation that reflects best practice and extends Future Forum amendments, we have a system now the scope of the tariff when it is in the interests of whereby the shape of the tariff and the bundling patients; that ensures that competition is based on systems, if you like, which will enable the sort of quality and choice, and not on price; and that addresses integration and co-ordinated care to be effective, will the problems of cherry picking. To deliver this vision, be firmly with the national Commissioning Board, prices will continue to be regulated through a national 1763 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1764 tariff. This will build on and improve the system of standardisation of service specifications to support payment by results—which the previous Government the foundation of a comprehensive tariff system. This said that they would improve but failed to do so. will make reconfiguration of services and integration Perhaps it would be helpful for me to explain in a across administrative boundaries easier. bit more detail how the Bill will support this vision. In To put matters beyond doubt, the national tariff other healthcare systems around the world—for example, would be a fixed price, with any competition based on in the Netherlands—Governments have delegated price quality and choice, not price. We listened to representations setting to independent organisations. The noble Lord, made to us about this, and we amended the Bill to Lord Warner, cited another example: that of Germany. make clear that the tariff would not be based on a Such bodies create a transparent and stable environment maximum price. Of course I understand the points for pricing. made very ably, if I may say so, by the noble Lord, Lord Davies, and the noble Baroness, Lady Murphy. Lord Davies of Stamford: Before we get on to the We all want to see best value for money for taxpayers important matter raised by my noble friend of who is in the way that services are provided, but our judgment going to fix the tariff, if there is a tariff, and the issues was that, for reasons that I will elaborate on, that is raised by my amendment, will the Minister agree to not the right way to go. Where services were not meet privately me and, I hope, my noble friend Lord covered under the national tariff, there would be rules Warner—there has been no collusion between us but to govern those prices locally. Prices and rules within I hope he will come to that meeting—to discuss in the national tariff would be legally binding and greater detail the technical but important matter of independently enforceable by Monitor to eradicate the circumstances in which it is right to accept a lower any abuses. Tariff prices could not be varied for different price bid in the National Health Service? providers according to their ownership status. That would prevent future Governments paying inflated 9.45 pm high prices to private providers. Earl Howe: I will be happy to meet the noble Lord I shall elaborate a little on what I said in answer to to talk about that. the noble Lord, Lord Davies. The purpose of the tariff I was talking about the example of the Netherlands is to ensure that providers are reimbursed fairly for the and Germany and was about to make the point that services they provide and to allow competition to be bodies of that kind can create a transparent and stable based on quality and not price, as I mentioned. When environment for pricing outside the influence of politics a maximum price was suggested, the fear was that so that providers have confidence to invest and regulators there would be a drive to the bottom on prices, thus can develop strong technical skills in setting prices at jeopardising the quality of care. The evidence from the efficient levels. The Bill proposes that independent UK and internationally suggests that quality-based statutory bodies—Monitor and the NHS Commissioning competition with fixed prices can be very beneficial in Board—would collaborate to regulate prices. This will producing higher quality care—that evidence is reported give commissioners a key role in price setting, whereas by the Office of Health Economics—whereas evidence the opposition amendments would prevent this and from the USA sounds a note of caution that the would return control to Whitehall. wrong kind of competition based on price can lead to a race to the bottom on quality. Our judgment was Monitor would publish national tariff prices based that we should stick with our position that the tariff on a methodology subject to consultation where providers will not be a maximum price. and commissioners could trigger an independent adjudication to ensure transparency and fairness. I am Finally, the Bill addresses the problem of cherry clear that we must have, as I said earlier, a process for picking, which I am afraid was a problem that the adjudicating on Monitor’s methodology. Otherwise previous Government did not grip. It places a duty on Monitor could just go ahead with its proposals, even Monitor and the NHS Commissioning Board when if there were a whole lot of people affected by the setting prices to consider the range of services provided proposals who objected and the only way that they by different providers and the differing needs of the could see those objections through to a conclusion patients treated. As the Royal College of Psychiatrists would be through judicial review. The government noted: amendments in this group ensure that the appropriate “We are particularly glad to note the Government’s moves to providers could trigger independent adjudication. prevent the cherry-picking of services and hope that the safeguards I am also clear that the Competition Commission are a success”. should undertake this role. As I said earlier, it would The Opposition’s amendments would actually delete be free from political intervention in making these these important provisions from the Bill, thus not judgments and is well respected as an organisation addressing the concerns expressed by clinicians up and across the economy for the role it performs. The down the country. opposition amendments would prevent any of these benefits being realised. A key priority for improving To conclude, the status quo is not an option. The the system is to expand its coverage so that more and Bill strengthens the current system and meets the more services are brought within scope. The previous concerns raised by clinicians and others. I ask noble Government failed to do this in line with their own Lords not to press their amendments which would fail published timetables, for example, regarding mental to address the current fundamental problems and health services. The Bill would place duties on Monitor would deny patients and taxpayers the benefits of an and the NHS Commissioning Board to secure the independent, fair and transparent system. Finally, 1765 Health and Social Care Bill[LORDS] Health and Social Care Bill 1766

[EARL HOWE] Baroness Anelay of St Johns: My Lords, I think the I hope the House will accept the minor and technical noble Lord on the Woolsack is trying to assist the amendments in my name in this group when I come to noble Lord, Lord Davies of Stamford, to realise that move them. the rules as they pertain in this House are that if the noble Lord, Lord Davies, wishes now to speak further to his amendment, he must go through the process of Baroness Thornton: My Lords, the Minister has moving it, speaking to it—and I am sure the Minister explained this very clearly. We part company about the would hope he might then withdraw it. Having spoken transparency, clarity and accountability. I resist the to it already, it is not up to him simply to make an temptation at this time of night to start asking questions extempore statement; he has to go through a procedure of the Minister about this matter, but I fear that it is to achieve that. going to take a very long time to sort this one out. One of the reasons why my own Government had not completed this task is that it is fiendishly difficult and Lord Davies of Stamford: My Lords, I am very fiendishly complex. I fear that this Bill is not going to grateful for that guidance. In accordance with it, I make it any less fiendishly difficult and fiendishly have moved my amendment. I think that the Minister complex, but it also might make the whole process a and I are still some distance apart. Once again, I put it lot less accountable. to the noble Earl that a price that is not based on This was in fact the final group of amendments that competition is not an economic price. A price that is we had put down in our suite of amendments to reform negotiated with one vendor and based on the costs of the whole of Part 3 in Committee. The noble Baroness, that vendor, even if they are very transparent, is not an Lady Murphy, is quite right. If you give the responsibility economic price. You cannot rest content that you have and accountability for the tariff to the Secretary of done an honest job if you accept that price. A fixed State, you undermine the role of the economic regulator. price that may be even remotely correct one day will Yes, that was the point of this amendment in the very not be correct in six months’ time or 12 months’ time. first place. She got it in one—well done. You need to continue to put that price to some sort of competition discipline. These points are fundamental. At this time of night, it is probably best if we do not The noble Baroness, Lady Murphy, came nearer to the delay proceedings. I beg leave to withdraw the amendment. mark when she suggested that the reasons for the Government’s position had more to do with PR, politics Amendment 201A withdrawn. or the media than with the economics of the health service. I was grateful to the noble Earl for the offer to Amendments 201B and 201C not moved. discuss this matter in greater detail. Given that offer, I shall not detain the House further on this matter and will not put my amendment to a vote. Clause 117 : The national tariff: further provision Amendment 201D withdrawn. Amendment 201D Moved by Lord Davies of Stamford Clause 118 : Consultation on proposals for the 201D:Clause 117, page 125, line 14, at end insert— national tariff “(5A) Where the Commissioner of a health service receives an offer from a service provider licenced under section 80 at a price below the price that is payable by virtue of this Chapter, the Amendments 202 to 204 commissioner shall seek the agreement of Monitor before placing Moved by Earl Howe any order for this service. (5B) Before acceding to a request from a commissioner in 202: Clause 118, page 125, line 18, leave out “licence holder” accordance with subsection (5A), Monitor shall satisfy itself and insert “relevant provider” that— 203: Clause 118, page 127, line 9, at end insert— (a) the quality of the service to be provided will not be “(13A) In this section, a “relevant provider” is— inferior to the same service provided by another supplier (a) a licence holder, or at the price payable by virtue of this Chapter, and (b) such other person, of such description as may be (b) there will be no consequent unacceptable impact on the prescribed, as provides health care services for the structure or capabilities of the NHS. purposes of the NHS.” (5C) Subject to the considerations under subsection (5B), Monitor shall not unreasonably withhold its consent.” 204: Clause 118, page 127, line 10, leave out subsection (14)

Amendments 202 to 204 agreed. Lord Davies of Stamford: I would like to move— Amendment 204A not moved. The Deputy Speaker (Lord Haskel): The noble Lord cannot move it. Clause 119 : Consultation: further provision Lord Davies of Stamford: Am I not allowed to say a word in response to the Minister? Amendment 204B not moved. 1767 Health and Social Care Bill[6 MARCH 2012] Health and Social Care Bill 1768

Clause 120 : Responses to consultation Clause 124 : Local modifications of prices: agreements

Amendments 214D to 214F not moved. Amendments 205 to 211 Moved by Earl Howe Amendment 214G 205: Clause 120, page 127, line 38, leave out “licence holders” and insert “relevant providers” Moved by Lord Warner 206: Clause 120, page 128, line 1, leave out “licence holders” 214G: After Clause 125, insert the following new Clause— and insert “relevant providers” “Applications under section 125: notification of commissioners 207: Clause 120, page 128, line 7, leave out “licence holders” (1) This section applies where Monitor— and insert “relevant providers” (a) receives an application under section 125, and 208: Clause 120, page 128, line 10, leave out “licence holders” (b) is satisfied that the continued provision for the purposes and insert “relevant providers” of the NHS of health care services to which a condition 209: Clause 120, page 128, line 21, leave out “licence holder’s” in the applicant’s licence under section 98(1)(i), (j) or (k) and insert “relevant provider’s” applies is being put at significant risk by the configuration of certain health care services provided for those purposes. 210: Clause 120, page 128, line 22, at end insert— (2) In subsection (1), a reference to the provision of services is “( ) In this section and section 121 and Schedule 12, “relevant a reference to their provision by the applicant or any other provider” has the meaning given in section 118(13A).” provider. 211: Clause 120, page 128, line 23, leave out subsection (7) (3) Monitor must as soon as reasonably practicable notify the National Health Service Commissioning Board and such clinical Amendments 205 to 211 agreed. commissioning groups as Monitor considers appropriate— (a) of its receipt of the application, and Amendment 211A not moved. (b) of its reasons for being satisfied as mentioned in subsection (1)(b). (4) Monitor must publish for each financial year a list of the Schedule 12 : Procedure on references under notifications under this section that it has given during that year; section 120 and the list must include for each notification a summary of Monitor’s reasons for being satisfied as mentioned in subsection (1)(b). Amendment 212 (5) The Board and clinical commissioning groups, having received a notification under this section, must have regard to it in Moved by Earl Howe arranging for the provision of healthcare services for the purposes 212: Schedule 12, page 381, line 18, leave out “licence holder” of the NHS.” and insert “relevant provider” Amendment 214G agreed. Amendment 212 agreed. Clause 126 : Correction of mistakes Clause 121 : Determination on reference under section 120 Amendments 215 and 216 Moved by Earl Howe Amendments 213 and 214 215: Clause 126, page 132, line 16, leave out “licence holder” Moved by Earl Howe and insert “relevant provider” 213: Clause 121, page 128, line 32, leave out “licence holders” 216: Clause 126, page 132, line 25, at end insert— and insert “relevant providers” “( ) In this section, “relevant provider” has the meaning given 214: Clause 121, page 129, line 20, leave out “licence holders” in section 118(13A).” and insert “relevant providers” Amendments 215 and 216 agreed. Amendments 213 and 214 agreed. Clause 127 : Health special administration orders Amendment 214A not moved. Amendment 216A not moved. Clause 122 : Changes following determination on reference under section 120 Clause 128 : Objective of a health special administration Amendment 214B not moved. Amendment 216B not moved. Clause 123 : Power to veto changes proposed under section 122 Clause 129 : Health special administration regulations

Amendment 214C not moved. Amendment 216C not moved. 1769 Health and Social Care Bill[LORDS] Health and Social Care Bill 1770

Clause 130 : Transfer schemes Clause 139 : Power of Secretary of State to set limit on levy and charges Amendment 216D not moved. Amendment 217ZG not moved. Clause 131 : Indemnities Clause 140 : Consultation Amendment 216E not moved. Amendment 217ZH not moved. Clause 132 : Modification of this Chapter under Enterprise Act 2002 Clause 141 : Responses to consultation Amendment 216F not moved. Amendment 217ZJ not moved. Amendment 217 not moved. Clause 142 : Amount payable Clause 133 : Duty to establish mechanisms for providing financial assistance Amendment 217ZK not moved. Amendment 217ZA not moved. Clause 143 : Investment principles and reviews Clause 134 : Power to establish fund Amendment 217ZL not moved. Amendment 217ZB not moved. Clause 144 : Borrowing Clause 135 : Applications Amendment 217ZM not moved. Amendment 217ZC not moved.

Clause 145 : Shortfall or excess of available funds, etc. Clause 136 : Grants and loans

Amendment 217ZD not moved. Amendment 217ZN not moved.

Clause 137 : Power to impose charges on Clause 146 : Secretary of State’s duty as respects commissioners variation in provision of health services

Amendment 217ZE not moved. Amendment 217ZP not moved.

Clause 138 : Imposition of levy Consideration on Report adjourned.

Amendment 217ZF not moved. House adjourned at 9.59 pm. WS 145 Written Statements[6 MARCH 2012] Written Statements WS 146

Portsmouth Historic Dockyard. The department also Written Statements intends to grant rights to occupy and use the dry dock and land around the ship together with associated services Tuesday 6 March 2012 access rights and leases to use those buildings in the dockyard which support the ship—put simply, a complete package which would allow the trust to take over HMS “Victory” responsibility for the ship’s maintenance, repair and Statement operation as a heritage attraction. The current maintenance contract for the ship operated by the department would be novated to the trust; and The Parliamentary Under-Secretary of State, Ministry the department would provide project management of Defence (Lord Astor of Hever): My right honourable expertise to the trust for a period of up to two years friend the Minister for Defence Personnel, Welfare while the trust develops its own in-house expertise. and Veterans (Andrew Robathan) has made the following 3. As a unique and irreplaceable national heritage Written Ministerial Statement. asset, it is difficult to measure the value of HMS I am pleased to inform the House that I am today “Victory” in financial terms but the ship (together laying a departmental minute, the contents of which with its associated historical artefacts, fixtures and are replicated below, which proposes the transfer of fittings) has an insurance valuation of £10 million. HMS “Victory” and its contents and fittings to the Apart from the ship itself, the value of the material in HMS Victory Preservation Trust. This is a new charitable store and the cradle is assessed as £5 million. The total trust which has been established for the purpose as value of the gift is therefore £15 million. part of the National Museum of the Royal Navy. 4. Although the property of the charitable trust, the The proposed transfer would enable private donations ship would be licensed to the MoD so that she can to supplement current defence provision for support remain a commissioned warship and flagship of the of the ship and I am pleased to inform the House that Royal Navy. This allows for the development of a the Gosling Foundation has generously agreed to donate partnership between the department and the voluntary £25 million to support the establishment of this new sector for the support of this important element of trust. The Ministry of Defence (MoD) has agreed to British and naval history and enables the sustainment match this donation with a further capital grant of of this iconic symbol of our history for the benefit of £25 million. Together, this amounts to a very sizeable future generations. endowment and would enable HMS “Victory” to be 5. The Treasury has approved the proposal in principle. sustained for the benefit of future generations. If, before 23 March, a Member signifies an objection This transfer is part of a wider agreement which by giving notice of a Parliamentary Question or a would enable HMS “Victory” to remain as a Motion relating to the minute, or by otherwise raising commissioned warship under her commanding officer the matter in the House, final approval of the gift will and ship’s company. Currently the flagship of the be withheld pending an examination of the objection. Second Sea Lord, she will become the flagship of the First Sea Lord. Office of Tax Simplification The detailed arrangements proposed, which are Statement subject to legal and contractual discussions and trade union consultation, envisage that the trust would assume responsibility for the ongoing maintenance contract. The Commercial Secretary to the Treasury (Lord The MoD would provide project management assistance Sassoon): My honourable friend the Exchequer Secretary in support of the contract for up to two years to to the Treasury (David Gauke) has today made the enable the trust to grow this expertise. I expect the new following Written Ministerial Statement. arrangements to be in place by 1 April 2012. The Government launched the Office of Tax Departmental minute dated 6 March 2012 concerning Simplification (OTS) in July 2010 to provide independent the gift of HMS “Victory” to the HMS Victory advice on simplifying the tax system. Preservation Trust The OTS has today published an interim report on 1. It is the normal practice when a government its review into pensioner taxation and the final report department proposes to make a gift of a value exceeding on the review of approved (tax advantaged) employee £250,000 for the department concerned to present to share schemes, both commissioned by the Government the House of Commons a minute giving particulars of on 5 July 2011. the gift and explaining the circumstances; and to The Government asked the OTS to carry out a two refrain from making the gift until 14 parliamentary stage review of pensioner taxation. In this first stage sitting days after the issue of the minute, except in of the review the OTS has identified and examined at cases of special urgency. a high level those parts of the tax system which cause 2. The gift to be made in this case, subject to the most complexity for pensioners. The OTS will finalisation of legal and contractual arrangements, is analyse these areas in more depth before formulating to a charitable trust controlled by the National Museum recommendations in the second stage of its review. of the Royal Navy (NMRN) and comprises the historic The Government also asked the OTS to carry out a warship HMS “Victory” together with its collection, two stage review of employee share schemes. The first fixtures, fittings and contents, material in store, technical stage of the review looked at the four tax-advantaged information and the cradle on which the ship rests in schemes. The OTS was asked to evaluate the four WS 147 Written Statements[LORDS] Written Statements WS 148 schemes, identifying where they create complexities Supply and Appropriation (Anticipation and disproportionate administrative burdens for scheme and Adjustments) Bill [HL] users, and examining areas where the schemes could be simplified. The OTS will look at the simplification Statement of unapproved schemes in the second stage of its review. The Commercial Secretary to the Treasury (Lord Sassoon): I have made a Statement under Section 19(1)(a) Electronic copies of both reports have been placed of the Human Rights Act 1998 that, in my view, the in the Libraries of the House. provisions of the Supply and Appropriation (Anticipation and Adjustments) Bill are compatible with the convention The Government will respond to the OTS reports rights. A copy of the Statement has been placed in the in the Budget, on 21 March 2012. Library of the House. WA 399 Written Answers[6 MARCH 2012] Written Answers WA 400 Written Answers CAFCASS Question Tuesday 6 March 2012 Asked by Lord Wills To ask Her Majesty’s Government what consideration they have given to including an Abdel Hakim Belhadj assessment of whether children have been seen by Question an officer of the Children and Family Court Advisory Asked by Lord Lester of Herne Hill and Support Service (CAFCASS) in the key performance indicators for CAFCASS. [HL15979] To ask Her Majesty’s Government whether British intelligence officials were involved in the The Parliamentary Under-Secretary of State for rendition of Abdel Hakim Belhadj to Tripoli in Schools (Lord Hill of Oareford): The Secretary of 2004. [HL15976] State for Education does not plan to set such a measure as part of the key performance indicators for CAFCASS as it is for the CAFCASS board to make decisions The Minister of State, Foreign and Commonwealth about the most effective social work practice to deliver Office (Lord Howell of Guildford): This issue is the the service’s statutory duties. subject of an ongoing police investigation. It is also government policy not to comment on matters of intelligence and national security Coastal Pathways Question Asked by Lord Stoddart of Swindon Afghanistan Question To ask Her Majesty’s Government, further to the Written Answer by Lord Taylor of Holbeach on Asked by Lord Stoddart of Swindon 8 February (WA 65), why the lengths of coastal To ask Her Majesty’s Government whether, in paths were given in kilometres rather than in miles. the light of the numbers of British troops fighting [HL15757] in Afghanistan, they are directly involved in peace talks between the Taliban, the United States and The Parliamentary Under-Secretary of State, the Government of Afghanistan; and, if not, why Department for Environment, Food and Rural Affairs not. [HL15969] (Lord Taylor of Holbeach): It has been accepted practice to use kilometres for such matters since 1965. The length of England’s coastline is 2,748 miles. The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): The UK has always supported an Afghan-led political process to help Egypt bring peace and stability to Afghanistan. At the start Question of the year, the Taliban issued a statement expressing a willingness to participate in a political office in Qatar. Asked by Lord Hylton President Karzai recently publicly endorsed the idea of an office in Qatar. We are supporting the Government To ask Her Majesty’s Government how they of Afghanistan in its efforts to take this process forward. have raised with the Government of Egypt access in that country to fair reviews and justice for those in administrative detention, held without charge or brought before a military court. [HL15896] Armed Forces: Medals Question The Minister of State, Foreign and Commonwealth Asked by Lord Ashcroft Office (Lord Howell of Guildford): The Prime Minister, my right honourable friend the Member for Witney To ask Her Majesty’s Government whether they (Mr Cameron), the Secretary of State for Foreign and will consider proposing that the Military Cross Commonwealth Affairs, my right honourable friend awarded to Captain John Hamilton during the 1982 the Member for Richmond (Yorks) (Mr Hague) and the Falklands conflict should be upgraded to a Victoria Deputy Prime Minister, my right honourable friend Cross. [HL15894] the Member for Sheffield Hallam (Mr Clegg) all called upon the Egyptian authorities to end the state of emergency during their visits to Egypt in 2011. Through The Parliamentary Under-Secretary of State, Ministry discussions with Egyptian counterparts and in public of Defence (Lord Astor of Hever): No. At this distance statements, Foreign and Commonwealth Office Ministers from the event it would be wrong to question the have urged the authorities to end the use of military assessments made at the time by the commanders courts in trials against civilians, and raised their concerns intimately involved in reaching the decisions as to about the treatment of those detained for peacefully what honour Captain Hamilton should be awarded. expressing their views. WA 401 Written Answers[LORDS] Written Answers WA 402

We will continue to urge the Egyptian authorities to The Parliamentary Under-Secretary of State, Department put in place legislation that complies with international of Energy and Climate Change (Lord Marland): Data standards on human rights and fundamental freedoms on UK production of oil from 1970 to 2010 are available including in dealing with public order issues. We will in DUKES table 3.1.1 on the DECC website at: http:// also continue to advocate for the right to a fair trial for www.decc.gov.uk/en/content/cms/statistics/ all suspects. energy_stats/source/oil/oil.aspx. The provisional figure for 2011 was 51,980 thousand tonnes. The data cover all UK oil production. They Energy Act 2011 thus cover production of crude oil and natural gas Question liquids and include oil fields onshore, in the Irish Sea Asked by Lord Marlesford and west of Shetland as well as in the UK sector of the North Sea. To ask Her Majesty’s Government when they expect to publish the statutory instrument to implement Asked by Lord Kennedy of Southwark the private rented sector compulsion provisions for energy efficiency under the Energy Act 2011. To ask Her Majesty’s Government how many oil [HL16128] exploration wells have been established in the North Sea in each year since 1974. [HL16032] The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland): Our Lord Marland: The number of offshore oil and gas emphasis is currently on finalising the details of the exploration wells drilled in the UK each year since Green Deal in time for its launch later this year, and we 1974 can be found on DECC’s website via the following intend to turn our attention to the private rented sector link: http://og.decc.uk/en/olgs/cms/explorationpro/wells/ regulations after we have put the Green Deal framework dril_activity/dril_activity.aspx and is also set out below. in place. The low level of exploration drilling during 2011 was due to a number of factors including complex geology Energy: Fracking (which meant longer drilling timescales for particular wells—affecting rig availability), a number of rigs Question concentrating on development rather than exploration Asked by Lord Kennedy of Southwark drilling, and very bad weather during the latter part of To ask Her Majesty’s Government when they the year. We hope to see improvements in exploration expect to make a decision on whether or not to drilling levels during this year. resume fracking tests. [HL15907] Year Exploration Appraisal The Parliamentary Under-Secretary of State, Department 1974 66 34 of Energy and Climate Change (Lord Marland): Following 1975 75 36 the seismic tremors experienced in Poulton-le-Fylde in 1976 61 30 Lancashire in April and May last year, DECC asked 1977 67 42 Cuadrilla to carry out a geomechanical study. The 1978 35 26 study, which confirms a connection between the hydraulic 1979 35 15 fracturing at the Preese Hall-1 well and the seismic 1980 32 22 activity which took place on 1 April and 27 May 2011, 1981 47 26 was submitted to DECC, and published by the company, 1982 68 48 on 2 November 2011. It is currently being reviewed by 1983 79 56 DECC, in consultation with the British Geological 1984 107 84 Survey and other independent experts. 1985 91 63 No decision on the resumption of these hydraulic 1986 75 43 fracture operations will be made until the implications 1987 74 69 of this report, together with further information which 1988 93 79 has been submitted by the company, has been fully 1989 94 83 considered, and appropriate practical measures have 1990 157 67 been approved by Ministers to minimise the risk of 1991 103 78 such events occurring again. Other key regulators will 1992 77 55 be consulted before any such decision is taken. We 1993 51 60 expect to be in a position to make a decision within the 1994 61 39 next few months. 1995 60 34 1996 71 42 1997 59 36 Energy: Oil 1998 46 32 Questions 1999 18 17 Asked by Lord Kennedy of Southwark 2000 27 34 2001 24 35 To ask Her Majesty’s Government what were the production figures for North Sea oil in each year 2002 16 29 2003 26 19 from 1974. [HL16031] WA 403 Written Answers[6 MARCH 2012] Written Answers WA 404

Year Exploration Appraisal Finance: Guarantee Schemes Questions 2004 30 34 2005 41 37 Asked by Lord Roberts of Conwy 2006 29 41 2007 34 77 To ask Her Majesty’s Government how many 2008 44 61 loans, with what total value, have been made to 2009 23 41 small and medium-sized enterprises in Wales under the Enterprise Finance Guarantee scheme.[HL15923] 2010 28 34 2011 14 28

The Parliamentary Under-Secretary of State, Department Energy: Smart Meters for Business, Innovation and Skills (Baroness Wilcox): Question As of January 2012, 727 small and medium-sized businesses in Wales had been offered loans under the Asked by Baroness Smith of Basildon Enterprise Finance Guarantee scheme with a total value of £64.74 million. Of these, 637 loans have been To ask Her Majesty’s Government what role drawn down, with a total value of £56.53 million. they foresee for local authorities in the roll-out of smart metering. [HL16118] Asked by Lord Roberts of Conwy To ask Her Majesty’s Government to what extent The Parliamentary Under-Secretary of State, Department the Export Enterprise Finance Guarantee scheme of Energy and Climate Change (Lord Marland): The and the continuation of the Enterprise Capital smart meter programme is backed by the Government, Funds programme have been applied to Wales, and but it is the energy suppliers who will be responsible for have promoted investments there. [HL15924] supplying and installing the estimated 53 million gas and electricity meters for domestic and smaller non-domestic properties. Baroness Wilcox: The pilot Export Enterprise Finance The rollout will be supported by a consumer Guarantee scheme and the Enterprise Capital Funds engagement strategy, which is likely to use third parties programme are available to eligible businesses throughout such as community groups, charities and local authorities the UK. to reassure consumers and to help households use smart meters to reduce their energy consumption. The Export Enterprise Finance Guarantee scheme There is therefore potentially a role for local authorities was introduced in April 2011 to facilitate short-term in consumer engagement. We are planning to consult export finance to viable businesses lacking collateral on our approach to consumer engagement shortly. or track record to secure commercial facilities. As of February 2012, no business in Wales has used the scheme. Energy: Wind Farms The Government have committed £200 million to Question the Enterprise Capital Funds programme over the next four years. As of September 2011, there have Asked by Lord Kennedy of Southwark been three investments in businesses in Wales since To ask Her Majesty’s Government what is their 2006, with a total value of £3.7 million. estimate of how many gigawatts of power will be generated by wind farms in the United Kingdom in 2020. [HL15905] Government Departments: Running Costs The Parliamentary Under-Secretary of State, Department Question of Energy and Climate Change (Lord Marland): Our Asked by Lord Laird central scenario in the Renewable Energy Roadmap, published in July 2011, suggests that onshore wind To ask Her Majesty’s Government what was the could generate 24 to 32 terawatt hours (TWh) and cost of running the Department for Education in offshore wind 33 to 58 TWh in 2020. These ranges each of the past three years. [HL15190] represent respectively approximately 7% to 9% from onshore wind and 9% to 16% from offshore wind of the estimated 364TWh of total electricity generated in The Parliamentary Under-Secretary of State for the UK in 2020. Schools (Lord Hill of Oareford): The cost of running The renewables roadmap sets out a targeted plan of the department for the past three financial years is as actions for eight key technologies, including onshore follows: and offshore wind, in order to meet our 15% renewable energy target. The roadmap includes illustrative “central Financial Year Outturn (£m) ranges” for these key technologies and while they do 2008-09 185 not represent technology specific targets or the level of 2009-10 184 our ambition, they do show what could be deployed by 2020. 2010-11 172 WA 405 Written Answers[LORDS] Written Answers WA 406

Government Departments: Staff The Parliamentary Under-Secretary of State, Department Question of Energy and Climate Change (Lord Marland): The management structure for the Department of Energy Asked by Lord Laird and Climate Change (DECC) and each of its non- departmental public bodies (NDPB) are published on To ask Her Majesty’s Government what is the data.gov.uk and their own individual websites as part management structure of the Department of Energy of the Coalition Government’s transparency agenda. and Climate Change and each of its agencies; how The data are reviewed and updated on a six-monthly many managers are at each level in each body; and basis. The next review is due in May 2012. The structure, what is the cost per year of their salaries and which is in organogram form, can be viewed by following expenses. [HL16043] the links in the table below.

Department URL

DECC http://reference.data.gov.uk/gov-structure/organograrn/?dept=decc&post=1 Coal Authority http://reference.data.gov.uk/gov-structure/organogram/?pubbod=the-coal-authority&post=1 Committee for Climate http://www.theccc.org.uk/about-the-ccc/transparency Change Civil Nuclear Police Authority http://reference.data.gov.uk/gov-structure/organogram/?pubbod=cnpacivil-nuclear-constabulary&post=CC Nuclear Decommissioning http://reference.data.gov.uk/gov-structure/organogram/?pubbod=nda&post=A Authority

Managerial grades are executive officer grade (or Iraq: Camp Liberty equivalent) or above. Not all people working in these Questions grades will be a line manager. The data on individuals in those grades are published and updated for DECC Asked by Lord Maginnis of Drumglass and all of its NDPBs on a monthly basis on the department’s website and can be viewed at: http:// To ask Her Majesty’s Government, further to www.decc.gov.uk/media/viewfile.ashx?filetype= the Written Answer by Lord Howell of Guildford 4&filepath=11/access-information/3344-decc- on 27 February (HL15532), whether they will place in workforce-management-information.xls& the Library of the House a copy of the memorandum minwidth=true. of understanding signed by the Government of Iraq in respect of Camp Liberty infrastructure and In the case of the Nuclear Decommissioning Authority, facilities. [HL15981] the number of people working at executive officer grade (or equivalent) or above as at 30 September 2011 is 300. The Minister of State, Foreign and Commonwealth The salaries for those in management grades (or Office (Lord Howell of Guildford): The memorandum equivalent) working in DECC and its NDPBs is shown of understanding governing the voluntary transfer of in the table below and represents the annualised salary residents of Camp Ashraf to Camp Liberty is a document costs as at 30 September 2011. These data are consistent between the United Nations (UN) and the Government with the organogram structure referred to in the first of Iraq. It has not been made publicly available and I paragraph. regret that the Government are not in a position to place a copy of this memorandum in the Library of Department Salary costs the House. DECC £52,640,624 The UN has said publicly, however, that under the Coal Authority £4,790,191 terms of the memorandum of understanding, conditions Committee for Climate Change £290,342 at Camp Liberty would meet basic humanitarian Civil Nuclear Police Authority £12,141,441 standards including: adequate accommodation; dining Nuclear Decommissioning £6,192,415 and food preparation facilities; hygiene infrastructure Authority (water and sanitation); medical care; community spaces; separate accommodation and spaces for women; and facilities for religious observance. The UN conducted a thorough assessment of the conditions at the camp before the relocation of the first residents from Ashraf The expenses claimed by managers are recorded to Liberty. The residents can also use contractors to electronically by the type of expense and the team or group further improve conditions at Camp Liberty. to which they are assigned and not to each individual Regarding access to lawyers and families, we would person or grade. Therefore, to identify which expenses hope that the Government of Iraq would adhere to the which relate to managers would involve searching all undertakings we understand they have made to allow paper records and would incur disproportionate costs. such access. With regard to personal belongings, we Details of all expenses in excess of £500 are published understand that those transferring from Camp Ashraf on a monthly basis and can be viewed at: http://www. to Camp Liberty would be able to take personal decc.gov.uk/en/content/cms/accesstoinform/ belongings with them. Iraqi authorities and representatives expenditure /spend_over_500/spend_over_500.aspx. of the residents have discussed what this includes. WA 407 Written Answers[6 MARCH 2012] Written Answers WA 408

The UN continues to monitor the situation at Camp Asked by Lord Maginnis of Drumglass Liberty on a daily basis, and officials at our embassy in Baghdad are in close touch with the UN. We To ask Her Majesty’s Government, further to continue to support the UN in its efforts to find a the Written Answer by Lord Howell of Guildford durable and peaceful solution to the issue of the future on 27 February (HL15532), whether, under the of the residents of Camp Ashraf. terms of the Memorandum of Understanding signed by the Government of Iraq in respect of Camp Asked by Lord Maginnis of Drumglass Liberty, it was agreed that refugees transferring from Camp Ashraf would have access to their To ask Her Majesty’s Government, further to property and belongings. [HL15986] the Written Answer by Lord Howell of Guildford on 27 February (HL15532), whether, under the terms of the Memorandum of Understanding signed Lord Howell of Guildford: I refer the noble Lord to by the Government of Iraq in respect of Camp the Answer I gave to Parliamentary Question HL15981. Liberty, it was agreed that there should be a fresh water supply available to those who moved from Camp Ashraf. [HL15982] Israel and Palestine Questions Lord Howell of Guildford: I refer the noble Lord to Asked by Lord Hylton the Answer I gave to Parliamentary Question HL15981 To ask Her Majesty’s Government how they Asked by Lord Maginnis of Drumglass have raised with the Government of Israel access in that country to fair reviews and justice for those To ask Her Majesty’s Government, further to in administrative detention, held without charge or the Written Answer by Lord Howell of Guildford brought before a military court. [HL15898] on 27 February (HL15532), whether, under the terms of the Memorandum of Understanding signed by the Government of Iraq in respect of Camp The Minister of State, Foreign and Commonwealth Liberty, it was agreed that there should be free Office (Lord Howell of Guildford): The Parliamentary movement and communication between the refugees’ Under-Secretary of State for Foreign and Commonwealth families and lawyers within the Camp. [HL15983] Affairs, my honourable friend the Member for North East Bedfordshire (Mr Burt), raised Israel’s extensive use of administrative detention with the Israeli Lord Howell of Guildford: I refer the noble Lord to ambassador on 23 February. Our ambassador to Israel the Answer I gave to Parliamentary Question HL15981. also raised these issues with the Israeli Attorney-General on 24 February. Asked by Lord Maginnis of Drumglass Our officials in Tel Aviv have raised our concerns To ask Her Majesty’s Government, further to with the Israeli authorities about the broader questions the Written Answer by Lord Howell of Guildford of administrative detention and the treatment of on 27 February (HL15532), whether, under the Palestinian prisoners, including in the context of the terms of the Memorandum of Understanding signed Khader Adnan case. We continue to encourage the by the Government of Iraq in respect of Camp Israeli authorities to comply with their obligations Liberty, there are to be reasonable medical services under international law, including in their own policies provided; and what has been achieved in this on detention and the treatment of Palestinian prisoners. respect. [HL15984] We are in regular touch with the International Committee of the Red Cross, which monitors the situation closely. Lord Howell of Guildford: I refer the noble Lord to Asked by Baroness Tonge the Answer I gave to Parliamentary Question HL15981. To ask Her Majesty’s Government how they Asked by Lord Maginnis of Drumglass evaluate the success of their ongoing representations To ask Her Majesty’s Government, further to to the Government of Israel with regard to securing the Written Answer by Lord Howell of Guildford a two-state solution; and whether talks with other on 27 February (HL15532), whether, under the European Union member states have produced any terms of the Memorandum of Understanding signed different approaches to negotiation. [HL15918] by the Government of Iraq in respect of Camp Liberty, there were arrangements for United Nations Lord Howell of Guildford: The UK continues to Assistance Mission for Iraq and United Nations High make high-level representations to the Government of Commissioner for Refugees representatives (1) to Israel and to the Palestinians on the urgency of making be accommodated within the Camp, or (2) to be progress towards a two-state solution. In pursuit of able to visit the Camp freely. [HL15985] this aim, we view as a positive development the efforts of King Abdullah of Jordan and the Jordanian Foreign Minister, Nasser Judeh, to bring the parties together Lord Howell of Guildford: I refer the noble Lord to under the framework of the quartet statement of the Answer I gave to Parliamentary Question HL15981. 23 September 2011. WA 409 Written Answers[LORDS] Written Answers WA 410

There is European Union consensus on the need for Asked by Lord Hylton both parties to engage in actions that build confidence and create the environment of trust necessary to ensure To ask Her Majesty’s Government whether they meaningful negotiations, leading to a comprehensive and the quartet are making representations to the and lasting peace. The UK fully supports the conclusions Government of Israel about recent alleged attempts of the Foreign Affairs Council on the Middle East by settlers to storm the al-Haram al-Sharif Peace Process on 23 January 2012: http://www. compound. [HL15991] consilium.europa.eu/uedocs/cms_Data/docs/ pressdata/EN/foraff/127466.pdf. Lord Howell of Guildford: Our officials in Tel Aviv Asked by Lord Hylton discussed the violence that happened in, and around, Jerusalem during 24 February with the Israeli authorities To ask Her Majesty’s Government whether they on 27 February. We are in touch with the office of the and the quartet are making representations to the quartet representative on this issue. Government of Israel about recent uprootings Asked by Lord Hylton of olive trees on land at Turmus Aya, north of Ramallah. [HL15989] To ask Her Majesty’s Government whether they and the quartet are making representations to the Government of Israel about any encroachment by the outpost of Amona, near Ofra, onto land in Zone B. [HL15992] Lord Howell of Guildford: The Government fully appreciate that attacks on olive groves are particularly Lord Howell of Guildford: The Parliamentary Under- painful to Palestinians, as the olive tree is both a Secretary of State for Foreign and Commonwealth national symbol and the sole source of income for Affairs, my honourable friend the Member for North many subsistence farmers. We have raised our concerns East Bedfordshire (Mr Burt), most recently raised our about the impact of this type of action by Israeli concerns over settlement building with the Israeli Deputy settlers with the Israeli Co-ordinator of Government Foreign Minister on 27 February. Our ambassador Activities in the Occupied Palestinian Territories and and officials in Tel Aviv have also raised our concerns with the Israeli Defence Force. Staff at our consulate- on these issues recently with the Co-ordinator of general in Jerusalem and our embassy in Tel Aviv will Government Activities in the Occupied Palestinian continue to raise these issues as appropriate. Territories and the Ministry of Foreign Affairs. We view any attempts to change the facts on the We are clear that the existence of Israeli outposts in ground as a serious provocation likely to raise tensions the Occupied Palestinian Territories, and their expansion and cause unnecessary suffering to ordinary Palestinians, including in Area B, is illegal under international law as well as being harmful to the peace process and in and Israel’s commitments under the road map. contravention of international law. We will continue to monitor the situation closely. Asked by Baroness Tonge Asked by Lord Hylton To ask Her Majesty’s Government what representations they have made to the Government To ask Her Majesty’s Government whether they and of Israel concerning its treatment of detainees in the quartet are making representations to the prisons, in the light of the report by Physicians for Government of Israel about the arrest by Israeli Human Rights Israel and the Public Committee soldiers in January 2011 of Islam Dar Ayyoub from the Against Torture in Israel. [HL16038] village of Nabi Saleh, and his treatment and interrogation; and whether they are co-operating with the United Nations Special Rapporteur on torture and other Lord Howell of Guildford: The Parliamentary Under- cruel, inhuman or degrading treatment or punishment Secretary of State for Foreign and Commonwealth regarding this case. [HL15990] Affairs, my honourable friend the Member for North East Bedfordshire (Mr Burt), raised Israel’s extensive use of administrative detention with the Israeli ambassador to London on 23 February and Deputy Foreign Minister Ayalon on 27 February.Our ambassador Lord Howell of Guildford: Our officials in Tel Aviv also raised these issues with the Israeli Attorney-General are aware of this case, but they have not raised this on 24 February. issue with the Israeli authorities or had discussions Our officials in Tel Aviv have raised our concerns with the United Nations Special Rapporteur on with the Israeli authorities about the broader questions torture. of the treatment of Palestinian prisoners, including in The Parliamentary Under-Secretary of State for the context of the case of Mr Khader Adnan. We Foreign and Commonwealth Affairs, my honourable continue to encourage the Israeli authorities to comply friend the Member for North East Bedfordshire (Mr Burt), with their obligations under international law, including raised Israel’s extensive use of administrative detention in their own policies on detention and the treatment of with the Israeli Ambassador to London on 23 February Palestinian prisoners. and Deputy Foreign Minister Ayalon on 27 February. We are in regular touch with the International Our ambassador to Tel Aviv also raised these issues Committee of the Red Cross, which monitors the with the Israeli Attorney-General on 24 February. situation closely. WA 411 Written Answers[6 MARCH 2012] Written Answers WA 412

Libya The Welsh Government have submitted a business Question case to the Department for Transport on the electrification of the Cardiff Valley lines, which is under consideration Asked by Lord Hylton by the department. My right honourable friend the Secretary of State for Wales has also made representations To ask Her Majesty’s Government how they to the department on this matter. have raised with the Government of Libya access in that country to fair reviews and justice for those in administrative detention, held without charge or brought before a military court. [HL15899] Railways: Fares The Minister of State, Foreign and Commonwealth Question Office (Lord Howell of Guildford): We have raised Asked by Lord Bradshaw consistently with the Libyan authorities the importance of providing fair treatment to all those held in detention. To ask Her Majesty’s Government, further to Immediately following the reports of mistreatment in the Written Answer by Earl Atlee on 28 February Misrata in January, the Parliamentary Under-Secretary (WA347), how many times they have found breaches of State for Foreign and Commonwealth Affairs, my in the price of regulated fares in each of the past honourable friend the Member for North East five years; and what enforcement action was taken Bedfordshire (Mr Burt), raised our concerns with the in each instance. [HL16073] Libyan Deputy Foreign Minister in early February. The Prime Minister, my right honourable friend the Member for Witney (Mr Burt) and the Minister of Earl Attlee: There has been one breach identified State for Foreign and Commonwealth Affairs, my involving the price of regulated fares in the past five honourable friend the Member for Taunton Dean years on Southeastern in 2010. This, and a number of (Mr Browne), reiterated these concerns to the Libyan other issues, led to Southeastern introducing a new Interior Minister. Wider transitional justice issues, passenger’s charter including Delay Repay compensation including the need for fair trials and due process for in 2011. those held without charge, remain a regular feature of our dialogue with the Libyans. Our ambassador is in close contact with Libyan officials on these issues. The Libyan Deputy Prime Minister announced on Railways: Procurement 31 January that officials from the Ministries of Justice Question and Interior would visit detention centres and begin Asked by Lord Bradshaw the process of bringing all detention facilities under central government control. The UK has already provided To ask Her Majesty’s Government what is their training to Libyan judges and legal professionals and timetable for the delivery of new carriages for rail is providing further support, including on prison reform. franchises based outside London and the south-east The UK will continue to follow closely the situation which are suffering from overcrowding. [HL15605] and provide support and assistance to the transitional Government to help the Libyan authorities ensure justice for all members of Libyan society Earl Attlee: The 106 new-build Pendolino carriages which are planned for the InterCity West Coast franchise Railways: Electrification are on schedule to be delivered by 31 December 2012 Question (with some already in use). Asked by Lord Berkeley The Department for Transport announced on 29 February 2012 that an agreement has been reached To ask Her Majesty’s Government what assessment with London Midland and First TransPennine Express they have made as to the business case for for the procurement of new-build electric multiple (1) electrification of the line between Swansea and carriages. This procurement will help address crowding Cardiff, and of the Cardiff Valley network, with on routes into Birmingham, Manchester, Sheffield, electric Intercity Express Programme trains, and Leeds, Liverpool and Newcastle as well as London (2) electrification of the Cardiff Valley network and Euston. It is intended that these new-build carriages bimodal Intercity Express Programme trains; and will be in service by December 2014. what are the differences between each business The department is also expecting to introduce around case. [HL15626] 600 new-build carriages through the Intercity Express Earl Attlee: The Government’s assessment is set out Programme, where additional capacity will be provided in the document Railway Investment on the Great into south Wales, the west of England, Yorkshire, the Western Main Line and in Wales, which has been north-east and Scotland. These carriages are expected deposited in the House of Commons Library. to be introduced between 2017 and 2019. The assessment concluded that electrification to In addition, major orders will be placed for Thameslink Cardiff with bi-mode trains to Swansea delivered a and Crossrail in the coming years. benefit-cost ratio of two. Electrification from Cardiff We are also negotiating with another train operator to Swansea remains under consideration but the benefit- in relation to additional carriages cascaded from other cost ratio was much lower. routes. WA 413 Written Answers[LORDS] Written Answers WA 414

Renewable Heat Incentive the Written Ministerial Statement, the conference Questions communiqué, and the conclusions of the separate humanitarian meeting, copies of which have been Asked by Baroness Smith of Basildon placed in the Library of the House. To ask Her Majesty’s Government when they expect the second stage of the Renewable Heat Turkey Incentive to be implemented. [HL16121] Question The Parliamentary Under-Secretary of State, Department Asked by Lord Hylton of Energy and Climate Change (Lord Marland): We are developing options for longer-term support for renewable To ask Her Majesty’s Government whether they heat in the domestic sector and details on timing for will discuss with the Government of Turkey the development and introduction of support will be published arrest on 20 February of Ms Arzu Mucu and in the near future. Ms Çimen Altürk, both members of the Peace and Democracy Party, and the arrests in Istanbul of Asked by Baroness Smith of Basildon 10 persons connected with the Kurdistan Communities To ask Her Majesty’s Government whether they Union. [HL15988] have assessed the potential contribution of the second phase of the Renewable Heat Incentive to reducing The Minister of State, Foreign and Commonwealth fuel poverty in rural households. [HL16123] Office (Lord Howell of Guildford): The Government do not plan to discuss the arrests of Ms Arzu Mucu Lord Marland: Rural areas lacking access to the gas and Ms Çimen Altürk, or the arrests in Istanbul of grid face higher heating costs through their use of 10 persons connected with the Kurdistan Communities more expensive fuels and consequently are likely to Union with the Government of Turkey. have the greatest potential to benefit from changing We expect high legal and judicial standards to be their heating source to renewable sources. observed in line with Turkey’s responsibilities as a We are developing options for longer term support member of the Council of Europe, the Office for for renewable heat in the domestic sector and details Security and Co-operation in Europe and also in line on timing for development and introduction of support with international law. Our embassy in Ankara will will be published in the near future. continue to monitor the situation.

Somalia Question UK Trade and Investment Questions Asked by Viscount Waverley Asked by Baroness Nicholson of Winterbourne To ask Her Majesty’s Government what assessment they have made of the outcome of the recent London To ask Her Majesty’s Government, further to conference on Somalia; what were the positive the Written Answer by Lord Green of Hurstpierpoint results; and which of their objectives were not on 29 November 2011 (WA 65-6), whether they will met. [HL15962] publish the analysis undertaken by UK Trade and Investment and the Foreign and Commonwealth The Minister of State, Foreign and Commonwealth Office to identify their 20 priority high-growth markets Office (Lord Howell of Guildford): The London conference in Britain Open for Business. [HL16015] on Somalia was primarily aimed at reinvigorating the international approach to Somalia. As the Prime Minister The Minister of State, Department for Business, set out in his speech of 14 November announcing the Innovation and Skills & Foreign and Commonwealth conference, our aims were: Office (Lord Green of Hurstpierpoint): UKTI, working “to tackle the underlying causes of these issues [of piracy and with the FCO, deployed a range of criteria to prioritise terrorism] and deliver a new international approach to Somalia. its focus on emerging and high growth markets, including: It will form the basis for co-ordinated and sustained international leadership on Somalia, bringing together international partners market size and potential for growth; and key institutions like the United Nations and the African the Government’s assessment of their strategic Union. It aims to generate agreement on how to tackle the shared political and economic importance; threats, and support a broader, more inclusive political process to bring security and stability to Somalia”. an assessment of the security situation; We believe that we have met all of these objectives. strength of scientific, technical and research base; Britain and the international community agreed at the performance of UK businesses relative to competitors; conference: to inject new momentum into the political market match with UK capability; and process, and ensure an inclusive process to end the transition in August; to strengthen AMISOM (the the presence of active local partners keen to African Union Mission in Somalia) and help Somalia strengthen trading links with the UK. develop its own security forces; to help build stability These criteria enabled us to assess the importance at a local level; and to step up action to tackle pirates of specific markets, their potential for growth, and and terrorists. These are all positive results. For the the need for the Government to help British business full details of the agreements reached I refer you to interests. WA 415 Written Answers[6 MARCH 2012] Written Answers WA 416

Further details of the economic analysis that Both papers are available on the BIS website at: underpinned the selection of markets identified in http://www.bis.gov.uk/analysis/economics/main- Britain Open for Business can be found in the following economics-papers. Department for Business Economics papers: BIS Economics paper No. 8: UK Trade Performance: Water Supply: Waste Water Patterns in UK and Global Trade Growth (November Question 2010); Asked by The Earl of Selborne BIS Economics paper No. 13: International Trade and Investment—the Economic Rationale for To ask Her Majesty’s Government which were Government Support (May 2011); and the tidal combined sewer overflows which released BIS Economics paper No. 17: UK Trade Performance over 900,000 tonnes of storm sewage into the River across Markets and Sectors (February 2012). Thames on 5 and 6 June 2011, as noted in paragraph Available at: http://www.bis.gov.uk/analysis/economics 2.6.18 of the National Policy Statement for Waste /main-economics-papers. Water; and what are their estimates of the tonnage attributable to each tidal combined sewer overflow. Asked by Baroness Nicholson of Winterbourne [HL15908]

To ask Her Majesty’s Government, further to The Parliamentary Under-Secretary of State, Department the Written Answer by Lord Green of Hurstpierpoint for Environment, Food and Rural Affairs (Lord Taylor on 29 November 2011 (WA65-6), how they ascertain of Holbeach): Below are the figures for the tidal combined and evaluate the demand from United Kingdom sewer overflows on 5 and 6 June 2011, derived from businesses for the services of UK Trade and Investment data submitted by Thames Water to the Environment abroad. [HL16017] Agency:

Date Outfall Volume (m3)

Lord Green of Hurstpierpoint: Evidence about the 05-Jun-11 Greenwich 114,156 potential demand from UK businesses for the services Lots Road 27,720 of UK Trade and Investment abroad is obtained from Western 85,590 regular independent surveys of UK businesses which are either currently internationalising, or thinking of Hammersmith 12,000 doing so in the near future, both users and non-users Abbey Mills 99,000 of UKTI trade services. Results from these surveys are 06-Jun-11 Abbey Mills 476,600 published in full on the UKTI web site at: http://www.ukti. Lots Road 47,700 gov.uk/uktihome/aboutukti/ourperformance/ Western 72,300 research/barrierstointernationalisation.html. Total 935,066 The surveys provide evidence both about the nature Also: and extent of business need for services of this type, 06-Jun-11 MOGDEN STW 233,000 storm tanks and about the characteristics of businesses which are storm tanks most likely to benefit from using the services. The surveys identify the different types of issues, including potential barriers to entering new markets, which are Waterways: Canals faced by different types of businesses in different Question circumstances and markets. Asked by Lord Stoddart of Swindon Evidence about the demand from UK businesses for these services is also available from UKTI’s To ask Her Majesty’s Government, further to Performance and Impact Monitoring Survey (PIMS), the Written Answer by Lord Taylor of Holbeach on which tracks take-up by UK businesses with different 13 February (WA 142), why canal lengths were characteristics, as well as quality and impact of the given in kilometres rather than in miles. [HL15756] services, and the benefits which result. Full reports are available at: http://www.ukti.gov.uk/uktihome/aboutukti The Parliamentary Under-Secretary of State, Department /ourperformance/performanceimpactandmonitorings for Environment, Food and Rural Affairs (Lord Taylor urvey.html. of Holbeach): It has been accepted practice to use kilometres as a measure since 1965. In addition to these surveys, UKTI draws on a wide range of other research to inform its assessment of It may be helpful to clarify that British Waterways business need. This evidence is reviewed in two recent is responsible for about 1,485 miles of navigable canals BIS economics papers, which also draw out policy in England, all of which are open for tourism except implications of the evidence: when closed for maintenance and repairs. The Environment Agency has one canal, and that is open BIS Economics Paper No 5: Internationalisation to tourists. There are at least 143 miles of navigable of Innovative and High Growth SMEs (March 2010); and canals managed by a wide range of other bodies, BIS Economics Paper No 13: International Trade and including local authorities, port authorities and charitable Investment—the Economic Rationale for Government trusts. Some canals under restoration by canal trusts/ Support (May 2011). societies may still be open to tourists.

Tuesday 6 March 2012

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. HMS “Victory” ...... 145 Supply and Appropriation (Anticipation and

Office of Tax Simplification...... 146 Adjustments) Bill [HL] ...... 148

Tuesday 6 March 2012

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Abdel Hakim Belhadj...... 399 Government Departments: Staff...... 405

Afghanistan ...... 399 Iraq: Camp Liberty...... 406

Armed Forces: Medals...... 399 Israel and Palestine ...... 408

CAFCASS...... 400 Libya ...... 411

Coastal Pathways...... 400 Railways: Electrification ...... 411

Egypt ...... 400 Railways: Fares ...... 412

Energy Act 2011 ...... 401 Railways: Procurement ...... 412

Energy: Fracking ...... 401 Renewable Heat Incentive...... 413

Energy: Oil...... 401 Somalia...... 413

Energy: Smart Meters ...... 403 Turkey...... 414

Energy: Wind Farms...... 403 UK Trade and Investment ...... 414

Finance: Guarantee Schemes ...... 404 Water Supply: Waste Water...... 416

Government Departments: Running Costs ...... 404 Waterways: Canals...... 416 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL15190]...... 404 [HL15908]...... 416

[HL15605]...... 412 [HL15918]...... 408

[HL15626]...... 411 [HL15923]...... 404

[HL15756]...... 416 [HL15924]...... 404

[HL15757]...... 400 [HL15962]...... 413

[HL15894]...... 399 [HL15969]...... 399

[HL15896]...... 400 [HL15976]...... 399

[HL15898]...... 408 [HL15979]...... 400

[HL15899]...... 411 [HL15981]...... 406

[HL15905]...... 403 [HL15982]...... 407

[HL15907]...... 401 [HL15983]...... 407 Col. No. Col. No. [HL15984]...... 407 [HL16017]...... 415

[HL15985]...... 407 [HL16031]...... 401

[HL15986]...... 408 [HL16032]...... 402 [HL16038]...... 410 [HL15988]...... 414 [HL16043]...... 405 [HL15989]...... 409 [HL16073]...... 412 [HL15990]...... 409 [HL16118]...... 403 [HL15991]...... 410 [HL16121]...... 413

[HL15992]...... 410 [HL16123]...... 413

[HL16015]...... 414 [HL16128]...... 401 Volume 735 Tuesday No. 276 6 March 2012

CONTENTS

Tuesday 6 March 2012 Questions Railways: Great Western Franchise...... 1659 Universities: Anti-Semitism...... 1661 Universities: European Languages...... 1664 Gypsies and Travellers ...... 1666 Business of the House Motion on Standing Orders...... 1668 Schools (Specification and Disposal of Articles) Regulations 2012 Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012 Children Act 2004 Information Database (England) (Revocation) Regulations 2012 Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2012 Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012 Occupational and Personal Pension Schemes (Automatic Enrolment) (Amendment) Regulations 2012 Automatic Enrolment (Offshore Employment) Order 2012 Motions to Refer to Grand Committee...... 1669 Supply and Appropriation (Anticipation and Adjustments) Bill Second Reading (and remaining stages)...... 1669 Health and Social Care Bill Report (5th Day)...... 1669 Written Statements...... WS 145 Written Answers...... WA 399