Grand Committee
The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, welcome to the Grand Committee. In the likely event of a Division in the Chamber, the Committee will adjourn for 10 minutes.
Baroness Garden of Frognal
My Lords, perhaps I may remind noble Lords that the timing for this debate is very tight. If Back-Bench speakers make sure that as soon as the clock shows four minutes, they sit down, or preferably just a few seconds beforehand, that will help us to stay on time and thus give everyone their due time to speak.
Education: Personal, Social and Health Education
(11 years ago)
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Baroness Massey of Darwen
To ask Her Majesty’s Government how they will promote Personal, Social and Health Education in schools in order to develop pupils’ skills and knowledge relevant to growing up in the United Kingdom.
Baroness Massey of Darwen
My Lords, having finally secured this debate, it is a great pleasure to have so many colleagues speaking in it, and I thank them all, and the Minister, for taking part. I come to this debate with one agenda. All of us are concerned about children and young people, and that they get the best possible chance both in school and in life. I very much look forward to what others have to say and how the Minister will respond.
I want to say at the start that I consider PSHE more of a concept than an actual subject in the curriculum, and I shall expand on that. I realise that things have moved on since we last attempted to hold this debate. There are proposals for the science curriculum, there is to be a curriculum review, and a Statement on PSHE. I know that the Minister understands the importance of PSHE because we have talked about it, and I want to ask him if after this debate he will meet interested colleagues to discuss how we might move forward positively. I know that the PSHE Association is seeking to form a coalition of interested organisations to support PSHE in schools. Would he also be prepared to meet such a coalition? I think that there is some confusion about what PSHE actually is, and I shall be interested to see if colleagues agree and whether they support my perceptions of it.
I shall begin with three brief anecdotes about the importance of PSHE. First, recently I was speaking at a reception held by a large and successful multinational company. I looked at its website to find out what the company looks for in its employees, and I was impressed to see a huge emphasis on communication skills, team work and the fostering of good relationships. That echoes what the CBI has said, which is that young people should be “rounded and grounded” by the time they leave school. The second anecdote is about a primary school in east London. The head teacher, who co-ordinates PSHE in the school, and six of its pupils came to talk to the All-Party Parliamentary Group for Children, which I chair, about their experiences. A few years ago, the school was in trouble as the result of disruptive behaviour, poor achievement and low morale. The new head teacher instituted a programme of PSHE in the school. It now has policies on behaviour, it has been made explicit that respectful behaviour towards others is a cornerstone of school life, and specific lessons are held on, for example, friendship, bullying and helping others. The school is now high-flying and successful. It is not surprising that a report commissioned by the Department for Education in 2012 found that,
“children with higher levels of emotional, behavioural, social and school wellbeing, on average, have higher levels of academic achievement and are more engaged in school”.
The third anecdote concerns meeting a school doctor who said to me, “You know, if you instil good health habits in children, they stick. Also, I know many examples where children have influenced parental health behaviour, like in smoking and diet”. I want to explore what the problem is about the Government making PSHE statutory. I know that it is a clunky and bureaucratic word, and we may want to explore that as well.
There are some myths about PSHE. One is that it is a single school subject such as maths or history, that teachers are not trained to do it, and that until they are trained it cannot be delivered. Another myth, as we all know, is that it is all about inappropriate sex education. Every child should be able to do as well as possible in school. A school that creates an ethos of respect and learning will support such achievement. All teachers in such a school are teaching PSHE, either in the classroom or outside it, which is about kindness, working in teams, listening to others and thinking about how one’s behaviour affects others. Teachers are helping children to gain confidence in their own abilities.
Most subjects, in fact, contribute to PSHE in one form or another—for example, PE, music, English and biology. This is why I have some concerns about the potential diminishing of, for example, art and sport in schools. It is not one thing or the other. It is not just a matter of either being academic or learning personal and social skills. Both should live together and, of course, in many schools they do.
Schools may have specific lessons on, for example, drugs, alcohol, sexual relationships, first aid, healthy eating and internet safety. The lessons may begin with a simple concept in primary school. We know that young children will not appreciate the chemical make-up of certain foods. They can appreciate that fruit is good for you and some things are not. Young children cannot appreciate the niceties of contraception, or the danger of sexually transmitted infections or early pregnancy. They can appreciate that respecting other people and being a good friend makes for good relationships. They can appreciate that some behaviours are risky; after all, we teach them how to cross roads and not to run in corridors.
I recognise that teachers cannot know about many issues related to health education. When I taught it many years ago, we had a programme of visitors, and many schools still have one—St John Ambulance for first aid, the police for road safety, a nurse for sexual relationships and diet, an MP or local councillor to talk about government and citizenship, or guides and scouts on teamwork and volunteering. All this is important stuff.
Every child matters. Every child needs PSHE—some more than others and some desperately. Some schools do a great job. Others, perhaps a minority, are, frankly, not interested. This is why, to protect children and to enhance their education, we need a strong statement from the Government about the importance of PSHE. Schools have for many years delivered PSHE in many different ways. I am asking for all schools to be required to deliver it and ensure that they are doing so, however it is delivered.
We know that PSHE teaches children to think. Is that not what education is about? I know that UNICEF’s Rights Respecting Schools initiative has overwhelming evidence that school ethos can be improved by emphasis on relationships and behaviour. We know that children grow and change. Inputs should be made every year as they gain knowledge and experience, such as in English and maths. Pupils need to discuss these issues. They live in a complex world—life is very complex nowadays for children. The internet is wonderful but has its drawbacks, as we all know. Children need the skills to make informed decisions.
What I mean by statutory PSHE is two-fold. First, every school should have a policy and ethos that parents and pupils understand about what kind of relationships and behaviours will be promoted in that school. Secondly, every school should ensure that there is a programme, year on year, for every child in which they can learn, according to age, about drugs and alcohol, first aid, the importance of healthy food and exercise, sex and relationships, risky behaviour and so on. Parents, governors and inspectors would understand this.
Do the Government understand that for some children feeling safe in school and developing self-respect and confidence are precursors to being able to learn and achieve? Do the Government realise that certain health behaviours, such as obesity, are so risky that they will cost the country millions of pounds to deal with in the future? Such health behaviours can be prevented or mitigated, partly, in school.
I will briefly restate my case. First, statutory provision for PSHE does not mean a prescribed programme. Statutory means that every school is expected to deliver a clear statement on behaviour and ethos. Secondly, every school is expected to ensure that, year on year, pupils will be entitled to learn about what constitutes a healthy lifestyle. It is not really that complicated. There are examples of excellent practice. I am asking simply that all pupils in all schools should have the right to this programme of PSHE. Again, I thank noble Lords and look forward to the debate.
Baroness Perry of Southwark
My Lords, I thank the noble Baroness, Lady Massey of Darwen, for whom I have enormous respect and regard, for securing this debate and for the excellent speech with which she has opened it. This is an important debate. It raises the question of just what the school curriculum should provide for young people and how that should be delivered.
In my hearty endorsement of the importance of personal, social and health education, I would like to broaden the debate to more than simply what PSHE in the curriculum can offer to young people. I hasten to say that I in no way question the place for PSHE in the curriculum, but I question whether this range of topics does not belong just as much to what parents, family and wider society should be providing, and to all that can and should be provided by good teachers of traditional subjects in a broad and balanced curriculum.
Much of the sense of self, and the confidence that we seek to develop in children, come not from what a teacher says but the way in which the school conducts its business, its overall ethos. In its briefing for this debate, the PSHE Association claims that PSHE education instils “knowledge, skills and confidence”. But these come from achievement across the whole curriculum. Confidence belongs to a well educated, happy young person, who has experienced a school life where aspiration and hard work are rewarded, teachers command respect and pupils have the confidence that comes from high achievement.
Experience shows that giving young people real responsibility, treating them with respect and applying rules that honour fairness and honesty are the most effective tools for developing both self-respect and respect for others. Offering trust to young people inspires trustworthiness, which can reduce bullying and violence as well as everyday disruptive behaviour. PSHE should not be seen as a substitute for the more powerful ways of conveying values and instilling respect for others.
I know that many noble Lords will emphasise the importance of both drugs education and sex education—the noble Baroness has already said that is not the whole story. I endorse the need for this, although I would expect biology and PE teachers to have a role here as well. The more young people understand the whole story of dangers in taking drugs, including excess alcohol consumption, the more likely they will be able to make informed choices. However, again I caution against the assumption that information will in itself determine behaviour. The same applies to sex education. Young people are subject to all too many external factors as or more powerful than anything a teacher says in whatever lesson. The school can balance those external factors only by the way in which its whole ethos conveys a sense of integrity and self-confidence in young people, enabling them to stand against some of the pressures that lead to difficult and destructive behaviour.
The 2011 Demos report notes the importance of,
“the ability to communicate effectively, apply oneself to a task, commit to long-term goals, and work effectively in a team”.
These skills and attitudes are the job of every subject teacher—science, maths, history, English, PE, music and all the rest—and to claim them as the province of PSHE can be damaging. Indeed, the way in which the whole school’s ethos is imbued with the values that create confident, achieving—and, yes, happy—young people must be the focus of all those concerned, from the governors, head and teachers to the caretakers and kitchen staff. PSHE has an important role to play in this, but it is only a part and it should take care not to claim territory that belongs to the curriculum as a whole and to the totality of the school’s message. This is too important for us to get it wrong.
Lord Storey
My Lords, I thank the noble Baroness, Lady Massey, for instigating this very important debate. Whether it is healthy lifestyles; whether it is sex and relationship education; whether it is education about drugs, alcohol or tobacco; whether it is dealing with bullying or abuse issues; whether it is bereavement or mental health problems; whether it is developing positive relationships or parenting skills; whether it is about employability or enterprise proficiency, should we not, as a society, ensure that our young people have the opportunity at school to understand and cope with these issues? Do we not owe it to young people, and to society as a whole, to educate them to understand these matters? It is simply not good enough for the “voices off-stage” to say, “Leave it to the parents”, or, indeed, for individual schools to decide whether or not they want to teach these subjects. We need to be strong and say, “Yes, these issues do matter”. They matter in particular to the well-being of our young people.
PSHE education should not be an add-on for schools to “take off the shelf” as and when they please. It should be an integral part of each pupil’s learning and of the learning ethos of each and every school. How do we know that it is important to teach these activities? There is a huge bank of research to draw on. Take, for example, the use and effectiveness of anti-bullying strategies in schools: research shows that PSHE education was unanimously rated as having a positive effect in preventing bullying. Take drugs and alcohol: a national poll of more than 7,000 young people shows that 95% said that PSHE education had helped them think about the risks of drugs, and another 80% said that it had helped them avoid them altogether.
Obesity has become the biggest public health crisis facing the UK and, indeed, the National Health Service. It is no good saying that we should educate children about healthy food if we do not include schools in addressing the issue. The recent high-profile child abuse cases again show how important it is to keep children and young people safe by developing their knowledge, skills and confidence. PSHE education provides the opportunity to explore these issues in detail and offers the first line of defence against violence and abuse. Interestingly, the youth democracy group, Bite the Ballot, carried out a survey of 5,000 young people. Those who took part in the survey said that there was a lack of attention paid to these issues in school. The organisation has put its money where its mouth is and recommends in its published youth manifesto,
“raising awareness, encouraging responsibility and promoting the wellbeing of young people in society”
through the enhancement of PSHE in schools.
The good news is that in the most recent Ofsted inspection, which covered an albeit small sample of schools, PSHE education was judged to be “good” or “outstanding” in three-quarters of the schools visited, and at least “satisfactory” in all but one of the schools surveyed. Among the issues raised was that parents were rarely consulted about their children’s PSHE education. I think that they should be consulted about it. However, good practice included schools using peer-mentoring schemes whereby pupils were trained to use their skills to support their classmates. The most effective model seen was one in which discrete, regular PSHE lessons were supplemented with cross-curricular activities. PSHE must be part of every pupil’s schooling. It should be part of initial training programmes and of the Ofsted inspection framework. In this way we can ensure that our young people are best equipped to face the problems and challenges that no doubt will confront them in their future years.
Baroness Masham of Ilton
My Lords, I thank the noble Baroness, Lady Massey of Darwen, for securing this vital debate. Our National Health Service is going through a very difficult period with the financial constraints put upon it. We have more cases of sexually transmitted diseases than any other European country. Some of these conditions are becoming resistant to drug treatment. Health education is vital if people are to take responsibility for their health and well-being. Prevention of infectious diseases is crucial. We need to do far better. Health education has been neglected for far too long. It should be part of all school curriculums so that children grow up realising how important good health is. They are our future.
We need to equip children with skills to prevent infections and help others by knowing what to do when bleeding, heart attacks, unconsciousness and serious injury occur. For instance, they should know the importance of not sitting someone up when they have a suspected spinal fracture. Children at school should learn first aid. They can learn fast. Emergency life support—ELS—skills are particularly important in cases of cardiac arrest, when the heart stops pumping blood. It takes only a few minutes for irreversible brain damage to occur. One has only to remember when the noble Lord, Lord Brennan, collapsed in the Chamber of your Lordships’ House and his life was saved by the quick action of the noble Lord, Lord Darzi. Properly trained children can be as effective as adults. They are often present when emergencies occur. If first aid was a mandatory part of education in schools and colleges, many people would benefit, including teachers.
Children need to learn about healthy eating and the dangers of drug and alcohol abuse. The House of Lords Select Committee on HIV and AIDS in the UK found that current provision of teaching on HIV in schools is inadequate. Many children will experience accidents in the home, on the playing fields or taking part in sport. They will witness their parents or grandparents, or members of the public, suffer strokes and heart attacks, or school friends and siblings having diabetic, asthmatic or epileptic attacks, or choking on a sweet. Surely, preventing illness and learning to save lives will make young people and their teachers more capable and responsible, and useful members of society.
The Lord Bishop of Ripon and Leeds
My Lords, I, too, am very grateful to the noble Baroness, Lady Massey, both for asking this Question and for the impressive way in which she set the context for our discussion this afternoon. PSHE is a crucial element of our education system and one which could be the key to much of our learning, because it is an area in which values can be inculcated and discussed. I am reminded of that WB Yeats quotation:
“Education is not the filling of a pail, but the lighting of a fire”.
PSHE is one of the places in which that fire should be lit. It is crucial that teachers are trained in the development of those values that should underpin our culture and society.
It is only too easy to take up a default position which concentrates on particular symptoms of cultural failing, whether that is teenage pregnancy, obesity or whatever it may be. There were times in my own children’s education when, so far as I could see, the one unforgivable sin in our society was smoking. There is much to be said for discouraging smoking but far more for encouraging reflection on what values should inform our society, whether they are respect for others, listening to minority voices, generosity to those in need, truth-telling or whatever. The chapter on values in the Children’s Society report The Good Childhood is an excellent starting place to develop a concept not only of a “values school” but of a “values society”, where young people can be inspired and encouraged.
All that can be summed up in the need to develop our emotional intelligence. The life skills by which we make choices are even more crucial than the individual targets on pregnancy or alcoholism, valuable though those are. I would be grateful if the Minister would comment on how emotional intelligence is itself best targeted. In this context, I particularly value the phrase “training the habits of the heart” to describe this search.
Secondly, I would value comment on the relationship between PSHE and religious studies. Religious studies can so easily become a factual description of the rituals and beliefs of particular religious traditions. While that has its value, it is much more crucial that young people are taught to explore their own and others’ spirituality, whether that is in a religious or a non-religious context. The relationship between spirituality and emotional intelligence seems to be two very closely related concepts that are not quite the same thing. It is something that our education system ought to be exploring, and it ought to be important in the way we encourage children.
It is crucial that this debate leads to a real endorsement and enhancement of the quality of PSHE. I look forward to the Minister’s comments on how that can best happen.
Lord Aberdare
My Lords, I shall address just one topic; the need for first aid and life-saving skills to be a mandatory part of the curriculum, ideally as an element of PSHE. I hope to do so without repeating too many of the excellent points made by my noble friend Lady Masham of Ilton. In doing so, I declare my interest as a trustee of St John Cymru Wales, the leading first aid, youth and volunteering charity in Wales.
Every year in the UK, some 60,000 people suffer cardiac arrests outside hospital; two-thirds at home, and the other third in a public setting. With every minute that passes their chances of survival decrease by about 10%. Therefore, whether there is someone on the scene trained in the necessary skills, such as providing CPR or to use a defibrillator if available, can be a matter of life and death. By the way, nearly half of the cardiac arrests that occur in public are witnessed by bystanders who are not infrequently children.
There is clear evidence that first aid training works. It is already compulsory in many countries including Norway, Denmark, France and 36 US states, and 80% of residents in Scandinavia and Germany have first aid skills. The survival rate in Norway from shockable cardiac arrests is 52%; in the UK it varies from between 2% and 12% depending on where you are unlucky or lucky enough to be. In Seattle, where 50% of the population are trained in emergency life saving, the survival rate is two and a half times ours.
These are not difficult skills to acquire and the basic training can take as little as two hours. Several organisations offer well designed teaching packages to deliver it, including the British Heart Foundation and the Red Cross, as well as St John itself. I have been on two training courses here at Westminster; one run by the All-Party Parliamentary Group on First Aid, on which I serve along with my noble friend, and the other by the Parliament Safety, Health and Wellbeing service. Luckily, nobody has yet had to depend on my skills, and I hope that they will not have to.
St John Cymru Wales’s young life saver scheme offers training covering 11 different aspects of first aid, from initial assessment to getting the patient into the recovery position, and dealing with issues such as choking, asthma, bleeding, fractures, burns, poisoning and heart attacks, as well as giving CPR. The whole course takes seven to eight hours and is offered at both primary and secondary school levels from age seven upwards.
Since 2005 about 20,000 children have been taught basic first aid by St John in Wales, and there are a growing number of stories of young people successfully applying their skills to save lives, often of a parent, sibling or school friend. In getting myself briefed for this debate, I have been inundated with examples. For instance, a 10 year-old schoolboy at Abercarn primary school, Elliot Dunn, saved his mother from choking on a hazelnut using the technique he had learnt at school.
The British Heart Foundation estimates the cost of offering such training as no more than about £2,200 per school. Not only are these valuable skills to possess, but they are fun to learn, highly practical and can enhance children’s sense of self-worth. A BHF survey in 2011 found that 86% of teachers felt that emergency life saving should be in the curriculum, as did 70% of parents, and 78% of children wanted to be taught it. I am sympathetic to the Government’s desire to give schools as much freedom as possible to determine the details of their own curriculum. However, in relation to first aid skills, and despite what teachers, parents and students want, this approach just is not working. Only 13% of young people leave school with any life saving training, which is less than one in seven.
First aid and emergency life saving skills should be an essential part of
“pupils’ skills and knowledge relevant to growing up in the United Kingdom”,
as stated in today’s Motion. Despite good intentions all round, not nearly enough schools are teaching these skills. We should aim to be up with the field, not lagging behind in giving our students the skills to prevent their fellow citizens losing their lives when they could be saved by prompt and effective first aid.
Lord Eden of Winton
My Lords, effective personal, social and health education can be achieved only through an active partnership between teachers, parents and government. It is primarily for that reason, given that PSHE embraces all people who might have any interest in or concern with education, that it cannot be defined in statutory terms. It is part of the life of a school, and any headmaster or headmistress worth their salt is going to ensure that PSHE is part of the education of those children. They cannot operate the school effectively without it. It has to be there.
None the less, a substantial framework has been set out by the Department for Education, which elaborates in enormous detail the sort of teaching that could be provided under this heading for children aged between five and seven. It is very comprehensive but we have to be careful about how much we try to push into a child at an early age. We must guard against force-feeding children with adult knowledge and information. They can acquire it best in their own time and in their own development. Of course it needs stimulus and encouragement but it should not be thrust down their throats.
As the noble Baroness, Lady Massey, said, it is in the earliest years that the habit of learning can best be acquired. It is then, when the mind is at its freshest and its capacity to absorb knowledge is at its greatest, that attitudes for future conduct can best be shaped. This was well underlined in a report sent out by the Children’s Society. Its leaflet states:
“Childhood is the time of our most rapid learning, of absorbing extraordinary amounts of new information and acquiring new skills and interests. The pleasure, sense of self and personal growth that children find in learning and discovery is something that is essential for each and every child’s emotional well-being”.
However, we need to be alert to the fact that children are these days subject to the most enormous pressures and hideous influences. Noble Lords may well have seen an interesting article in the New Statesman recently—an essay by Rafael Behr, headed “Generation X-rated”, and with the sub-heading:
“Never has it been so easy for young children to watch violent pornography”.
Claire Perry, the honourable Member for Devizes, who advises the Prime Minister on childhood and internet safety, told Rafael Behr:
“Some parents are in digital oblivion. They have no idea what their children are doing with computers and phones”.
I read another article recently by Barbara McMahon in the Times on 26 March, in which she said:
“Research suggests that children of preschool age are spending increasing time with their faces a few inches away from screens instead of entertaining themselves with traditional toys or reading books”.
Lisa Guernsey, author of Screen Time, was quoted as saying:
“The greatest touch screen in the world of a child is an adult face”.
This is not alarmist talk. It is happening in the real world and children have what has been referred to as an electronic bedsit that parents are often not allowed to enter. We have to guard ourselves against these things and be alert to what is going on in the real world. That requires participation in all elements of children’s education.
Baroness Morris of Yardley
My Lords, I, too, congratulate my noble friend Lady Massey on leading this debate. Her support for this subject has been assiduous and she has shown real leadership over the years that I have known her. I thank her for keeping it on the agenda.
I have listened carefully to what noble Lords have said and agree with the main thrust of the argument, but with one or two caveats or differences of emphasis which I will just point out. Of course it need not be a discrete subject and of course it is about the ethos of the school and things like that. To sum it up, it is about what we teach, how we teach and the type of place a school is. All those things are important, and need a bit of space on the curriculum. Personal, social and health education is a body of knowledge as well as a set of attitudes and a number of skills. Sometimes, we almost find refuge in the view that we do not need to worry, as it will be covered by good English teachers or good maths teachers, or by the good old PE teacher or the religious education teacher. Because we have had that attitude and have never really got the subject to the top of the priority list, it has never been taught as effectively as it might be. There is a big difference between teaching it and children learning. Very often, we tick the box as “done” when we have made sure that it has been taught, but we really should tick the box when we are sure that students have learnt. There is still a big gap between teaching it and students learning it in this area of the curriculum and of knowledge. When we think about what we want for our own children—when we describe the sort of citizens we would want children to be—we mention much of what would be covered in this area of the curriculum and of knowledge. That is the nature of its importance.
Crucially, although I do not think that children do not have the facts about some of the difficult issues to do with health education or sex education, I believe that they do not necessarily have the ability to make the right decision at the right time. We all know from our own lives how difficult that is. It is very much an adult skill which we need children to gain pretty early on in their lives. That will not be taught in maths or in English, or necessarily in science or PE. Around that is what is missing when we have tackled how this subject should be taught. I am traditional about this. We know what makes a good teacher, what makes effective teaching and what brings success, but we do not have them in PSHE, which is the problem.
I have five comments that I want to throw into the debate. First, the subject area needs to be valued: schools, students and teachers need to know it is important. I have not heard the Secretary of State make a speech about PSHE and I am not really sure what the Government’s policy is. I cannot think of even a handful of ways in which this Government have given the message to the school system that PSHE is important. Secondly, we need recognition for pupil progress and achievement. We have that in the academic subjects but we do not have that in this subject. Thirdly, we need to train teachers. Fourthly, there is a best practice pedagogy. There are good and bad ways of peer mentoring, and teachers need to know what the effective ways are. Fifthly, it would be great to have one of our leading heads say, “I started my career as a PSHE teacher”. That route to school leadership has not yet happened. Although no one is against PSHE, my worry is that we are not sufficiently for it to get it to the top of the agenda. We can make nice speeches and feel comfortable with it, but unless we look at why students are not learning it as effectively as they might do, we will not make the progress that this subject certainly needs and deserves.
The Earl of Listowel
My Lords, I will make three points. First, I strongly support the calls of the noble Baronesses, Lady Massey of Darwen and Lady Morris, for a strengthening of the position of PSHE in the curriculum. Earlier this afternoon, I had the good fortune to speak to pupils and teachers from Leamington Spa’s Trinity Catholic School, which is particularly strong on pastoral care and particularly reaches out to young people who are looked after by local authorities. I spoke to one pupil who has her PSHE lesson on Monday mornings, in which she is currently studying child labour in the developing world. She was animated; it was interesting her. I spoke to one of the teachers responsible for teaching the subject in the school, who said that the status of this subject was low among other teachers and it is not respected. She also said that it is difficult to teach and teachers need to be well trained to deliver it properly. She pointed out that, particularly in her school, many children do not hear what they need to know from their parents, and they get that in these classes.
My second point concerns governors. I was speaking to the same head teacher, I think, as the noble Baroness, Lady Massey—the primary school head teacher who had turned around three schools using PSHE. I listened with great care to what the noble Baroness, Lady Perry of Southwark, and the noble Lord, Lord Eden of Winton, said about school ethos. Interestingly, the head teacher used PSHE as the basis for developing an ethos within the school that respected relationships, where relationships between pupils, pupils and teachers, and the school and parents were fundamental. She also found, as the noble Baroness, Lady Massey, said, that if you get the relationships right, the learning takes place. I hope that is somewhat reassuring to the noble Baroness and the noble Lord. To some extent I share the noble Lord’s concern about the possible hijacking of some political correctness in terms of sex education. We need to watch that carefully but should not stop doing this because of those concerns.
The head teacher I spoke to had the first chartered PSHE education teacher in her school, in 2008. Since then, we have three chartered PSHE teachers; there may be more now. What is happening to move that ahead? Why is the progress so slow? Perhaps I may also ask the Minister about training for teachers in child development. This should be available to all teachers and would underpin success, particularly in this area as it deals with the emotional development of children.
I remember working with a 10 year-old child about five years ago on a summer play scheme on which I had a placement. This child was attention-seeking and getting into fights with other children; he caused us all a great deal of anxiety and we were not able to attend so well to other children because of him. In the lunch hour, he would sit in an old tyre and rock himself. After 10 days of working with that child, I sat in the back of a minibus with him and heard that he was just about to be moved into his new adoptive home. This child had experienced trauma, he was at a very difficult stage in his life, and of course he had regressed towards the behaviour of a three year-old or a five year-old.
It is very important that teachers understand child development so that they can understand why a child is behaving in such a way. Is it simply misbehaviour? Is something going on in the home? Teachers should have the understanding to be able to work their way through this. I ask the Minister: how is he working with Charlie Taylor, the head of Education England, to ensure that with the welcome progress being made in teacher training, this essential element of child development is being embedded?
The Lord Bishop of Chester
My Lords, no debate on this subject in your Lordships’ House would be quite complete without a bishop talking about sex. To adapt my right reverend friend’s remarks: how do we light the fire for this subject in our schools?
There is a difficult background to the sexual—by which I mean the mainly heterosexual and relational —chaos that is all too evident in our society, which impacts in particularly negative ways upon children and young people. We have heard reference to the statistics for sexually transmitted diseases—I think there are more than 1 million consultations a year in this country; quite horrendous—and then divorce, the abortion rate, underage pregnancy and much more. All this points to a great deal of misery; in fact, probably the greatest source of poverty in our society comes from relational breakdown and all that goes with it. In addition, we have the distasteful flood-tide of pornography, to which the noble Lord, Lord Eden, rightly referred, which cheapens sexuality in all sorts of ways.
So what do we do? Improvements to sex-and-relationship education must be part of the answer. Of course, some call for a curriculum that is determined by central government. Alongside this there is a demand for compulsory sexual relationship education in primary schools, which, as I understand it, is currently at the discretion of the governing body although it needs to have a policy on the subject. For my part, I can see the case for sex-and-relationship education in the late primary years so long as it does not feed the premature sexualisation of children and childhood, to which the noble Lord, Lord Eden, referred. That is a real problem today, driven largely by commercial interests. These are sensitive issues and I believe that it would be a mistake to centralise the approach in schools even if the Government have a very important advisory role in communicating good practice.
Consultations on PSHE clearly support the crucial role of parents. Schools should have the flexibility to ensure that this sensitive subject is tackled in line with both the ethos of a particular school and the parental wishes, which need to be determined. The law as it stands provides for this and the challenge is to improve the operation of the current law rather than to try to force solutions by a change to it. There are widespread problems with parenting in our society but the answer is not to lessen parental responsibility and involvement but to renew our efforts to improve and educate people about the role of parents. The centralised nature of the curriculum provides scope for this in theory but in practice its implementation is very patchy. In some schools, governors and head teachers consult parents and let them know when the subject is to be taught so that parents can follow it up appropriately at home. However, it seems that best practice is often not followed and governors as well as parents can get frustrated as they are bypassed and as local authorities advocate perhaps controversial material for schools to use. Will the Minister comment on this and respond to three suggestions for any revision to the circular which was referred to earlier?
The first is the need for governors formally to consult parents on this matter and take that seriously before determining with school staff the curriculum for a school. The second is the need for local authorities to make clear that any advice which they offer is advice, that the governors have the responsibility for this issue, in dialogue with the best expert and professional advice, and that governors cannot shirk that responsibility. The third suggestion concerns the need to communicate regularly with parents in determining the curriculum and in letting them know how it is being delivered and when so that it can be followed up in the parental home. That, I believe, would at least make a start in the right direction.
Baroness Kidron
I thank the noble Baroness, Lady Massey, for bringing forward the debate eventually. I support many of the comments that noble Lords have made about skills and values. However, I would like to concentrate on sex education and pick up the question of pornography.
A few weeks ago, I sat in the bedroom of a 15 year-old boy. Together we looked at a website that, at a touch of a button, conjured up hundreds of pornographic films in 32 different categories which I will not embarrass noble Lords by mentioning. This young boy admits that his porn addiction is a barrier to having a relationship because real girls do not conform to the images he sees online. This 15 year-old bitterly regrets this situation. Imagine bitterly regretting such a thing at the age of 15 when he is not yet supposed to be having sex. As uncomfortable as it is for us to acknowledge this, his experience is becoming a new normal—it is not an unusual thing. Multiple studies, including a recent one from Boston University’s School of Public Health which reported on the rise of teen group sex, show that sexual activity among teens is increasingly reflective of commercial sexual fantasy, including its very damaging gender stereotyping. Nearly a third of all girls between 13 and 17 report having engaged in unwanted sexual acts demanded by a partner, which is a terrible blurring of the concept of consent that goes way into adulthood. Children and young adults need a less heightened environment in which to rehearse their route to being self-respecting and respectful sexual beings.
With only minimal changes to the proposed curriculum, the Government have the opportunity to ensure that primary science teaches about the changes brought on by puberty, provides a formal setting for the naming of genitalia and delivers a clear understanding of reproduction. As children get to key stage 3, experiences of adolescence, hormonal change, sexual health and disease contextualised in a science lesson would do much to give children confidence in the quality of the information they have about their bodies, while PSHE provides a broader and more discursive forum in which young people can learn about many of the complex issues they face in this area.
A recent report from the Department of Health, A Framework for Sexual Health Improvement in England, puts the emphasis for the under 16s on building knowledge and resilience and for those who are 16 plus on access to high quality services and information to provide knowledge of what sex is, resilience against the sexualised imagery that dictates inappropriate behaviours and confidence to resist the pressures that result in unwanted or abusive sexual activity. No young person should be isolated or ignorant on their journey to sexual maturity. It is disappointing that the Government have not yet made PSHE a statutory requirement, but they could undertake to make more explicit the relationship between the statutory requirement to provide for the mental and physical development of children and the provision of PSHE in our schools.
In my view, PSHE should provide not only sex education, it should include sophisticated learning about the internet itself. It should be learning that explores and emphasises its wonders, but does not duck any of the problems it produces, not least the unremitting backdrop of commercially driven sexual content. We have to be careful not to vilify parents. They are struggling to police their children on the net and many of the young people I speak to do not wish to discuss intimate bodily functions with their parents. I fear that if we do not grasp the opportunity to offer high status, high quality PSHE, the realpolitik is that we will leave the sex education of many young people to the pornographers.
Lord Parekh
My Lords, I, too, thank my noble friend Lady Massey of Darwen for securing this debate and introducing it so well. I want to bring a slightly different dimension to our debate and talk about the social and political context in which education needs to be seen and located. After all, we are asking what new skills and knowledge are needed in order that people can grow up in our society as sane human beings. Our society has changed profoundly over the past few decades and it is going to change even more. That will present the citizens of the future with new challenges. I want to look in particular at three of these new challenges which have not yet been noted in our debate.
First, there is the challenge caused by globalisation. We are an integral part of an interdependent world. The rest of the world is not beyond our boundaries; in fact, the expression “the rest of the world” does not make sense because it is already here in our midst, shaping us in a profound way. That is so not only in the form of immigrants, but also in the form of new cultures and new modes of ideas. The very idea of a border becomes in a sense problematical. Because we are constantly being exposed to new currents of thought and new ideas, there is inevitably a sense of panic. What is going to happen to us? There is a sense of disorientation and the loss of a sense of belonging. Our children, from a very young age, are faced with the problems of, “Who am I? Where do I belong? How do I retain a sense of continuity while at the same time coping with change?”. The first basic survival skill that they are going to need will be how to maintain a sense of identity that is not frozen. It must be able to cope with change, but at the same time it should not be like a set of clothes which can be discarded in favour of another set. We will have to teach them reflective skills from a young age.
The second profound change our society is undergoing is that we are increasingly multicultural. This is not only because of outsiders but because of choices that our own people are making, such as gay marriage, cohabitation and lots of other things. If we are going to live at peace with ourselves and others in this kind of society, we will require certain multicultural competences and sensibilities. We should learn to appreciate differences, feel at ease in their presence, and also develop an imaginative sympathy. Right from the age of two or three, children should be able to recognise that people can be of different colours and have different ways of life, and feel at ease with them and learn to cope with them. That skill is absolutely crucial as children grow up if we are going to maintain any degree of social cohesion and social harmony.
The third skill that I think is just as important has to do with something that one or two of your Lordships have already mentioned. There is a pervasive culture of indifference to others. We have seen severe cuts to people’s livelihoods brought about by the banking crisis, which I thought would have provoked an enormous sense of injustice and anger. It did not do anything of the kind. Bankers seem to be shameless; what are the rest of us doing? We who failed to mount sufficient pressure on the Government to bring about a regulatory regime are complicit in and partly responsible for the consequences of our deeds. Therefore, these cuts are not happening behind our backs; they are happening because of us.
It is this culture of indifference—“I have nothing to do with it, it is all the Government over there taking decisions”—that has to be countered. That involves a sense of compassion, concern for others and, going a little further, what some philosophers have called the ethical care of the self—a certain sense of pride in oneself, a sense of responsibility for oneself, so that one should be able say, with regard to health education, sex education, or whatever, “I am not that kind of person. I value myself too highly to become pregnant as a teenager or to engage in certain abominable practices”. If one had that kind of pride in oneself, which is more than self-respect and different from self-esteem, one would not dream of doing certain things. Can we instil that culture of care of the self in our children? If we do, we will have solved many of our problems without having recourse to technology or bureaucratic regulation.
Baroness Finlay of Llandaff
My Lords, I add my sincere thanks to the noble Baroness, Lady Massey, for having secured this debate, which is extremely important.
Our schools are now labouring against a much bigger problem than in the past. In the days when we went to school, figures relating to society were far better. Just to quote a few, the UK now has the highest rate of family breakdown in the western world and only just over half—55%—of 15 year-olds live with both their birth parents. That is a huge social change. Children are considerably more likely to have a television in the bedroom than a father living at home. We also know from good, sound research that 80% of variability in pupil achievement is attributable to so-called pupil factors, particularly family influence, so schools are struggling against a huge backdrop of problems that children may be bringing in with them, which are not the children’s fault.
I will touch briefly on emergency first aid, which has already been covered by the noble Lord, Lord Aberdare, and the noble Baroness, Lady Masham. I cannot but join wholeheartedly with their comments. If there was one thing that every child should learn, it would be the two hours of CPR. The children are very likely to be on the scene when the person concerned drops dead. Even though there is only a 15% chance of success, if unsuccessful, they can in their grief be consoled that they did everything they could.
I know of a woman, now in her 60s, who in her late teens found her father dead in the chair, and she has never recovered from the fact that she did not know what to do. She did not even know how to try. She just dived for a telephone and waited, and of course her father was dead. If only she had known to give him one thump on the chest, she might have felt better about the whole of her life. But it is not just about CPR. It is about coping with bleeding, choking, fractures—the real basics. Young people are the ones at risk of those; they are the ones at risk off falling of a horse, falling down a cliff face and so on.
As regards the life skills with which we are trying to equip children, they are about relationships. We are not dealing with only the nuts and bolts, if you like, of sex; we are dealing with the whole business of relating and coping with all the emotions that go on. Sadly, we have seen a rise in the number of girls reporting non-consensual sex from 28% in 2002 to 38% in 2008. Something is wrong and we cannot ignore it.
We also have to help children to cope with all those difficult emotions. EU Kids Online looked at children’s concerns on the internet and found that 22% are concerned about pornography and 18% about violent content. We know that between 1995-96 and 2005-06 there was a 66% increase in the hospitalisation of 12 to 14 year-olds from for self-harm. We have the data from the report on child well-being in rich countries and we do not do well. The United Kingdom does appallingly on teenage fertility rates. We rank badly for alcohol being drunk twice a week and children having used cannabis in the last 10 months. But we also do badly on children being involved in a physical fight and in being bullied at school at least once in the past couple of months. All of those are negative influence on children’s emotional development.
Unless we grasp the nettle, tackle this, make it part of our statutory provision and value the need to teach children all the aspects of thinking and relationships, we will continue to fail, as we seem to be doing now. I ask the Minister: where is the Government’s teenage strategy? What is happening to that group who appear to be invisible in policy?
Lord Touhig
My Lords, I join colleagues in thanking my noble friend Lady Massey of Darwen for securing this debate, and it comes on the eve of the Children and Families Bill coming to this House. I would like to concentrate my remarks on PSHE and its impact on youngsters with special educational needs.
Last year, I sat on a commission set up by the All-Party Parliamentary Group on Autism. We looked at reform of the special educational needs system and we produced a report, The Right Start: Reforming the System for Children with Autism. In a survey which figured in our final report, we found that 84% of respondents said that teachers were not given enough training effectively to teach and support children with autism. Training for teachers is obviously an essential step in ensuring that all staff gain an understanding of the condition which they can then pass on to their students.
One in every 100 children in school is autistic, and most are in mainstream schools. For many of these children, school can be a difficult place. Their condition makes communicating with other students difficult, and many will experience sensory overload. The Children and Families Bill, which is currently in Committee in the other place, gives us an important opportunity to transform the special educational needs system so that more children with autism and SEN will have access to the special support that they need.
We must also think about children’s experience of school life more widely and how we can improve understanding of special educational needs pupils. That is why personal, social and health education lessons are an opportunity to improve, among other things, communication between all students, both those with special educational needs and their peers. Such lessons should help young people to develop a rounded and tolerant understanding of the community in which they live. This must include awareness and understanding of disability, including conditions like autism which can often be hidden. Children with autism, especially those with high-functioning autism or Asperger’s syndrome, can find that their disability and the challenges resulting from it are not obvious to their peers or teachers. Therefore, the classroom presents an important opportunity to help tackle this lack of awareness and misunderstanding. The National Autistic Society—I declare an interest as vice-president—recently conducted a survey which revealed that 22% of young people with autism said that they have no friends at all. A shocking 63% of young people with autism said that they had been bullied. What parent would not be greatly concerned if they found that their children left home for school and spent their school day isolated, alone and friendless? If children have special educational needs, they are singled out for abuse and intimidation by their fellow students simply because they are different—bullying and abuse caused by ignorance, intolerance and, sometimes, spite. We know that some schools have excellent strategies to tackle bullying and we need to encourage that good practice. However, it is important that teachers have a full understanding as well as training to cope.
Transforming opportunities starts at schools; it is about improving special educational needs and changing attitudes among teachers and students alike. Promoting personal, social and health skills in schools should be involved in that and should be about educating young people for the real world. It should be an enriching experience and one that should shape our youngsters for the future in which they will live.
Lord Northbourne
My Lords, this afternoon I want to focus on personal and social education. We have heard a fair bit about some other aspects of PSHE but I want to concentrate on those two. Personal and social education matters for many reasons but for three in particular. The first is employment, the second is family and the third is social mobility.
The ability to get on with people, to manage one’s emotions and to understand social relationships is incredibly important in almost every walk of employment: in retail, in hospitality services, in healthcare, in politics and, indeed, in nearly all jobs that involve teamwork and leadership skills. Personal and interpersonal skills, and the emotional understanding of parents, are perhaps the key to establishing a stable, happy and secure family and to rearing happy and successful children. Then there is social mobility. Everybody is crying out for social mobility but they do not seem to be prepared to make the necessary moves towards it. Personal and social skills are absolutely fundamental to social mobility in our society.
Each child learns interpersonal skills in the family, in primary school and, I hope, in secondary school. Families today vary widely in their ability to give their children the social and emotional skills which they are going to need. A high proportion of primary schools have a satisfactory Ofsted score, but a satisfactory score only means, “Just good enough and should do better”. However, the majority of secondary schools in this country today give personal and social education a very low priority indeed. In more than 90% of secondary schools, PSHE, if it is offered at all, is delivered by a teacher with no specialist training in the subject. Those early years in secondary school are precisely the time when young people are growing up and need well trained teachers helping them to explore the personal and social challenges which lie ahead of them in the adult world. That needs skilled teachers. Interpersonal skills are not learnt overnight nor are they necessarily learnt in the classroom. I believe that such learning should be achieved using interactive programmes involving guided discussion in class based on young people’s interests and linked to programmes of extracurricular activities designed to develop social and interpersonal skills and character capabilities.
Of course some of the best schools are already doing this—but why are all schools not doing it? I think there are three answers. One is money, the second is time and the third is lack of qualified staff. It is in that context that I ask the Minister for two commitments. The first is to accept in principle the importance of taking advantage of that window of opportunity which exists during a child’s early years in secondary school, to build up the self confidence, the personal and social skills, and the character capabilities they will need later in adult life. Secondly, with such a programme in mind, as a matter of urgency I would like the Government to make a commitment to fund one or two of the major teacher training universities to develop a training module for specialist teachers to ensure that all younger people in secondary schools get the support and guidance that they need during the early years of their secondary school life. They can then develop at an age when they are very keen to know what adult life will be like and they will have the skills that they need for the challenges they are likely to meet in their adult life.
Baroness Hughes of Stretford
My Lords, I too, congratulate my noble friend Lady Massey. She has been a tireless champion of the importance of PSHE and has given us the opportunity to keep this issue live by debating it again today. Indeed, we have had a very rich debate.
I apologise in advance that in the short time I have, I will not be able to acknowledge the excellent individual contributions that we have had from noble Lords across the Committee today. I shall structure my remarks around three points: first, the arguments in favour of strong PSHE, including sex-and-relationship education, delivered through schools; secondly, the question of whether that objective can be achieved without statutory underpinning; and, thirdly, to ask the Government what are their next steps, given their response to the results of the recent consultation on PSHE.
On the arguments in favour of strong PSHE, we have heard in the many excellent speeches today the reasons for promoting the health, well-being, personal safety, confidence and self-esteem among young people. I will not rehearse those powerful contributions; I could not improve on them, and agree with all of them. Not only in this House but in the other place there is a strong cross-party consensus for high quality PSHE and SRE in schools, promoted not least recently by the international campaign to tackle violence and abuse towards women and girls. The particular point in that recent debate was made strongly that boys as well as girls need good sex-and-relationship education, as the noble Baroness, Lady Kidron, rightly warned us today.
There are many other reasons to support strong PSHE in schools—not only problems, such as the soaring rise in sexually transmitted diseases among young people, but in the inculcation of positive values, resilience, good citizenship, and so on. Not least, there is evidence from young people themselves in surveys conducted by the Youth Parliament showing strong support for this subject in schools. Parents, too, in many surveys, including on Mumsnet, overwhelmingly said that they want this provided for their children in schools. Teachers, too, and even the Government have conceded, in Elizabeth Truss’s Written Statement on the results of the PSHE consultation that,
“all schools should teach PSHE, drawing on good practice”.—[Official Report, Commons, 21/3/13; col. 52WS.]
There is no argument about the importance of good PSHE and sex and relationship education in schools.
My second point refers to the crucial question: whether the objective that we all share can be achieved without statutory underpinning. First, as we have heard, we know that the teaching of PSHE is at best patchy. The Ofsted report in 2010 suggested that provision was at least good in three-quarters of schools, but the survey did not include any school in special measures or under notice to improve, so that figure is likely to be a gross overestimate. Even so, it means that at the very least a quarter of schools are not providing good PSHE. Secondly, from our experience in government we know that left to their own devices, we do not see the improvement that we want from schools. In government we got consensus for statutory sex-and-relationship education as a first step to statutory PSHE, but unfortunately that fell away in the wash. Finally, the respondents to the consultation showed that 78% supported statutory PSHE or at least SRE, recognising that the necessary consistency and quality in these subjects will not come from schools left to their own devices.
In conclusion, given the Government’s position, despite that result on the survey they will not make this subject statutory, at the very least will the Minister first pull back from watering down the compulsory sex-and-relationship education as outlined in the national curriculum consultation and instead strengthen the factual content and build in a strong relationship component? Secondly, will he take up the suggestion of the National Children’s Bureau and others to make an explicit link between PSHE and the national curriculum when they publish the national curriculum document?
The Parliamentary Under-Secretary of State for Schools (Lord Nash)
My Lords, I thank all those who have taken part in the debate, and particularly the noble Baroness, Lady Massey, for raising this important issue. I know of her long-standing personal commitment to ensure that children not only receive an excellent academic education, but learn the soft skills so that they can be “rounded and grounded”. I find myself in agreement with most of what has been said today. I agree with the noble Baroness that PSHE is not just a single subject, but a concept that should be part of the life blood of all schools, and that every school should have a clear PSHE ethos and programme. I want to assure noble Lords that I will use every opportunity to exhort all schools to do this and we will consider carefully what noble Lords have said today.
However, we believe that teachers need the flexibility to decide what to teach and how to teach it in ways that are appropriate. I will agree to meet the noble Baroness, interested Peers and other parties to discuss this important issue because there is no question that high quality PSHE education is vital to equip children and young people with the knowledge and skills they need. That is why we have outlined in the introduction to the new national curriculum our expectation that schools should teach PSHE by drawing on good practice. All young people should benefit from high quality PSHE education, including sex-and-relationship education. It is the Government’s aim to empower schools to deliver this as part of what my noble friend Lady Perry called a “broad and balanced” curriculum.
It is important to distinguish here between the national curriculum and the wider school curriculum. Over time, the national curriculum has extended to cover more subjects, prescribing more outcomes, and taking up more school time. The Government launched their review of the national curriculum to achieve two goals: first, to set out the core knowledge that pupils should have that is on a par with other high performing countries; and, secondly, to slim it down by reducing prescription, thus allowing teachers more flexibility and freedom to exercise their professional judgment. We know that international evidence shows that the best school systems in the world devolve more autonomy to the professionals working on the ground. Our overall reduction in prescription will give teachers greater flexibility in the way they teach, allowing them better to tailor their curriculum and to engage students in the classroom.
The sponsored academies programme, which has been built on the excellent work done by the previous Government, is about sponsors taking over the running of poorly performing schools that are often in deprived areas. Many of the areas will, as the noble Baroness, Lady Finlay, touched on, have a high incidence of poor parenting, teenage pregnancy, absent fathers, drug and alcohol abuse and gang issues. As the noble Baroness, Lady Massey, said, it is a complex world. Running programmes that empower pupils to combat these issues is second nature to the sponsors and to many other schools in such areas. We want to build on this good practice to enable and exhort all schools to follow what good schools do in a way that is appropriate to them. We feel that the danger with a box-ticking approach is that schools will revert to the minimum provision, whereas our ambition, while recognising that we are a long way short of it at the moment, is that all schools should provide far more than that. For many children in situations where family life has collapsed and religion plays no part in their lives, their school represents the only solid brick they have.
I recently had occasion to investigate the gang activity in one particular area of London. What I discovered was, frankly, frightening and deeply disturbing. One of the important things that any school in an area such as this should do is provide strategies for preventing their students being recruited into gangs, which is happening at an increasingly young age. However, a school in a leafy suburb probably has other issues to worry about. It is horses for courses, and we want our schools to be free to adapt their provision accordingly. However, our approach is that we should not legislate for PSHE, particularly when the needs of individual pupils vary so widely. We trust teachers and head teachers to provide the PSHE that is relevant and necessary in their own school, but we plan to set high expectations.
However, many elements of PSHE have a statutory basis elsewhere in the national curriculum. For example, science covers the biological aspects of reproduction and the life cycle at key stages 2 and 3. Science also covers issues of health and drugs, ensuring pupils are taught about such topics as the impact of diet, exercise, drugs and lifestyle on the way their body functions, and the effects of drugs on behaviour, health and life processes. In PE, pupils are taught to become,
“physically confident in a way which supports their health and fitness”.
Several noble Lords, including the noble Baroness, Lady Kidron, and the right reverend Prelate the Bishop of Chester, spoke most convincingly of the necessity of good sex-and-relationship education, which is one of the most important aspects of PSHE and is compulsory in maintained secondary schools. All schools must have an up-to-date policy in this regard. One of the cornerstones of this education is parental involvement and consultation. The guidance covers a broad range of topics and stresses the need for pupils to be taught to develop a strong moral framework to guide their decisions, judgments and behaviour.
The very important issue of violence against women was highlighted internationally in February by the powerful One Billion Rising campaign. Young people need to be aware of these important issues and our guidance provides a strong framework for this to happen and how to avoid exploitation and abuse. This includes the teaching of consent. We have provided the PSHE Association with grant funding to promote the teaching of consent and help schools to develop their curricula. We have also commissioned the Bailey review.
I thank the noble Baroness, Lady Hughes, and the noble Lord, Lord Northbourne, for their comments on raising the quality of PSHE teaching in schools. I agree that this is important. In addition to a demanding curriculum, good-quality teaching is fundamental. There is overwhelming evidence that links teacher quality to pupils’ attainment. The Government’s reform of ITT demonstrates our commitment to recruiting the very best graduates into teaching and to giving teaching schools more of a role so that schools close to the needs of particular types of pupils can develop appropriate training.
The PSHE Association provides a wealth of resources for teachers and has launched its chartered teacher programme. This gives PSHE teachers the opportunity to evidence their professional practice. We have asked Ofsted to report on specific effective practice in PSHE teaching. It has agreed to do so and is considering the best way in which this might be accomplished and could include, for example, a national conference.
I agree with my noble friend Lord Eden about the danger of the internet. The Child Exploitation and Online Protection Centre has developed a specific educational resource that teachers can use to ensure that their pupils have the knowledge and skills they need to stay safe when using the internet.
The right reverend Prelate the Bishop of Ripon and Leeds talked about emotional development. Emotional skills can be developed through all aspects of the curriculum. Key emotional and moral issues such as respect and tolerance should be part of all teaching, and practised and modelled by teachers themselves. At my school, all teachers and pupils have a clear vision of the characteristics that we want our pupils to develop, such as compassion and resilience.
As to the relationship between religious education and PSHE, schools are free to design their PSHE programmes to complement other aspects of the school curriculum and a school’s ethos as a whole. I agree that religious education and PSHE together can contribute to a strong-values ethos.
The noble Baronesses, Lady Masham and Lady Massey, commented on health education. One of the key aims of any PSHE programme is to ensure that pupils receive the information they need to stay healthy and safe. I would expect a basic understanding of the rudiments of health to be a strong part of this. Again at my own school, we have a substantial information service on health issues and problems. This service is accessible by all pupils via the school intranet.
The noble Lord, Lord Aberdare, and the noble Baroness, Lady Finlay, spoke about the importance of teaching first aid skills. PSHE provides opportunities for schools to teach first aid if they wish, and engage with such organisations as the British Red Cross and St John Ambulance. My honourable friend Elizabeth Truss met the British Heart Foundation and the Resuscitation Council on Monday this week. She listened with interest to their concerns and will consider them carefully as part of the national curriculum review.
I agree with the right reverend Prelate the Bishop of Chester that decisions about SRE should be taken by parents. Governing bodies of all maintained schools are required to have an SRE policy. I agree wholeheartedly with the noble Lord, Lord Northbourne, about the importance of building pupils’ confidence and social skills.
I thank the noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Chester for their comments on school governance, particularly in relation to education. We are simplifying the guidance on governance, particularly in relation to statutory provision of sex education. We believe that this will be much clearer. As regards the number of chartered teachers, this has been a rigorous programme but we anticipate the numbers to rise significantly next year.
I agree with the noble Lord, Lord Parekh, that global understanding and multicultural literacy are important skills for pupils in today’s society—so important that I suggest that such provision should not be limited to PSHE lessons but be part of the whole school ethos, embedded throughout the curriculum in all teaching.
The Government believe that PSHE is a vital part of a broad and balanced curriculum and that excellent PSHE provision is part of the life-blood of all good schools. I thank all noble Lords for their contributions to this important debate.
Tourism
Lord Lee of Trafford
To ask Her Majesty’s Government what plans they have to maximise tourism potential in the United Kingdom.
Lord Lee of Trafford
My Lords, I am delighted to lead today’s debate on maximising tourism’s potential. I think I am right in saying that it is just over two years since we had a debate on tourism in the House of Lords. It is a particular pleasure for me to see that the debate will be replied to by my noble friend Lord Gardiner of Kimble. I know from private discussions I have had with him just how committed he is to the tourism industry. We wish him well in climbing the greasy pole so that he is able to influence policy to an even greater extent in the future. I also welcome so many colleagues who have a particular interest in tourism.
First, I declare an interest as the chairman of the Association of Leading Visitor Attractions. The association comprises 50 members, all of whom attract more than 1 million visitors a year, and we now have seven members in Scotland. Globally, tourism is probably the world’s largest growth industry, with a huge potential. At present, something like 20% of the residents of the United States, 34% of French residents and 13% of Japanese residents take holidays abroad. In China the comparative figure is only 4.3%, while in Brazil it is 2.7%, and India 1.2%. One can see the huge potential that is to come. In the United Kingdom, tourism is our sixth-largest industry, with a turnover of £134 billion, providing 2.7 million jobs, which represents 9.1% of the workforce. Over a third of all the new jobs created in the past year—180,000—were actually created in tourism. The beauty of the tourism industry in terms of employment is that it is capable of taking in both unskilled and very highly skilled workers.
However, against this international and national backdrop, successive Governments and politicians have repeatedly failed to take tourism seriously. I believe that it is the number one industry in more parliamentary constituencies than any other individual industry. Yet, in the 2010 election, not one word was said about tourism in any of the three major parties’ manifestos. We have the occasional speech supporting tourism by the Prime Minister of the day, and there it ends, with little follow-through. Until the Prime Minister and the Chancellor of the Exchequer really get the message on tourism and drive policy forward as a priority, little is likely to change. We also need much greater co-ordination across government. Too many messages and actions are negative and there are too many restrictive barriers.
Specifically, tourism is not mentioned in the title of the Department for Culture, Media and Sport. Funding for VisitBritain and VisitEngland has been steadily reduced, and there is a threat to reduce it even further. Today, I gather that in a speech made at the British Museum, the Secretary of State queried the economic benefits of the arts. The chairmanship of VisitBritain is seen as a job that takes six days a month. That is quite ridiculous, given the size and scale of our industry. On value added tax, out of 27 EU countries, the United Kingdom is one of only four—and the only major tourism destination—to charge full-rate VAT on accommodation. Independent studies have shown that reducing VAT to 5% would create 80,000 new jobs and generate an additional £2.6 billion for the Treasury.
Ireland has successfully boosted its tourism industry by reducing VAT and abolishing air passenger duty. We had a separate debate on this a few weeks ago. Since 2007, air passenger duty has been increased by 360%, which means that for a Chinese family of four wanting to visit the United Kingdom, the duty would be something like £368. On visas, although there has been a modest improvement, the procedures are still expensive and burdensome, particularly for Chinese visitors. It is hardly surprising that France has been attracting something like six times as many visitors as we have. Moreover, there were the recent comments by the Home Secretary on possible changes with regard to visas for Brazil, which have not been seen to be helpful. I believe that we will have an Oral Question in the House on this matter tomorrow. With regard to airports, despite the urgent need for new runway capacity in the south-east, the Davies commission’s report has been long-grassed until after the next election. The package travel directive puts onerous requirements on small businesses and needs to be substantially amended.
Despite overwhelming arguments that a move to double summer time, allowing greater daylight activity, would significantly boost tourism and, of course, road safety, no Government seem to have the will to take action. Regionally, the demise of the RDAs has seriously reduced funding for destination management organisations, for tourism skills training and, of course, for catalyst pump-priming support for major tourism initiatives and projects. The allocation from the regional growth fund falls well short of being an adequate replacement.
I ask my party, and others advocating a mansion tax, whether they have really thought through the implications. The owners of historical properties, many of whom are already under severe cash pressure regarding repairs and renewals, could be faced with very severe additional annual burdens; for example, with a £5 million historic property, 1% on the value over £2 million would result in a £30,000 a year extra charge. Where is that cash going to come from?
Our visitor economy in the United Kingdom is made up of a cornucopia of riches: our historical heritage, our industrial heritage, our great museums and galleries with their crowd-drawing exhibitions, our beautiful and varied countryside, our resorts, and our creative industries such as our theatres and our music. We also have a worldwide reputation for staging great ceremonial events such as the Olympics and the Diamond Jubilee last year, the royal wedding and, more recently, the funeral of Lady Thatcher. All these have given a massive boost to London. Specifically, the royal wedding at Westminster Abbey increased visitor numbers there sixfold. It is still benefiting from that exposure, and I would expect St Paul’s also to have a considerable boost to its visitor figures. Yes, we have a successful tourism industry, but we could do so much better.
Baroness Bottomley of Nettlestone
I congratulate the noble Lord on securing this debate, and endorse many of his points. I know the work he did as Minister for Tourism.
I had two specific aims when I was Secretary of State, the first being that I should sign all the letters concerning tourism, which is normally left to a junior Minister. If the Secretary of State signs the letter in interministerial correspondence, all the other Secretaries of State have to sign the letter. I thought that was a wonderful “Yes Minister” device to force Cabinet-level Ministers to understand the importance of tourism and hospitality and to not let them delegate it to a junior Minister. Secondly, my small and simple target was to speak at the CBI conference on the importance of tourism, hospitality and leisure, because it is a genuine sunrise industry and a great job creator. I decided that being on the CBI agenda would get tourism and hospitality where they needed to be. I am delighted to say that I secured that small target as well.
My small specific target today—I declare my interest as chancellor of the University of Hull and as the about to be appointed sheriff for the City of Kingston upon Hull—is to secure for that wonderful, creative and vibrant city the award of City of Culture 2017.
I warmly congratulate the Secretary of State on her speech today, which I think the noble Lord did not entirely understand. She spoke about understanding the economic potential which the arts and culture offer, both directly and indirectly. They are not an add-on, they are fundamental to our success as a nation. Culture does not simply have a role to play in bringing about a return to growth, it should be central to these efforts. Culture, as part of tourism and hospitality, is evidently critical. I was delighted she made the speech at the British Museum, which was founded by a lottery and jeered at by someone from my former constituency in Farnham, William Cobbett, who asked, “What manner of interest is that to the common man?”. All these centuries later, we see that the BM has survived extremely well.
Hull has always been a hugely creative city. It is the birthplace of Andrew Marvell and William Wilberforce. More recently, Andrew Motion and Philip Larkin taught at the university. Roger McGough, Anthony Minghella and Jenni Murray were all at the university. Tom Courtenay and Maureen Lipman were brought up there. There are wonderful local centres such as the Hull Truck Theatre; the dynamic, creative and modern Ferens Art Gallery; The Deep, which, I am pleased to say, was lottery-funded during my time on the Millennium Commission, and is a wonderful environmental and conservation charity; the Guildhall; and Trinity House, which houses the largest and most splendid silver collection across Europe.
All in all, it is a vibrant city that faces on to the rest of the world. It has always welcomed people from around the world, and harnessed its creativity and excellence as a spur to tourism. I only hope it becomes, like Liverpool and Londonderry, the next City of Culture in 2017.
Baroness Liddell of Coatdyke
My Lords, I, too, congratulate the noble Lord, Lord Lee, on securing this debate. We all know of his considerable expertise in tourism and he never misses an opportunity to raise the issue. I am delighted to support him and I agreed with almost everything he said; I will reserve my judgement on double summer time, given where I come from.
I also welcome the noble Lord, Lord Gardiner, because of his background in rural affairs. The key thing to remember about tourism is that it is the economic instrument that can reach parts of the country that other instruments do not. That is where my interest in tourism comes from; it is the regeneration of remote communities. I declare an interest as a non-executive director of VisitBritain.
I, too, have been listening to what the Secretary of State had to say today about the economic impact of the arts. She said one thing that almost had me cheering: she wants “participants not bystanders”. If ever there was a compliment to tourism, it is that. I do not make any partisan point in this because, frankly, I am as critical of the Government that I was a member of as I am of this and previous Governments for their failure to put tourism at the heart of the economic debate.
British tourism has been a partner in economic development, and £24 million of partnership funding from VisitBritain has gone to the commercial sector. As a result of the activities of VisitBritain over a four-year period, £100 million has gone into a marketing programme and that has directly contributed £900 million to the UK tourism industry. That is a stunning return on investment.
If we look at the impact of tourism on jobs and growth in the economy, it contributes £115 billion to the UK’s GDP and employs 2.6 million people. Internationally, tourism employment outstrips car and chemical manufacturing in terms of the number of people employed. It is seen in other countries as a major instrument of growth, but we consign it to the cuddly fringes of government. This is an industry that can bring serious economic growth; 9% of the UK economy comes from tourism. One job in every three created between 2009 and 2011 was in tourism. Another key figure is that 44% of those employed in tourism are under the age of 30.
We all want economic growth in this country; we want it outside the south-east of England; we want it in Cornwall, Devon, the north of Scotland, the Welsh valleys and everywhere else. Tourism can bring that, but it will never have the full impact that it could have if it is consigned to the outer edges of government policy. We laud UKTI in our economic debates; we should be lauding VisitBritain, British tourism and the many hundreds of thousands of people who make it one of our great success stories.
Baroness Valentine
I could not agree more. First, I declare that I am chief executive of London First, a not-for-profit business membership organisation. I, too, am grateful to the noble Lord, Lord Lee, for calling this debate. If I may, I would like to turn his Motion on its head and suggest some things that the Government could stop doing. I will focus on three disincentives for tourists: first, barriers to entry; secondly, the quality of the welcome; and thirdly, the cost of departure.
Taking entry first, the World Economic Forum’s latest competitiveness rankings show that the UK has fallen from 22nd to 46th in terms of its visa requirements. China’s burgeoning middle class spends around three times as much as other tourists. However, the requirement to apply for two European visas—one for the 26 Schengen countries and one for Britain—is a turn-off. Four out of five do not come to the UK, representing an opportunity cost of more than £1 billion annually. The Government are working hard to improve the process, including investigating partnering with other European countries to provide a one-stop shop for visas, whereby, even though the screening processes are different, documents and information can be provided just once. Whatever the solution, we need to be an integral part of any European tour rather than an optional add-on.
Turning to the welcome that tourists receive, in the past we have seen long queues clogging up border control. Here, too, I have been encouraged by progress at the UK Border Force. The UKBF should be given the necessary resource, including the ability to get more and better data quickly, combined with a flexible operating culture to hit tough queue targets, at the same time as keeping out undesirables.
Finally, on tax, in the rankings to which I referred earlier, the UK comes last for airport charges, largely due to air passenger duty. If our goal is to attract visitors, it seems strange to charge them so heavily for leaving.
I return to the official topic of this debate. There are things that the Government can do or continue to do. The GREAT campaign was a good first step, but we must regard marketing the UK as a positive investment rather than an unwelcome expense. Are we really spending enough to maximise the Olympic legacy? Tourism is not a “nice to have”. It is the UK’s third largest export earner. More than that, tourist activity is often the first step to future economic activity. Today’s visitors bearing cameras may well be tomorrow’s investors, and we should therefore do all we can to ensure that they go home with plenty of pictures of red carpets.
The Earl of Arran
My Lords, I declare an interest, in that the garden at our home in north Devon is open to the public for most of the year.
As we all know, tourism is one of the fastest growing industries in the world. At the beginning of the year, the Prime Minister launched a major initiative through the VisitBritain partnership: a new four-year £100 million marketing budget to deliver 4 million new visitors, generate an extra £2 billion in visitor spending and create 50,000 vitally needed jobs. It is a start. The south-west smiled; at last there was some recognition of the need to invest in one of its most important wealth-generating sectors—70,000 jobs in Devon and Somerset and more than 25% of Cornwall’s total GDP.
South-west tourism has moved a very long way from the traditional bucket-and-spade image of the 1970s and 1980s. On a wet day, to match a genuine world-class environment, many of the covered attractions are also world class, including the Eden Project, the National Marine Aquarium and dedicated local family businesses such as those in my area of north Devon. These include the Milky Way and the BIG Sheep, both of which were created through diversification from long-standing traditional livestock farms.
Far from relying upon tourists arriving between Easter and the beginning of September, the south-west has been moving towards an all-year season. This has been based upon widening the scope of the offering, coupled with investment in quality and skills. Marketing has been adapted to cater for “just in time” bookings, and branding has been based on traditional values such as loyalty. Repeat visitors are easier to attract than new.
Examples of how this strategy has worked can be seen in two sectors. The first is food and drink. The vital link between tourism and locally sourced, safe products has proved a dynamic area for growth. The south-west is now every foodie’s dream, with the UK’s most innovative cuisine, which is locally sourced, ethically produced and, importantly, prepared by fantastic home-grown talent. A clutch of Michelin-starred chefs have recognised this powerful market, with Jamie Oliver, Gary Rhodes, Rick Stein, Michael Caines, Hugh Fearnley-Whittingstall and many others enjoying successful recent openings.
Perhaps the most exciting story, however, is in the growth of speciality tourism. There is no better example of this than what can now be seen in the great spring gardens throughout our region. These already attract more than 30% of all our visitors and this figure is not only rising but can ensure repeat visits both during the year, and year after year. There are in Devon and Cornwall some of the greatest spring gardens in the world. I say “in the world” for their only rivals are in the Himalayas. But we need not go that far; it is a very long way and expensive to get there. Go instead to Devon, to the Royal Horticultural Society garden at Rosemoor. Go to, besides many others, Caerhays on the southern Cornish coast, where there abound acre upon acre of camellias, rhododendrons and magnolias 70ft high. Its splendour, magnificence and the beautiful setting, once seen, are never forgotten. See Naples and die, but perhaps also see Caerhays and die. All these points underpin the fact that it will take more than the recession or bad weather to dampen the spirit of south-west tourism.
Lord Faulkner of Worcester
My Lords, I join others in congratulating the noble Lord, Lord Lee of Trafford, on initiating this debate, and I remind the Committee of my unpaid interests as president of the Heritage Railway Association and as a trustee of the Science Museum Group. Britain’s tourist potential depends on many factors, but principally on attractive destinations, such as those in the south-west that we have just heard about, enjoyable experiences in terms of where to stay and what to do, and ease of access. With more time, I would describe the huge contribution that our museums—the five museums in the Science Museum Group now attract 5 million visitors a year—make to tourism, but I shall concentrate on the part that Britain’s heritage railways play in attracting visitors to Britain.
Railways were Britain’s contribution to the development of the modern world. Their history is rooted in the work of British engineers and entrepreneurs who financed and built railways in so many countries whose citizens are now visiting Britain as tourists. We were not only good at building and exporting railways but we are, today, very good at running heritage railways. There are well over 100 around the United Kingdom, and they are increasingly popular. They do their best to offer an attractive face to their customers and an enjoyable travelling experience. Many provide excellent dining cars on the trains, often offering local produce as a feature. There are even a few boutique hotels around the country where the guests sleep in historic railway carriages, even though the carriages never leave the sidings on which they are permanently stabled.
Heritage railways are still growing. Painstakingly, mile by mile and mainly using volunteer labour, lines are being extended over track beds abandoned long ago by British Railways. Last month, trains on the pioneer standard gauge preserved railway, the Bluebell line, triumphantly steamed back into East Grinstead station some 55 years after the previous train had approached the station from the south for the last time.
Lord Faulkner of Worcester
My Lords, I was just describing to the Committee how heritage railways are being restored in various parts of the country. I mentioned the Bluebell line and pointed out that the North Yorkshire Moors Railway is now bringing thousands of people into the town of Whitby, with the effect of keeping cars out of the North York Moors National Park and providing a new journey experience for people. Plans are also in hand with grant funding to extend the Swanage Railway to connect with the South West Main Line to London at Wareham. Increasingly, heritage railways are being used by tourists for access as well as for an enjoyable day out. These developments are the subject of an inquiry being held by the All-Party Parliamentary Group on Heritage Rail, of which I am vice-chairman, into the social and economic value of heritage railways. I look forward to sending the Minister the group’s report later this year, which will give an indication of how important heritage railways are to the tourist economy.
In conclusion, I would just remind the Minister that these railways are run largely by volunteers and operate commercially, without recourse to government for subsidy. They work with the local community and are themselves major tourist attractions. They ask for little more than to be able to continue to invest and develop, and make the plea of most small and medium-sized enterprises, to be relieved of as much of their administrative and regulatory burden as possible. A little moral encouragement and support would be welcome too, to demonstrate how much this huge voluntary effort is appreciated by those responsible for tourism development.
Lord Roberts of Llandudno
My Lords, at a meeting last week, I was introduced as one of Llandudno’s two “Peers” or “piers”. Either I am all at sea or out to sea, but it is good to be the only speaker here, I think, from an area that has a pier—a seaside resort. I will also say how proud I am to bear the name of this seaside resort, as Roberts of Llandudno.
Certain things have happened, especially in the past few months. The Lauriston Court Hotel on Llandudno’s promenade has been named by thousands of guest reviews on the TripAdvisor site to offer the best service in the world. You have to go to the Galaxy hotels if you wish to contest that standing. The Lauriston Court is rated the sixth-best bargain hotel. I am therefore delighted to have that confirmation of our status, and Llandudno is a wonderful seaside resort. Many other hotels and guesthouses can be recommended highly, and they are attractive both inside and out, but not all of them are. Some things could be so easily remedied. I was in Marble Arch recently and saw the state of the flags flown there. It is better to have no flag at all than one that is dirty and flea-bitten. It reduces the appeal not only of the building but of the country which the flag represents. Please provide a good outward appearance.
Finally, we have an opportunity at a time of youth unemployment through which we could somehow support more jobs for young people. They could gain qualifications, not second-class qualifications, but ones that would give them hope for a career that would be well worth while. This is an opportunity at a time when we have young people eager to take these sorts of jobs.
Lord Bilimoria
My Lords, Britain is a tourism paradise, in spite of our weather. As we have heard, tourism contributes more than £115 billion to the economy, represents 9% of our economy, and supports nearly 3 million jobs. I thank the noble Lord, Lord Lee, for proposing this debate and for making the important point that we do not take tourism seriously enough. It does not get the credit that it is due or the priority that it deserves. We have dropped from sixth to 11th place in the latest WEF travel and tourism report in terms of tourism competitiveness. We are the sixth most visited destination in the world, but we are losing market share.
Yet we have everything. As we have heard from the noble Lord, Lord Lee, we have the Royal Family, museums, music, theatre, London, the countryside, the arts and sport—you name it. However, the Eiffel Tower in Paris is the most photographed building in the world, while the second most photographed is right here—the Houses of Parliament. Why is that? I agree that we need to do something about infrastructure. Can the Minister say when we are going to do something about our airports, perhaps by providing a third runway at Heathrow and probably the estuary airport as well? It is not a question of either/or; we desperately need both.
However, the main reason that Paris gets more visitors than London is visas, as every survey states. The main reason for that is that Europe has the European Union’s Schengen visa and we do not belong to Schengen. Why is that? It is because we want to maintain our own border controls. Is that not a joke? We are incapable of maintaining our border controls. We do not even know how many illegal immigrants there are. The UK Border Agency has just been disbanded because it was not fit for purpose. We still do not have exit checks for people leaving this country. Can the Minister say when we are going to institute exit checks to keep control of our borders? With Schengen, one visa covers 25 countries, while here there is one visa for only the UK and Ireland. The single visa for 25 countries covers 85% of Europe’s population and GDP. We are worried about security and asylum seekers, but illegal immigrants do not hold Schengen visas. They do not have any visas. The Centre for European Policy Studies has written an excellent report on the issue.
We are losing out in this area. Figures on the number of UK visas issued over the past five years have remained stagnant at 2 million, while Schengen visas over the five-year period to 2010 have increased from 8 million to 12 million, an increase of 50%. I do not understand this. The cost of a Schengen visa for 25 countries is cheaper than the price of one of our short-term visas for the UK and Ireland. We are part of the Schengen co-operation on matters of criminality, so why do we not bite the bullet and join the Schengen scheme before it is too late? The iron structure in Paris will then not be the number one most photographed structure in the world; this building will be.
Lord Gordon of Strathblane
My Lords, I join noble Lords in congratulating the noble Lord, Lord Lee, on securing this debate, and I endorse the broad theme that we all feel that tourism should be given a higher priority. Let us take as read the figures which have been given; I want simply to add a gloss or two. First of all, on priority, let us take the example given by the noble Baroness, Lady Bottomley, when she was Secretary of State. It would be useful if every Bill being brought forward by any Government passed a “tourism test” before it could be agreed. Every Government should look at the effect on tourism, our most important industry, before they implement anything, whether that be visa controls or whatever.
The next point I would like to make is about jobs. People tend to forget that jobs in tourism are increasingly becoming high-quality jobs. Chefs are becoming celebrities, while further down the food chain, if that is not too horrible a pun, people in the tourism industry are at least learning to behave well towards others, which surely is a very beneficial outcome. They are also jobs which cannot be replaced abroad or digitised or computerised out of existence. The service industries will always require human beings, so these are jobs for the long term.
Another benefit of tourism which I think is underrated is the benefit to the indigenous population. Let me take a rather extreme example. When I was chairman of the Scottish Tourist Board, I chaired a conference under the auspices of UNESCO in Scotland called “Peace Through Tourism”. One of the speakers was the then David Trimble, who claimed—I am sure that he was exaggerating—that Northern Ireland and Scotland were broadly similar. However, let us give him the benefit of the doubt. He went on to say that the income per capita from tourism in Northern Ireland was one quarter of that of Scotland, and that Northern Ireland’s target of doubling tourism income was not an unreasonable one. Funnily enough, I bumped into him when we were in the Chamber for the vote, and he told me that with the coming of peace, Northern Ireland is well on the way to reaching that target.
Let us look at the effect of the Olympics on Londoners; as a result, they must feel a lot more proud of living in London. It should be hoped that things like the riots that erupted only the previous year are less likely if people feel better about the place they are living in. That is certainly true of my native city of Glasgow. The great thing about promoting Glasgow as a tourist destination is not so much that we have four times the number of four-star beds than we had 15 years ago, but that Glaswegians themselves have started to believe in their own city again. You cannot tell other people that somewhere is a wonderful place without starting to believe it yourself.
I would cite the effect of infrastructure on tourism as well. West End theatres would go bankrupt if we did not have tourism, so Londoners benefit from the fact that the tourist industry subsidises, if you like, their own enjoyment. My son, his wife and my two grandchildren live on the island of Iona, with a total population of around 90 people. However, there is a very good ferry service. Why is that? It is because the island is a tourist destination. The benefits of tourism to indigenous populations are huge.
In conclusion, and bearing in mind that the noble Lord, Lord Tanlaw, is to follow me in a few minutes, I would say this by way of compromise on British Summer Time. The current chairman of VisitScotland has advanced the notion that we should adopt British Summer Time on March 1. I know that there are apprehensions in Scotland about the effect of that, but I feel that if we moved BST forward to that date and saw the universal benefit that would deliver, it would pave the way for the adoption of double summer time throughout the country.
The Earl of Glasgow
My Lords, I would like to make the Committee more aware of how important historic buildings and gardens are to the British tourist industry. It can be shown that Britain’s heritage, specifically its stately homes, castles and designed landscape, is the single most quoted reason for foreign visitors coming to Britain. According to VisitBritain, in 2011, some 9 million foreigners visited one or more of Britain’s historic houses, contributing £6,500 million to the economy. Here I must declare an interest in that I own a grade 1 listed castle and country park in Scotland that attracts 60,000 visitors a year. I am also a member of the Historic Houses Association, whose members are those who still own and live in their historic piles. Although I am transparently an interested party on this subject, I do have practical experience of what I am talking about.
For many years now, the Historic Houses Association has been trying to convince successive Governments of the importance of historic houses and castles to the British economy, how many foreign tourists we attract and how much our presence benefits local hotels, shops and pubs. According to its figures, the total expenditure generated by inbound tourist visits to privately owned historic houses is £1.6 billion per annum. The appropriate Minister for Tourism invariably listens to the HHA’s arguments with great sympathy but ultimately is never prepared to help us.
The Earl of Glasgow
There are no votes in making concessions to people living in grand houses; rather the opposite, we are targeted as people to be milked. Contrary to popular belief, the majority of those living in grand houses are not particularly rich—because they are living in grand houses. HHA members collectively spend £139 million a year to maintain their historic buildings and grounds, and these sums are barely enough to contain the dry rot and stop the wet coming in.
The late Nicholas Ridley, a Minister in the Thatcher Government, grew impatient with historic house owners bellyaching about the cost of maintaining their houses. “If they can’t afford to keep them, why don’t they sell them to people who can?” was the argument.
Baroness Bottomley of Nettlestone
He said the nouveaux riches rather than the anciens pauvres. I was his junior Minister.
The Earl of Glasgow
Oh, did he? I did not know that. I think his sympathy was the same. On the surface, this seems perfectly rational but it ignores the reasons why so many of us carry on, year after year, struggling to hold on to the buildings we have probably inherited and in most cases learnt to love, while continuing to lose money every year. To own such a place is a privilege as well as a burden. Perhaps we feel we owe the struggle to ancestors who were struggling before us.
I think I am right in saying that no stately home in Britain that is open to the public actually makes a trading profit. The ones that are surviving do so only because the owner has other sources of income or can resort to selling a Titian or a Van Dyck every other year to fill the gap. Nearly all the historic buildings in private ownership are now open to the public but the income derived from them only helps defray the cost of keeping the house wind and watertight. On top of that, we must pay VAT on all structural improvements we make to the building, while our rich neighbour can build himself a brand new, comfortable, warm house completely VAT-free.
Now we hear that the Government intend to cap sideways loss relief, which was one of the few forms of tax relief to the beleaguered owners of historic houses. Then, as my noble friend Lord Lee has already said, we have the prospect of a mansion tax some time in the future. In this time of recession, many owners of historic houses are holding on to their homes only by a thread. Already some are having to face reality, forced on them by their banks.
The Earl of Glasgow
I am so sorry, do you want me to finish? In that case, I really have only one more thing to say. They will have to sell up and may have enough money to live a comfortable and worry-free life for ever after, but every time this happens, Britain is a poorer place and its attraction as a tourist destination is diminished. I ask the Government to take the concerns of historic house owners more seriously and consider concessions that will help to ensure their survival. Otherwise, someday soon even the rich ones will run out of Rembrandts to sell.
Lord Tanlaw
My Lords, we all thank the noble Lord, Lord Lee, for giving us the opportunity to speak on this subject. Foreign tourists and UK citizens alike are generally in agreement that it is vital that the pound sterling remains throughout the UK as it is and that the timescales throughout remain synchronised as they are, even though they are the wrong ones. However, the threat of Scottish independence has created some doubts on both these matters. I am often asked which way I will vote on independence. I say to Scottish residents that if you believe in a Scottish pound that is not underwritten by the Bank of England—I do not believe in that—the answer is to vote yes and emigrate with your savings in pounds sterling.
The noble Lord, Lord Lee, mentioned the benefit to the tourist industry in Scotland and England of switching over to single/double summer time, something which some of us have advocated for years. However, if Scotland should gain independence via the referendum and/or further devolution of other aspects of government, may I suggest that the timescale remains an excluded subject, as it is today? At first glance, it may seem quite harmless to have a different timescale in Scotland to that which applies south of the border. It would be similar, some would say, to altering one’s watch when travelling on the Eurostar to Paris. The same could be said of trains travelling from London to Edinburgh with a one hour difference. The Westminster Government are intending to spend very large sums of taxpayers’ money to build a high-speed rail link eventually linking London and Edinburgh, resulting in a much reduced travelling time. However, if an independent Scotland switched to, say, single/double summer time and Westminster stubbornly stuck to the status quo, the trains going north across the border would still take nearly as long as they do today, thus obviating the need for an expensive upgrade of the line.
Conversely, if an independent Scotland chose to remain with the status quo and Westminster went over to single/double summer time, the trains travelling north would appear to have their time reduced by an hour, thus again obviating the need for an expensive upgrade of the line. I have not chosen trains as a facetious example but one in which time change, if it is not carefully adjusted, has an effect on major capital expenditure, which affects all taxpayers. If the Scots, in their enthusiasm for independence, decide to change the timescale—they may be entitled to do that if we adjust the constitution accordingly—there will be secondary effects that will have very severe effects on our economy. Therefore, I ask for that to be taken into consideration.
Lord Stevenson of Balmacara
My Lords, I thank the noble Lord, Lord Lee, for keeping this important issue in our minds and for giving us the chance to repeat the debate that marked my first appearance on the Front Bench. I think that my opposite number also spoke on this subject on probably one of the first occasions that he spoke since he joined the Chamber; so it has memories for us.
This was rather a mixed debate in that we heard lusty praise for local attractions from all a round the Committee, but many of those attractions are outside London. That is a good thing. This is one of the rare times when we have had a debate that has focused on non-metropolitan issues. I am afraid that we did not come up with any policy options, which I think was the purpose of having this debate. Nevertheless, I think we are all agreed that it is important that there is a policy initiative. I have to disagree with my former Minister—the noble Baroness, Lady Bottomley—who I see in her place, as I felt that she rather overstated her praise for her successor but four, I think. When I was researching this subject I was struck by the fact that when the Secretary of State before the current one left office, his parting shot was to call for new county boundary signs, saying that the current signs greeting visitors as they travel round are dull, often boring and do little to entice tourists. Surely we can do better than that. I hope that the noble Lord will give us some idea of the policy options available to him and his colleagues when he replies to the debate.
I do not have time to go through all the various issues that were raised, and a number of them are very important but they are all around the importance of tourism to the UK economy. It is our sixth largest industry, third largest export earner and accounts for about 9.1% of employment. Surely something can be done about it. The fact that it is so joined-up suggests that it is not in its right place in the DCMS. Something more needs to be added on top of that. I am attracted to the idea that came up in another place that, as with architecture, one should have tourism experts or champions in each of the policy departments within which it operates. That is something I would like to see.
Many of the comments today have been about policy issues to do with air passenger duty, visas and their problems, brilliantly exposed by the noble Lord, Lord Bilimoria, and about what the Government might do to try to resolve that. When the noble Lord replies, can he respond to the question of whether his department has raised with the relevant departments in transport and the Home Office the issues that are causing such problems in the tourism area? This is important and, as somebody said, it always gets left to the last. The current Government and the previous Labour Government did not do enough to try to resolve the issues and get the benefits that would come from tourism if they were to be resolved.
Regulation in the industry is said to be difficult and overburdensome. It is possible that that could be picked up on and put further up the agenda. There is, of course, the question of taxation. I was attracted to the figures that were presented, particularly around the reduction of VAT. I know from my recent experience in Ireland, which we visit, that the reduction there in their rate of VAT, particularly in the hospitality industry, has had a huge impact in terms of the activity going on in that area. It must, in some ways, be at least self-financing there—something that we would recommend to the Government, even though I know that the response will be that these are matters for the Chancellor of the Exchequer.
Lord Gardiner of Kimble
My Lords, I congratulate my noble friend Lord Lee of Trafford on securing this debate and acknowledge the wide-ranging and, I may say, formidable expertise. It is very good to see my noble friend Lord Montagu in his place today as a very distinguished former chairman of English Heritage.
The Government recognise that tourism is vitally important for the future of the UK’s economy. The noble Lord, Lord Stevenson of Balmacara, referred to it as the sixth largest industry, but I think it might be the fifth largest, and the third largest export earner. I say to the noble Baroness, Lady Liddell, that it really is central to the Government’s strategy for growth for all the reasons that I hope I can unfold.
Tourism drives investment and, along with the hospitality industry, directly supports over 1.4 million full-time and more than 1 million part-time jobs. The tourism sector provides opportunities for employment, develops valuable skills and offers a real career in the private sector across all the regions. I was pleased that my noble friend Lord Roberts of Llandudno and the noble Lord, Lord Gordon of Strathblane, referred to this. Indeed, tourism may well become our fastest growing sector over the next decade.
The Government’s tourism strategy published in 2011 focuses on delivering a first-class welcome for visitors and providing a high-quality product. The Government want to create the right conditions for tourism to be an engine of growth by removing unnecessary barriers. I was particularly mindful of the comments of the noble Lords, Lord Stevenson of Balmacara and Lord Faulkner of Worcester, on regulation. We are grateful to the Tourism Regulation Taskforce for preparing its recommendations, and DCMS continues to work across Whitehall to deliver changes wherever possible.
Noble Lords have referred to changes in daylight hours, and I am mindful that the noble Lord, Lord Tanlaw, has expressed a certain view. I am also mindful that the noble Baroness, Lady Liddell, referred to Scotland. The point has very much been put to me that we need to try to develop consensus on this matter so that the whole of the United Kingdom feels comfortable about it.
My noble friend Lord Lee and the noble Baroness, Lady Valentine, mentioned air passenger duty. This is a matter, as has already been suggested, for the Treasury. However, we cannot look at this in isolation because we must remember that other countries levy a variety of tourist taxes that this country does not. Furthermore, air passenger duty provided £2.6 billion to the Treasury in 2011-12. We need to very careful and cautious as it would be difficult to forgo this revenue without making cuts in other areas. The matter of VAT, which was also raised, has been examined by the Treasury. I refer to the significant VAT release for cultural attractions and public transport which are not available in different countries.
We have a world-class tourism product. Our towns, villages, cities, coastline and countryside, alongside our heritage, culture and shops, are exceptional. Being a gardener by name and by nature, I was of course delighted that my noble friends Lord Arran and Lord Glasgow referred to the glorious gardens of the west and more generally. We have some wonderful heritage in our historic houses and many other places, as well as our industrial heritage. I was delighted that the noble Lord, Lord Faulkner of Worcester, referred in particular to our railway heritage. I was also mindful of my noble friend Lady Bottomley speaking so powerfully and passionately about the interests of Hull, and I wish that great city well in its quest for the status of City of Culture 2017.
The number of people crossing international borders passed the 1 billion mark for the first time late last year. The tourism market is growing. The US and Europe remain our biggest source of visitors, but we must capitalise on the increasing number of people travelling from new markets. My noble friend Lord Lee and, indeed, the noble Baroness, Lady Valentine, referred to this. I specifically mention China. While we are already seeing a significant increase in the number of visitors from China—an increase of 20% in 2012— we must not underestimate the opportunity. By 2030, China will have 1.4 billion affluent consumers, which is a number greater than America and western Europe combined. Tourism must continue to adapt to attract and retain these important markets, and we must recognise that the Government will play their part. I am very mindful also of the point referred to by the noble Lord, Lord Bilimoria. We have introduced specific improvements for Chinese and Indian visas, which came into effect at the beginning of this month. It has been reported on Chinese television that 94% of Chinese visitors who apply for a visa are now successful, while 96% of applicants say that they are satisfied with the service they receive. We are also improving our aviation connectivity with China. For example, the UK has a new route to Chengdu. Improvements to our visa regime mean that targets to deliver 90% of applications online by December were exceeded, and at present over 90% of applications are online. We are also looking at Brazil, Russia, India and other emerging markets.
Through VisitBritain, the Government are investing £50 million in a £100 million four-year marketing campaign. I want particularly to acknowledge the work of VisitBritain and I am delighted also—
Lord Bilimoria
The noble Lord mentioned that 90% of visa applications from China and India are now being processed, but what about all those who do not even apply because we are not in the Schengen system? We are missing out on all of them. That is the point I was making.
Lord Gardiner of Kimble
I understand, but I am very short of time and I do not think I dare take any more interventions or I will not complete what I need to say.
I want to refer to the work of the noble Baroness, Lady Liddell, as a non-executive board member of VisitBritain. In addition, tourism also benefits from the GREAT campaign, which was given a £30 million boost for 2013-14. It targets not only our highest value inward investment destinations such as the USA and Brazil, but in 2013 it will focus on China. By 2015, all these investments aim to deliver an additional 4.6 million visitors and an additional £2.3 billion visitor spend, along with the creation of almost 60,000 new job opportunities. Recent figures show that we are on track to meet these targets. To date, direct government investment in tourism campaigns has totalled just over £70 million. In the first year alone, VisitBritain’s campaign has delivered £503 million in incremental spend for the financial year 2011-12 against a target of £373 million.
While London is an important gateway to the country, we market all the wonderful destinations across the UK. England, Scotland, Wales and Northern Ireland are all represented on the VisitBritain board, and the GREAT campaign provides the overarching framework for the promotion of the whole of the UK. I am mindful of the views expressed by the noble Lord, Lord Gordon of Strathblane, on Scotland’s continuing potential.
Last year, we used the Olympic Games to generate worldwide coverage of Britain’s attractions. This strategy resulted in 14,000 positive print and broadcast stories in the world’s media during the first six months of 2012, the equivalent of over £1.5 billion in advertising. We believe that these measures will offer real benefits to the sector. VisitBritain projects that the industry will achieve 33% growth in the number of international visits by 2020, up from 30 million to 40 million a year.
Domestic tourism is also a hugely important market, worth some 80% of tourism receipts. It has seen a significant increase, with 5.8% more being spent on domestic holidays in Britain last year. VisitEngland’s £25 million marketing campaign is expected to deliver an additional £500 million in consumer spending between 2011 and 2015. Recent figures show that this is working: in the eight-month period from early March to the end of October last year, VisitEngland activity generated incremental spend of almost £300 million. Furthermore, 56% of Britons plan to take a holiday or break at home over the next year.
VisitEngland has also received nearly £20 million from BIS and the skills regional growth fund for its Growing Tourism Locally programme. This will lead to the creation of about 9,100 indirect job opportunities. VisitEngland is also working with local tourism bodies and businesses to develop strong private sector leadership and better links with local enterprise partnerships; 150 destination management organisations have been created so far. The Government are also working with People 1st, the tourism sector skills council, to give people looking for work the skills to find it and to improve capacity and productivity.
Tourism is central to our plans for growth. The Government and the industry are working together and this is bearing fruit. February 2013 saw a 14% increase in the number of visits over the previous year, the highest increase since 2008. Recent findings from the Anholt-GfK Roper Nation Brands Index saw us move three places from 12th to ninth in terms of international perceptions of the UK welcome, which I particularly hope will be welcome to the noble Baroness, Lady Valentine. However, we must do more. The tourism industry is highly competitive and we cannot afford to be complacent.
Tourism is a top priority for the Government. We have a great country with world-class tourism to offer and we must continue to market it effectively. The Culture Secretary and the Minister of State for Sport and Tourism are working with colleagues in the Home Office, BIS, the FCO and across government, as well as with committed private sector partners, to ensure that we capitalise on our potential, about which my noble friend Lord Lee spoke powerfully. We may not be able to fix the weather but we do have the opportunity to create a positive environment for tourism to prosper.
Herbal Medicines
(11 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Pearson of Rannoch
To ask Her Majesty’s Government when they will fulfil their commitment to establish a statutory register for practitioners supplying unlicensed herbal medicines.
Lord Pearson of Rannoch
My Lords, I declare an interest as unpaid patron of the UK’s Register of Chinese Herbal Medicine and as someone who is nearly cured by a course of Chinese herbs of a nasty skin complaint which western medicine finds difficult to deal with. I am also the leader of the United Kingdom Independence Party in your Lordships’ House and would be failing in my duty as such if I did not point out that our herbal medicine industry and those who depend on it owe their present predicament entirely to our membership of the European Union.
In that regard, my first question for the Minister is: why does the EU’s law of “subsidiarity” not apply in this case? Are the Government really saying that we as a nation are incapable of deciding for ourselves the rules governing the manufacture and use of herbal medicines, but instead have to be bossed around by Brussels?
The sorry saga starts with a new directive in 2001, number 83 of that year, which was amended by Directive 2004/24/EC. Article 5(1) of Directive 2001/83/EC contained a chink of light. It goes as follows:
“A Member State may, in accordance with legislation in force and to fulfil special needs, exclude from the provisions of this Directive medicinal products supplied in response to a bona fide unsolicited order, formulated in accordance with the specifications of an authorised health-care professional and for use by an individual patient under his direct personal responsibility”.
So the prospect arose of having to set up statutory regulation for our herbalists. Since then there have been two Department of Health committees and two public consultations, all of which have reported massively in favour of herbal medicines generally, and statutory regulation in particular. This is not surprising. A survey commissioned by the Government’s medicines regulator, the Medicines and Healthcare products Regulatory Agency—MHRA—found that 3 million of our people had consulted a practitioner of Chinese herbal medicine and 25 million had bought herbal medicines over the counter in the previous two years.
The happy result of all these expensive committees and public consultations was that in February 2011 the Secretary of State for Health, Mr Andrew Lansley, made the following commitment to the House of Commons:
“When the European Directive 2004/24/EC takes full effect in April 2011 it will no longer be legal for herbal practitioners in the UK to source unlicensed manufactured herbal medicines for their patients. This Government wish to ensure that the public can continue to have access to these products. In order to achieve this, while at the same time complying with EU law, some form of statutory regulation will be necessary and I have therefore decided to ask the Health Professions Council to establish a statutory register for practitioners supplying unlicensed herbal medicines”.—[Official Report, Commons, 16/2/11; col. 84WS.]
That, you would have thought, was that. But it was not. The purpose of this debate is to discover why not. Why have the Government not set up the statutory regulation they so clearly promised they would?
Here I have to enter the world of rumour and conjecture because the department has behaved in an unusually secretive and unhelpful way. For months it has refused to answer those questions or indeed to meet Mr Michael McIntyre, chairman of the European Herbal & Traditional Medicine Practitioners Association, and myself, to discuss these questions and their answers—and indeed the solution.
As far as I can see, this paralysis has been caused by Poland. It seems that Poland had been misusing the “special needs” provision of Article 5(1) to permit imports of cheap unauthorised medicinal products which contained the same active ingredients, dosage and form as drugs that were currently authorised for sale in that country. So Poland had been approving the import and sale of unapproved drugs, which were not medically essential for a specific patient, and thus breaking EU law. The EU Commission took Poland to the Luxembourg Court, which duly found against Poland.
It appears that it is this judgment which sent our Department of Health into its present state of funk, although of course our position is entirely different and we told the department so. However, rumour had reached the department that the Commission regarded Mr Lansley’s statement and promise to set up statutory regulation as a rebellious ploy to get round its wonderful EU edict. If the UK went ahead, perhaps we would also end up in Luxembourg, where the result is of course a foregone conclusion.
Faced with this situation, Mr McIntyre decided to take independent legal advice from Mr David Reissner of Charles Russell LLP. Mr Reissner is an acknowledged expert in pharmacy and healthcare law. He is chairman of the Welsh pharmacy appeal panel and a deputy district judge. So he knows his stuff. His opinion is clear on two issues. The first is that herbalists have to be statutorily regulated if they are to be authorised health professionals and thus have access to manufactured medicines for individual patients under Article 5(1) of the directive. Secondly, it is wholly wrong to fear that the ECJ’s ruling against Poland for misuse of Article 5(1) could somehow be applied to us and block our own statutory regulation. The Polish case is irrelevant to our national position.
I sent this opinion to the noble Earl, Lord Howe, Parliamentary Under-Secretary of State at the DHS in your Lordships’ House, on 8 April and once again asked for a meeting at the department with Mr McIntyre and the relevant Minister who is, I think, Dr Dan Poulter MP. I hoped that such a meeting would have rendered this debate unnecessary, but answer came there none and when I pressed the noble Earl, he comforted me with the information that my letter might be fast-tracked and therefore answered within 28 days—not much help for this debate. What sort of world do these people live in?
Therefore, my second question to the Minister, the noble Baroness, Lady Northover, who has my sympathy as none of this is her fault, is: when will Dr Poulter and those who advise him meet Mr McIntyre, and perhaps myself, to sort the whole thing out? Would it not be helpful if a number of noble Lords who are to speak today and who are interested in this subject came too, or will the Government take the unusual step of refusing to meet parliamentarians? What reason can there possibly be for continuing to refuse such a meeting?
There is much at stake here for the millions who benefit from herbal medicines for a range of common ailments which are not particularly well managed by conventional medicine. If statutory regulation fails to go ahead, a wide range of herbal medicines supplied by practitioners to their patients will be lost. The directive has already stopped practitioners prescribing herbal medicines made by manufacturers and herbal suppliers for prescriptions to individual patients. Also stopped have been third-party herbal prescription services which supply individual prescriptions to named patients at the practitioner’s request. Without statutory regulation, all that remains are herbal medicines prepared by practitioners on their own premises. This will ultimately put a great many practitioners and their suppliers out of business. Statutory regulation will instead provide much needed support for these thousands of small and medium-sized enterprises.
Besides all that, herbal medicine is cost-effective and should be encouraged to go on reducing the growing NHS drug bill. That is, of course, why it is hated by the pharmaceutical companies which appear to go to any lengths to snuff it out. However, I will say no more about that now because I am on best behaviour. Statutory regulation will ensure that the public are protected from poorly trained or bogus practitioners and from substandard herbal remedies. Without it much activity may go underground. Of course, I admit that there is the occasional unfortunate case with herbal medicines but they are minuscule, microscopic and invisible compared with the thousands of patients who are mistreated under our National Health Service. Statutory regulation will also support the professional education which has been developed in this country to a high degree standard. It is also supported by the MHRA itself.
It only remains for me to thank other noble Lords who are to speak in this debate. In those, I include the noble Lord, Lord Taverne, whose enthusiasm for herbal medicine is, I am told, less than 100% wholehearted. However, we are a debating Chamber and differing views are, therefore, welcome. I conclude by saying to him and all those who doubt the efficacy of herbal medicine that aspirin is derived from the bark of the willow tree.
I look forward to the Minister’s answers to my two questions.
Lord Taverne
My Lords, I am grateful to the noble Lord, Lord Pearson, for raising this Question. Not entirely unusually, I do not altogether agree with everything that he has said. My view is that the Government should not establish a register for unlicensed herbal medicines. To quote that indefatigable battler against quack science, Professor David Colquhoun, herbal medicine means,
“giving patients an unknown dose of an ill-defined drug, of unknown effectiveness and unknown safety”.
My objection is that licensing will confer on practitioners supplying these medicines a spurious respectability and credibility that can do great harm.
Every time I raise the lack of evidence for alternative medicine in this House, someone gets up, as the noble Lord, Lord Pearson, has now done, and says, “But I was cured” by whatever it is—Chinese herbs or homeopathy. On the last occasion I raised it in the House, the noble Baroness, Lady Corston, praised homeopathy and said that she hoped that my well known views, which she seemed to suggest were somewhat eccentric, would be ignored by the Secretary of State for Health. They are not entirely eccentric views; they are the views of the scientific consensus.
The noble Lord, Lord Rees, spoke about homeopathy at a time when he was still president of the Royal Society. He said that if homeopathy worked other than as a placebo all the laws of science would have to be repealed. There is not, to my knowledge, a single fellow of the Royal Society who supports either homeopathy or Chinese herbal medicine. The most detailed, careful, scientific, blind trials have confirmed that view. Only recently, the Chief Medical Officer, Dame Sally Davies, said she was perpetually surprised that the National Health Service still funds homeopathy. I recommend to those who advocate alternative medicine the book Trick or Treatment? by Professor Ernst and Simon Singh. It is extremely well researched and a very objective treatment, which does acknowledge when there may occasionally be some possible benefit, but on the whole their views and conclusions are quite plain. There are many reasons why many people feel better after treatment—often because placebos do work, whether after taking a homeopathic dose or treatment with herbal medicine. Private practitioners of alternative medicine often have more time for patients and may be good at tender loving care, which is a very important feature of good medical care. Often, people get better anyway.
Anecdote is not scientific evidence. People say, “Well, does it matter if treatment works only as a placebo?”. It does matter. Faith healing sometimes works, if people believe sufficiently strongly. In parts of the world, so does witchcraft. However, it really matters if people who are seriously ill do not take scientifically proved treatment, or if pharmacists, for example, prescribe homeopathic pills for malaria. Dr Wakefield was believed because many mothers reported that their children showed signs of autism after taking MMR. I remember a “Panorama” programme which interviewed several parents who told how this happened to their children. The programme was extremely sympathetic to Dr Wakefield’s views, and stressed how kind Dr Wakefield listened so carefully to these parents, but completely ignored the overwhelming scientific evidence that there was no established link between MMR and autism. In fact, the anti-vaccination campaign was organised by a group of people who were strong believers in alternative medicine. Today, we see the consequences in Wales.
Quack medicine is not harmless. We should not make it respectable by statutory registration, which suggests that it is not only respectable but officially licensed. Although the noble Lord, Lord Pearson, as usual, put forward his views very charmingly, I know of no one in this House who puts forward misleading arguments more charmingly.
Lord Colwyn
My Lords, I am grateful to the Committee for the opportunity to say a few words in the gap. I declare an interest as a patron of the Foundation for Research into Traditional Chinese Medicine. I am also president of the All-Party Parliamentary Group on Alternative and Complementary Medicine.
It is always a pleasure to follow the noble Lord, Lord Taverne. His claim that there is no evidence of homeopathy’s efficacy and that herbal remedies are useless is not new to me or to the Committee. When compared with the risk of taking food supplements, an individual is about 900 times more likely to die from food poisoning and 300,000 times more likely to die from a preventable medical injury during a spell in a UK hospital. Adverse reactions to pharmaceutical drugs are 62,000 times more likely to kill a UK citizen than taking a food supplement and 7,750 times more likely to kill than taking herbal remedies.
In February 2011, following a series of meetings with Ministers from the Labour Party and with the new coalition Government, the Department of Health announced that it would introduce a statutory register of herbalists by the end of 2012. Statutory regulation is absolutely essential because it is the only way that herbalists can continue to have access to a full range of manufactured herbal medicinal products. It is unreasonable that interference from the European Commission should hold up the establishment of this register.
My noble friend Lord Howe said recently:
“The legislation around this policy is complex and there are a number of issues that have arisen which we need to work through. We appreciate that the delay in going out to consult on this matter is causing concern; however, it is important that any new legislation is proportionate and fit for purpose”.—[Official Report, 19/3/13; col. WA135.]
Can my noble friend explain what,
“going out to consult on this matter”
means? I hope that it refers to consultation with representatives of the practitioners, their suppliers and relevant departments in the administration of this area. If it means more delay and uncertain outcomes for a sector already plagued with uncertainty, it is unacceptable.
However, the situation is not that straightforward. This afternoon in Central Lobby, I heard a rumour that the Government have changed their mind. Apparently, they have decided to drop all plans for statutory registration and will rely on licensing mechanisms to ensure patient safety. I do hope that my noble friend can give the Committee an assurance that this is not true. Should there be any substance to that rumour, further discussion and negotiation must be an absolute priority.
Lord Hunt of Kings Heath
My Lords, I should first declare an interest and I refer the Committee to my health interest in the register.
I am delighted to speak in this debate. I had ministerial responsibility for the regulation of herbal medicines a long time ago, but it was at the time when we first discussed the European directive. While I actually agree with almost everything that the noble Lord, Lord Pearson, has said, I do not quite agree with his opening remarks about the benefits or otherwise of the European Union. However, he speaks with a great deal of wisdom about a problem that we face.
I usually agree with the noble Lord, Lord Taverne. I have always enjoyed his interventions in your Lordships’ House on the side of rational thinking. However, I must depart from him today. Whether or not herbal medicines are effective, and that is of course open to legitimate debate, the issue we face is that an MHRA survey has shown that about a quarter of the population use over-the-counter herbal medicines. If that is going to continue, as I suspect it will, surely there is a responsibility on the part of the Government to make sure that arrangements are in place to ensure that they are safe as far as they can be, and that those people who prescribe and dispense such medicines are appropriately qualified and regulated. If the statutory register is not now to go ahead, one is left with the problem of the public continuing to purchase such medicines, as I am sure they will, but without the necessary statutory regulation. It is therefore important that we get a clear view from the Government today as to whether they will continue with proposals on statutory registration.
We were left with a very difficult problem with the European directive. To an extent, the provisions around traditional herbal medicines dealt with herbal medicines that had been on the market for a good many years—some 15 years, I think. However, it does not deal with the issue of new herbal medicines coming to market. For instance, if they had to go through the whole panoply of clinical trials, the cost would be prohibitive for a market that traditionally comprises small businesses. Even the licensing provisions for new herbal medicines are likely to cost several thousands of pounds. Again, that is very difficult for an industry that is essentially small-scale.
As a result of herbal medicines being brought within the Medicines Act 1968, which has been replaced by the European directive on traditional herbal medicinal products, this now prevents third-party manufacturing of herbal medicines being prescribed to patients by practitioners, as well as individualised herbal medicines prescribed by practitioners and manufactured by a third party. Both have been essential components in the supply chain for the past 40 years, with many practitioners relying on such services. Now those practitioners have to prepare medicines on their own premises. That is a real problem if those practitioners are not to be statutorily registered, especially in terms of public confidence.
The noble Lord, Lord Pearson, mentioned the ECJ ruling against Poland. I thought that this ruling was in relation to the parallel import of medicines. For the life of me, I cannot see why that should have an impact on the proposal for the statutory registration of herbal medicines. I know that there is an issue with parallel imports which the Government are right to be concerned about, but this is not essentially a matter of parallel imports.
Not having a statutory register will not curtail the use of herbal medicines, but it will increase the scope for unqualified herbalists to offer treatments and for customers to purchase unprescribed medicines over the internet. I know that the fear of the noble Lord, Lord Taverne, is that statutory regulation would legitimise a practice which he has cast doubt upon. However, I would ask him to consider the other problem, which is that if 25% of us use herbal medicines, is it not better to accept that they will continue to do so and put some statutory safeguards around that practice?
The benefit of regulation is that practitioners would be regulated by an independent regulator. I understand it is likely to be the Health and Care Professions Council. Of course, the HCPC is in expansionist mode, having just taken on social workers, much against my and many others’ better judgment. If it can take on social workers, it can certainly take on herbal medicine practitioners. Of course, the benefit of that is that it can strike someone from the register, prevent them from being called a herbalist, and thus give more confidence to the public. The noble Lord, Lord Taverne, will say that I am arguing his point for him and I recognise that by having statutory regulation the public are likely to have more confidence, but I think it is better that way than allowing herbal medicines to be purchased over the internet with all the problems that can arise. Many legitimate herbalists may go out of business, which would be a great pity.
I will end by making two points to the noble Baroness. First, why is her department refusing to meet the campaigners and indeed the noble Lord, Lord Pearson? As a Minister, I always met parliamentarians if they wrote to me asking for a meeting. I am very surprised that Ministers in the department have refused to meet the noble Lord, Lord Pearson. That is extremely bad form. Certainly they should meet with Michael McIntyre. I do not understand why the department has run away from such a meeting.
Secondly, there are obviously some very strong rumours that the department is going to drop this proposal. If that is the case, all that I would ask the noble Baroness is this. Would it not be sensible to meet with the noble Lord, Lord Pearson, and Mr McIntyre before a final decision is made? It would be only fair if there was some debate before such a decision is announced.
Baroness Northover
My Lords, I thank the noble Lord, Lord Pearson, for securing this debate. I thoroughly enjoyed his speech, and as the last debate of the day, he made sure that we are all wide awake.
I recognise that the Government’s progress in establishing a statutory register for practitioners supplying unlicensed herbal medicines is of interest both to Members of this House, as has been demonstrated today, as well as to consumers and practitioners who use these products. I am glad that the noble Lord was assisted by a herbal remedy.
The issue of whether herbalists and traditional Chinese medicine practitioners should be statutorily regulated has been debated, as the noble Lord, Lord Hunt, will be well aware, since at least the House of Lords Science and Technology Committee report in 2000. The Government appreciate that there is, understandably, strong support from many herbal practitioners for the statutory regulation of this group, and the noble Lord, Lord Hunt, has made the case as well. In addition, many consumers of herbal medicines wish to access unlicensed manufactured herbal medicines. As noble Lords will be aware, on 16 February 2011, the Government announced that they intended to take forward the regulation of herbal medicine practitioners and traditional Chinese medicine practitioners specifically with regard to the use of unlicensed herbal medicines within their practice.
At the time that the decision to take forward the regulation of this group was made, the Government’s intention was to allow herbal practitioners to once again lawfully source unlicensed manufactured herbal medicines. That is something which practitioners have not been able to do since April 2011, when a European directive made it illegal for herbal practitioners in the UK to source unlicensed manufactured herbal medicines for their patients.
Where the noble Lord, Lord Pearson, criticised the EU, others may well feel that the EU can offer a level of protection, depending on one’s point of view. Perhaps I can address here the issue of subsidiarity. The noble Lord suggested that this meant that it was not applying to herbal medicines. The principle of subsidiarity does indeed apply. The directive makes provision to facilitate the free movement of herbal medicines while ensuring a high level of safe public health. It was thought that the directive strikes the right balance of rules to facilitate free movement to the EU level, while maintaining flexibility through domestic implementing regulations.
Since the announcement in February 2011, the Department of Health has been working with officials in the devolved Administrations and the Health and Care Professions Council to look at establishing a statutory register for herbal practitioners supplying unlicensed herbal medicines, along with a strengthened system for regulating medicinal products, to enable consumers to have safe access to unlicensed manufactured herbal medicines.
This process continues to be complex and lengthy and, with regret, I must say that we are not in a position to consult on proposed legislation. My noble friend Lord Colwyn asked about what “going out to consult” meant. As announced in the Written Ministerial Statement in February 2011, any proposed statutory legislation has to go out to an open and public consultation. I hope that that clarifies the issue and reassures him. However, I am sure the noble Lord, Lord Pearson, will appreciate that it would be irresponsible for the Government to undertake to alter the status of a group of workers without first ensuring that the policy and final decision offers an appropriate form of regulation and ensures the proposals adequately address the risks posed to consumers of unlicensed herbal medicines.
My noble friend Lord Colwyn flags the serious dangers associated with all medicines. Nothing is risk-free, whether it is conventional or complementary medicine, or doing nothing at all. That is why it is important that there is careful regulation and consideration of all these areas.
We recognise the need to balance the economic wish of practitioners to continue to supply unlicensed herbal medicines and the wish of some consumers to have continued access to them against any risks identified. We understand that there is a strong desire in the field to bring the matter to a conclusion both for practitioners and the public. However, it is clear that there is a potential risk to public health where practitioners supply unlicensed herbal medicines which may be potent. For example, the Medicines and Healthcare Products Regulatory Agency has recently become aware that an unlicensed herbal product containing aconite, a prescription-only medicine in the UK which can cause serious and potentially fatal adverse reactions if consumed, is being marketed and prescribed by traditional Chinese medicine practitioners for the treatment of migraine. It is therefore crucial that the nature of the regulation in the sector is carefully thought through.
Lord Pearson of Rannoch
My Lords, does not the noble Baroness agree that in this case, which was flagged up in the Daily Mail the other day, statutory registration of the people who supply the product would be helpful?
Baroness Northover
Various noble Lords have made that point.
My noble friend Lord Colwyn asked whether the Government have in fact dropped the commitment to regulate. The Government recognise that there is a body of evidence about the public health risks associated with herbal medicines. It is important that the department does not proceed with the statutory regulation of any group, including herbal practitioners, unless we are sure that this will provide the necessary safeguards for patients. In other words, it is being looked at very carefully—whether the balance of regulation helps or hinders. Noble Lords have heard various views expressed.
Lord Taverne
Will my noble friend answer one question? Is registration supported by the Chief Medical Officer?
Baroness Northover
I am afraid that I cannot answer that very simple question. I may be inspired to do so shortly, but in the mean time I should say that this is a more complex area than that. Although I will be happy to come back to my noble friend, I think that there are a number of wider issues to look at.
Lord Hunt of Kings Heath
Perhaps I may also intervene briefly. I am most grateful to the noble Baroness for her answers, but can she be absolutely clear? Mr Lansley, when he was Secretary of State, announced an intention to implement a register by 2012. Does that mean that the Government are not going forward with it? I am not clear about this. The noble Baroness has said that she is not in a position to consult and has suggested that the Government are taking a new look at the relative risks. Can she help the Committee to understand whether in fact these rumours that the proposal has been dropped are correct?
Baroness Northover
I think that what I should do is continue with what I was going to inform noble Lords about. It may be that that will satisfy them in this regard. They are seeking an answer right now which I do not think I can give.
I should point out that while the Government are working through the issues relevant to this policy, this does not affect the availability of over-the-counter licensed herbal medicines. Significantly, there are now more than 240 products registered under the Traditional Herbal Medicines Registration Scheme. In addition, practitioners can continue lawfully to prepare herbal formulations on their own premises for use with their own patients. I also want to make it clear that the previous announcement made by the Government and any steps taken to regulate herbal practitioners should not be seen as an endorsement of the efficacy of herbal medicines either way. The Government do not have a view on the efficacy of herbal medicines that do not have a full marketing authorisation; in other words, a product licence. However, the Government do recognise that members of the public may wish to purchase complementary or alternative treatments, including herbal medicines. The Department of Health would always advise someone considering the use of complementary or alternative medicines to find a practitioner who is a member of an organisation that has set robust standards of qualification, an ethical code of practice, and a requirement for appropriate public indemnity insurance.
As I stated earlier, I regret that the Government are still not in a position to go out to public consultation on this matter, but we want to make sure that any proposals are proportionate and fit for purpose.
Lord Pearson of Rannoch
My Lords, in that case, perhaps the noble Baroness, before she finishes her remarks, would be good enough to answer the point made by me, the noble Lord, Lord Hunt, and other noble Lords. Will the Minister concerned and his officials meet interested Peers and Mr McIntyre? If not, why not?
Baroness Northover
Funnily enough, I was just going to get on to the point about a meeting. The noble Lord will be well aware that I am filling in for my noble friend Lord Howe. I am very sorry that it is me rather than my noble friend, with whom I am sure the noble Lord would rather have disputed this. However, my noble friend might very well be detained by the noble Lord, Lord Hunt, in the Chamber and so therefore he is potentially otherwise engaged. My noble friend Lord Howe is, as the noble Lord will know, most forthcoming in terms of engagement and meetings. I will pass on the request for meetings. I am informed that my noble friend has not refused to meet noble Lords—knowing my noble friend, I absolutely believe that—and the department will be in touch shortly. I hope that that reassures the noble Lord, Lord Pearson.
The noble Lord suggested that other speakers in this debate should be included. I was very struck by that, so I look forward to hearing reports of such a meeting, which clearly must include my noble friend Lord Taverne.
Lord Colwyn
My Lords, my recollection was, in February 2011, that it had been settled. We shook hands and congratulated each other on the fact that strategy regulation had been promised by the Government.
Baroness Northover
As I say, my noble friend Lord Howe is happy to meet people and no doubt this will be discussed further. Maybe I had better hurry up and conclude because I think I am about to go beyond time. Unless I hurry up, nobody will have a chance to say anything else.
Baroness Northover
No, we are all time-limited, as I know as a Whip. I am time-limited to 12 minutes. The fact that the debate can go up to an hour is neither here nor there.
I fully appreciate that this delay is causing concern among both practitioners of herbal medicines and consumers. However, I assure noble Lords that once the Government have worked through the difficult issues they face on this policy, an announcement will be made on their proposed way forward. I assure noble Lords that the Government are carefully considering this very important issue and that we anticipate being able to make a more substantive announcement shortly.
House of Lords
Retail Prices Index
(11 years ago)
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Lord Naseby
To ask Her Majesty’s Government why the UK Statistics Authority overruled the recommendation and decision of the Office for National Statistics, following public consultation, to keep the Retail Prices Index as an official national statistic and whether they intend to challenge its downgrading.
Lord Wallace of Saltaire
My Lords, the board of the UK Statistics Authority accepted the recommendations of the National Statistician both to produce a new index, to be known as RPIJ, and to retain the RPI as it is currently constructed. RPIJ is constructed in a way that meets current international standards whereas RPI was judged not to meet those standards. Because of this, the designation of the RPI as a national statistic was removed by the UK Statistics Authority, following a statutory reassessment which confirmed the finding of the National Statistician’s consultation that its formulation failed to meet current international standards.
Lord Naseby
Is my noble friend aware that this is a UK statistic and that international standards on statistics are, frankly, a little irrelevant? After all, is it not the case that the Office for National Statistics changed its mind from the original proposition, based on strong representations from finance, commerce, industry and savers? In the light of that, will my noble friend make further suggestions to the UK Statistics Authority that it thinks again and puts that badge of quality back on the RPI?
Lord Wallace of Saltaire
My Lords, I was not aware that either mathematics or statistics differed according to national boundaries. The only statistics course I took was in the United States. I should have thought that international standards—those of Eurostat, the International Labour Organisation and the IMF—are standards that the UK should follow without wishing to bring the defence of national sovereignty or hatred of the European Community into account.
Lord Peston
My Lords, does the Minister agree— I am sure he will agree as his background is similar to my own on this matter—that there is no such thing as a perfect price index—far from it? Those of us who taught the subject spent all the time explaining why there is no such thing. Is it not for the Government to explain what they want to use this particular index for? Is it to measure the inflation rate, in which case the RPI is not, in my view, the right index and the GDP deflator is, or is it to measure the cost of living? Even then, they have to answer the question: whose cost of living? Does the Minister agree with that?
Lord Wallace of Saltaire
My Lords, I have gone back into the area of statistics and I am happy to tell the House that there is a range of different measures of inflation in Britain—the RPI, RPIJ, RPIX, which excludes mortgage costs, and the RPIY, which excludes tax changes. Then there are the CPI, CPIH, CPIY and CPICT. I hesitate to explain all these in detail to the House.
The Lord Bishop of Ripon and Leeds
My Lords, what advice does the Minister have for those widespread organisations which have historically used the RPI to alter pensions and salaries? They are unclear as to which of the various measures that the Minister just mentioned they should use for those purposes.
Lord Wallace of Saltaire
My Lords, they should not be unclear. The decision to maintain the RPI was taken precisely to leave clarity on the various forms in which the RPI is used as a reference point. I am quite clear from what I have read that the RPI as measured has an underlying upward bias of currently about 0.9% a year above CPI. That means that the Government end up paying more for index-linked bonds and elsewhere, which, in the long run, is against the interests of taxpayers although very much in the interests of investors and pensioners.
Lord Barnett
My Lords, the problem is not whether the Minister agrees with my noble friend Lord Peston. Is not the real problem with all these statistics whether anyone believes any forecast of anything? Is not the problem therefore not which is used but believing them?
Lord Wallace of Saltaire
My Lords, we could try giving up and steering in the dark if we want to, but trying to assess as well as we can what is happening in our economy and in the economies of our partners is a necessary part of the way we have to operate. We recognise that all measures will be imperfect. The decision to make changes in the RPI was taken to make it a little less imperfect than it was.
Lord Lawson of Blaby
My Lords, as the Minister who, a little over 30 years ago introduced RPIX, is not the most important thing to forget about all these indices and just to keep inflation really low? Then the difference between these indices is neither here nor there.
Lord Wallace of Saltaire
Digging into this, I am told that one of the problems is the way in which the RPI was estimated. They changed the way in which they calculated changes in the pricing of clothing, which got more and more difficult as discount stores were adopted. That is why the gap between CPI and RPI has widened in the past four or five years. That has a substantial knock-on effect for the Government, the Exchequer and for consumer prices.
Lord McFall of Alcluith
My Lords, in order to overcome the notion of dodgy statistics, the Minister will be aware that Parliament set up an independent body in the UK Statistics Authority which was first chaired by Sir Michael Scholar. As a result of that, he and others have resisted the massaging of statistics by politicians. Is not the UK Statistics Authority a bulwark to prevent the massaging of statistics by politicians? Therefore, we must commend the work of the UK Statistics Authority and resist any breach of it by politicians or others.
Lord Wallace of Saltaire
My Lords, one of the best things done in this area by the previous Government was to establish the UK Statistics Authority as an independent body. The decision was criticised on all sides. Some noble Lords will remember the article in the Financial Times by Chris Giles which said that it was appalling not to have abolished the RPI and move all the way towards the CPI.
Lord Howell of Guildford
Did the Minister notice the other day that Sir Mervyn King, the outgoing Governor of the Bank of England, said that one of the main contributors to rising RPI and therefore rising inflation was higher energy taxes? Every time the RPI goes up, it generates a gigantic increase in public expenditure through indexed provisions in the public sector. Could he possibly advise his friends to think again about some of the higher taxes that are being piled onto our energy costs in industry and in the home?
Lord Wallace of Saltaire
My Lords, the noble Lord is quite right to say that the extent to which tax increases are factored into the calculation of inflation is one of the problems. If you are not careful, when inflation is rising, you get into a positive feedback as mortgage interest rates rise, and that increases the measurement of inflation.
Air Quality
(11 years ago)
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The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley)
My Lords, since 2010 the Government have invested over £1 billion in measures that will help to improve air quality, including incentives for low-emission vehicles and sustainable transport. In London, the mayor is responsible for working towards national air quality objectives, and we work with him and London boroughs to improve air quality. Nationally, we support local authorities to deliver local measures and work with the devolved Administrations to improve air quality across the United Kingdom.
Lord Dubs
My Lords, I thank the Minister for that Answer, but the Government are not being very effective. Will the Minister confirm that in the UK as a whole there are estimated to be 30,000 early deaths as a result of poor air quality, that in London the figure is over 4,000, that the number of people who have an early death through poor air quality is second only to the number who die of smoking, and that about 17% of the National Health Service budget is used to deal with the consequences of poor air quality? Are we not dealing with a major national emergency, rather than something that can be dealt with as the Minister suggested?
Lord De Mauley
My Lords, we take this subject extremely seriously. It is fair to say that air quality in the UK has improved significantly over recent decades, but we continue to face severe challenges, particularly from nitrogen dioxide in densely populated towns and cities. As a Government, we are committed to working towards a much better situation and, indeed, towards full compliance with EU air quality standards. There is close working between departments and local authorities to consider air quality in all policy areas. The noble Lord mentioned health, and he is quite right, but transport, energy and planning are also important.
Baroness Gardner of Parkes
Can the Minister tell me about the health and welfare boards, and is it correct that in London only the City of London Corporation is doing anything at all in that respect? Can he inform me, as I live in central London, whether it is currently Knightsbridge or Marylebone that has the worst air in the whole of the UK?
Lord De Mauley
My Lords, there were quite a lot of questions in there. On the public health outcomes framework, in the financial year 2013-14 local authorities will take on new responsibilities for public health. They will be expected to deliver against 68 measurable outcomes set out in the PHOF. One of these indicators is air quality, but measures implemented as part of a package of transport interventions and street improvements will help to deliver against more than half those indicators.
On London, I cannot agree with my noble friend. The mayor has implemented an ambitious package of measures across the whole of London, including tighter lower emission zone standards, building Europe’s largest hybrid bus fleet and introducing London’s first ever taxi age limits. He has also introduced a number of other measures.
Lord Faulkner of Worcester
My Lords, would the air quality in London not have been improved had the mayor not abolished the western extension of the congestion charge?
Lord De Mauley
My Lords, that is a very complicated subject and maybe we should have a debate on it.
Lord Bradshaw
My Lords, can the Minister throw some light on the possibility of the electrification of the railway line between Barking and Gospel Oak? This line would carry not only electric passenger trains but much more importantly the large amount of freight that will emanate from the London Gateway port development, and as a consequence would keep a lot more heavy lorries off the roads of London.
Lord De Mauley
I cannot, my Lords, but I can say that the critical issue for achieving the EU targets is principally in the area of diesel vehicles.
Baroness Finlay of Llandaff
Given that poor air quality and particulate matter during pregnancy and for newborns in particular is known to increase the susceptibility to allergic disease later on in life, what work is being done to plot air quality with the use of health services by those who have severe allergic diseases and to plot the cost to the NHS of that air pollution?
Lord De Mauley
My Lords, I cannot answer the noble Baroness specifically. I will, if I may, write to her. I can confirm that in general terms we agree with her. Air pollution, particularly diesel emissions, as I have just mentioned, can be extremely harmful to health generally. It can aggravate existing heart and lung conditions, and better awareness of the health impacts from air pollution is important for the public so that we all know what we can do to protect ourselves.
Lord Hunt of Kings Heath
My Lords, the noble Lord mentioned compliance with European standards, but can he confirm that the UK is currently not compliant with the targets set by Europe? Can he also inform the House what penalties are likely to come from Europe because of our current position?
Lord De Mauley
Yes, my Lords. First, for particulate matter the United Kingdom meets both the daily and annual limit values. A number of member states face infraction proceedings by the Commission for failing to meet their limit values. The United Kingdom, like many other member states, faces significant challenges in meeting the air quality limit values, specifically for nitrogen dioxide, as I think I mentioned earlier. Significant transport and other measures have been put in place over many years to reduce the emissions of air pollutants. Twenty-two out of 27 member states reported that they exceeded the limits in 2010, and most are unlikely to achieve full compliance by 2015. The United Kingdom has secured time extensions for nine zones, with compliance in London not expected until 2025. This is similar to other major cities, including Paris.
The Countess of Mar
My Lords, the Minister has said that Her Majesty’s Government support a number of measures, both locally and nationally. Apart from measures to reduce the emissions from buses, can he say what some of those measures are?
Lord De Mauley
Yes indeed, my Lords. The Government are investing significantly in initiatives, particularly transport initiatives, that will contribute to further reductions in air pollution. There is a £560 million local sustainable transport fund for local authorities to support sustainable travel. Over £400 million is being spent on measures to promote the uptake of ultra low-carbon vehicle technologies. There is a £76 million green bus fund to enable bus operators and local authorities in England to purchase new low-emission buses. I could go on; it is a substantial list.
Health: Tuberculosis
(11 years ago)
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Lord Maginnis of Drumglass
To ask Her Majesty’s Government, in the light of the recent findings reported in The Lancet, why the incidence of multidrug-resistant tuberculosis in the United Kingdom is higher than that in other European countries.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the incidence of multidrug-resistant tuberculosis in the United Kingdom is not higher than in the rest of Europe. However, the proportion of TB cases in the UK that are multidrug-resistant has increased from 0.9% to 1.6% over a decade. Ninety-five per cent of multidrug-resistant cases diagnosed in the UK were not born in the UK.
Lord Maginnis of Drumglass
As always, I am grateful to the Minister for his frankness in his response. The reality is that compared with France and Germany, we have probably three times the rate of tuberculosis in the United Kingdom. In comparison with Italy, we have five times the incidence. The Minister made the point about immigration. Given that we are to have an influx of people from Romania, where the rate of tuberculosis is over seven times what it is in the United Kingdom, and is something like 22 times what it is in Germany and 36 times what it is in Italy, is it not important that his department is able to announce some measure that can be applied to ensure that we are not going to face an epidemic of tuberculosis? Is it not true that the cost of dealing with multidrug-resistant TB is about 14 times that of dealing with an ordinary case of TB?
Earl Howe
My Lords, as regards the very last point made by the noble Lord, he is absolutely right. To treat a multidrug-resistant case of TB typically costs between £50,000 and £100,000, and sometimes more if it is an even more complicated case, in comparison with about £5,000 for an ordinary case of TB.
In fact, to correct the noble Lord, if I may, the proportion of TB cases that were multidrug-resistant in the UK was not high compared with the rest of Europe. The only countries in western Europe with a lower proportion of cases that were multidrug-resistant in 2011 were Ireland, Iceland and Malta. However, I take his point about migrants from eastern Europe. Port health regulations give some powers at the port of entry but this involves knowing quite a lot about the individual, so we are left with what is open to us once the person is in the UK. Once here, health protection regulations can be used to provide local authorities with wider and more flexible powers to deal with incidents or emergencies where infection or contamination present a significant risk to human health, or could present such a risk. I could elaborate on those powers, if the House wished.
Baroness Sharples
My Lords, I had TB in my teens. I know that it often takes years to develop, but why are people not tested in their own countries before they come here?
Earl Howe
My Lords, we are now introducing a system of pre-entry screening. We recognise the contribution that latent TB makes to the overall TB disease burden and that is why we have commissioned NICE to produce a clinical guideline on this. In the countries where TB presents the most significant risk, we shall in future insist that people are screened before they enter the United Kingdom.
Lord Collins of Highbury
My Lords, drug-resistant TB will not subside until the problem is controlled globally. That requires not only intergovernmental co-operation but cross-departmental working. Will the Minister update the House on the Government’s position on the replenishment of the global fund, which will be useful in tackling this problem globally?
Earl Howe
My Lords, the Government fully support the need to scale up efforts to deliver universal access to TB prevention and treatment, and care and support services. Our target date for that is 2015. We have made a long-term commitment of £1 billion between 2007 and 2015 to the Global Fund to Fight AIDS, Tuberculosis and Malaria, and a 20-year commitment to the international drugs purchase facility, UNITAID, which is helping to increase access to and the affordability of TB drugs.
Lord Soulsby of Swaffham Prior
My Lords, if one puts together the high level of drug resistance in the Far East and the high level of migration from the Far East to this country, there is no reason why drug-resistance to tuberculosis should not be more evident than it is at present. If one compares the rate of drug-resistant tuberculosis in the United Kingdom with that of other countries in the European Union, it is fairly clear that we need to do something quite seriously, especially in densely populated areas such as London and Cardiff, before people can come and live in this country. What do the Government have in mind to deal with this issue?
Earl Howe
My Lords, this has to be dealt with nationally and Public Health England is leading a national oversight group for TB that brings together partners from the department, NHS England, local government, NICE, the British Thoracic Society and TB Alert to develop a strategy to reverse the trend of increasing TB rates in the UK. The group recently held its first meeting and the department will continue to support Public Health England in giving national policy leadership in this area.
Baroness McIntosh of Hudnall
My Lords, the Minister will be aware that the problem of multidrug resistance is not confined to TB; there are many other areas where we have every reason to be fearful about the development of drug resistance. Is the noble Earl satisfied that enough is being invested in research into the development of new drugs to be reasonably confident that we are making proper inroads into this problem?
Earl Howe
My Lords, the Government are supporting a range of research programmes to promote the development of new diagnostics, drugs and vaccines for TB. These include £6.5 million for the Foundation for Innovative New Diagnostics, £23.3 million for the Global Alliance for TB Drug Development and £10.5 million for the AERAS Global TB Vaccine Foundation. However, I will look into other areas of disease where there is drug resistance, and if I can supply the noble Baroness with further information I will be happy to do so.
Police: Convicted Officers
(11 years ago)
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Lord Trefgarne
To ask Her Majesty’s Government what discussions they have had with the Metropolitan Police Service regarding the arrangements for assessing the continued suitability of officers convicted of serious criminal offences.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, the Government have not had any specific discussions with the Metropolitan Police Service regarding the arrangements for assessing the continual suitability of officers convicted of serious criminal offences. The Mayor’s Office for Policing and Crime is responsible for holding the commissioner to account for his decisions in this regard. My noble friend will know, and I have written to him on this matter, that I share his concern that police officers should meet the highest standards of professional behaviour.
Lord Trefgarne
My Lords, I am grateful to my noble friend for that reply. Although precise numbers are difficult to come by, as he says, is it not the case that there are several hundred police officers still serving in the Metropolitan Police who have been convicted of serious criminal offences but who continue to serve—including, no doubt, giving evidence on oath in other criminal cases? Is that really satisfactory?
Lord Taylor of Holbeach
I understand the noble Lord’s concern, particularly as it is based on those figures, but in fact those figures are not accurate. I have been able to obtain some accurate figures. In 2005, a total of 46 officers were serving in the MPS who had a criminal conviction. That went down to 25 in 2010, and in 2012 there was a further decline to a total of 15 officers serving with the MPS with a criminal conviction. Of these 15 officers, the majority of convictions, 10 of them, were for traffic offences including excess alcohol.
Lord Elystan-Morgan
My Lords, I kindly put it to the Minister that 45 years ago, as I know for a fact, the police regulations covered all manner of conduct, positive and negative, in relation to police officers. Is there now an equivalent covenant which relates to all police officers in England and Wales, and, if so, does it refer to criminal offences?
Lord Taylor of Holbeach
The Police (Conduct) Regulations 2012 set out the standards that all police officers are expected to maintain. The standard on discreditable conduct, for example, states that police officers behave in a manner that does not discredit the police or undermine public confidence in them, whether on or off duty, and that police officers report any action taken against them for a criminal offence, any conditions imposed on them by a court, or the receipt of any penalty notice.
Baroness Doocey
My Lords, Home Office guidance states that police forces should reject potential recruits with convictions for serious offences. However, I am not aware that there is any guidance about what forces should do if serving police officers then go on to be convicted of serious offences. Is it not about time that the Government took the lead on this and issued clear guidance to forces about the suitability of officers who have been convicted of serious offences and the fact that they should no longer be allowed to serve in the police force?
Lord Taylor of Holbeach
My noble friend is right about the vetting procedures. The Government are committed to improving the integrity of the police. As noble Lords will know, on 12 February, the Home Secretary announced a package of measures to improve police integrity, and yesterday, my right honourable friend the Home Secretary and the police Minister Damian Green discussed police integrity with police and crime commissioners, who, as my noble friend will know, are responsible for making sure that these standards are maintained within their force areas.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for his answer to the noble Baroness, Lady Doocey, but he sounds a bit complacent about it. He is absolutely right that the integrity of the police is important not just to the public but to other serving police officers, who are dismayed that so many of their colleagues have convictions for serious offences. He says that he has had discussions; can he tell me what action will follow from them?
Lord Taylor of Holbeach
I have already talked about the 12 February announcement made by my right honourable friend the Home Secretary. The noble Baroness will know that part of our policy for improving standards within the police lies with the establishment of a College of Policing, which is leading a programme of ways to improve police integrity. It is important that the police generate these standards from within their own experience. It is not necessary for the Home Office to impose a standard on the police service. We are great believers that the integrity of the police force and the capacity for maintaining it lie within the police service itself. The figures that I have given have shown exactly that.
Lord Dear
Noble Lords will perhaps not be surprised when I say that I view the emerging picture of misconduct and, sometimes, criminality in police forces with great concern. There are a number of issues in this matter but one of them has to be attracting the right calibre of recruits in the first place, and then accelerating and developing leadership within the service. Can the Minister reassure the House that he, too, sees this as a fundamental priority? Can he reassure your Lordships’ House that when the results of the recently concluded consultation on leadership and fast-tracking have been evaluated in the Home Office, the Government will address this particular issue urgently and with all possible speed?
Lord Taylor of Holbeach
I can give the noble Lord that assurance. Earlier I referred to the vetting procedure also referred to by my noble friend Lady Doocey. The key thing is to make sure that you get the right people into the police in the first place. The vetting procedure set up by ACPO states that police forces should not recruit people with convictions, cautions and judicial or any other form of disposals which may call into question the applicant or their role in the service. It also states that each case must be judged on its individual merits; I think that the noble Lord will agree with that. Where standards have not been met, decisions about what action to take are for chief constables, based on the circumstances of each case. Other than in London, those decisions are monitored by the police and crime commissioners.
Procedure of the House
The Chairman of Committees
That the 5th Report from the Select Committee (Private notice questions; tabling oral questions; repeal of Standing Orders; repetition of answers to House of Commons urgent questions) be agreed to (HL Paper 150).
The Chairman of Committees (Lord Sewel)
My Lords, I beg to move that the fifth report of the Procedure Committee be agreed to. There are three Motions in my name listed on today’s Order Paper, so I shall begin by outlining briefly the procedure that we will be adopting.
The fifth report, to which I now seek the agreement of the House, contains proposals relating to the tabling of Oral Questions, the repetition of Answers to House of Commons Urgent Questions, and the repeal of three obsolete Standing Orders. I suspect that noble Lords may be more interested in the second Motion in my name, which relates to the Committee’s sixth report, on the establishment of the Back-Bench debates committee.
Lord Foulkes of Cumnock
I think there must be some misunderstanding. According to the document that I received, the fifth report will be taken separately and the sixth report will be taken along with the Motion. Surely it would be better to deal with the fifth report first and then move on to the sixth report.
The Chairman of Committees
I thank the noble Lord for that intervention. I am trying to explain the procedure that we will be adopting. I think that in about two sentences’ time I will make it clear that we will deal with the two reports separately. We will have separate debates on the two reports; they are not conflated.
We have not made a recommendation on what would be a major change to the House’s procedures in relation to a Back-Bench debates committee, so I will simply invite the House to take note of the committee’s sixth report at that time. There will be a debate in which all those who either support or oppose the creation of a Back-Bench debates committee will have the opportunity to speak. Since the committee has made no recommendation, my opening remarks will be short and non-controversial, and my position on the Back-Bench debates committee is neutral.
When the debate on the sixth report has run its course, I shall bring it to a close by again inviting the House to agree the take note Motion. I shall then formally move the third Motion standing in my name, which seeks the House’s agreement to the establishment of a Back-Bench debates committee.
Lord Peston
I have also misinterpreted what is on the Order Paper. I thought we were going to decide the question. Why are we wasting our time, particularly at this time of year, with a take note Motion? Some of us actually want something to happen. Is the noble Lord going to tell us that nothing will happen as a result of us sitting here and talking? That is not unusual in our House, but sometimes we might actually take a decision.
The Chairman of Committees
My Lords, the procedure I am trying to outline is the means by which we get to making a decision. Formally, we have to take note of the report. There will then be a vote on the substantive issue of whether we want a Back-Bench debates committee. I think that is now clear: two debates and a substantive vote on whether we go ahead with a Back-Bench debates committee. Once I have moved that Motion formally, I do not expect further debate at that point, and I hope that we can move straight to a decision.
I shall now briefly outline the recommendations contained in the fifth report. From now on, at this stage, I shall deal entirely and solely with the fifth report. First, on Private Notice Questions, as the report says, we considered a request by the noble Lord, Lord Trefgarne, to introduce a right of appeal against the Lord Speaker’s decision on an application for a Private Notice Question. We unanimously concluded that the current system works well and that it would be inappropriate to introduce such a right of appeal.
The Lord Speaker has a special authority which comes from being the only officeholder who is elected by an open election of all Members of this House. That brings with it a unique authority, and we should think very carefully in trying to abridge that authority by introducing a concept of appeal against the decisions of the Lord Speaker. We have therefore decided to recommend no change. From the amendment that he has tabled to the Motion on the Order Paper, it is clear that the noble Lord, Lord Trefgarne, is not satisfied with our decision. I am aware that he is, in particular, concerned about the level of consultation that takes place prior to the Lord Speaker taking her decision. The fact is that noble Lords applying for a PNQ already routinely supply covering letters setting out their reasons for considering that a particular proposal satisfies the threshold of urgency and importance. Their letters are considered by the Lord Speaker before she makes her decision, along with the views of the usual channels and clerks, which are normally sent to her office by e-mail.
Members of your Lordships’ House who have been involved in PNQs will know that a decision on a PNQ takes place within a very tight timescale. The request is usually put in during early or mid-morning and the decision is announced before the House sits. With that tightness of timescale, it is simply not feasible for the Lord Speaker to clear her diary, possibly at a few minutes’ notice, to meet those who have submitted PNQs. Therefore, I invite the noble Lord, Lord Trefgarne, to consider very carefully whether there is any point referring the matter back to the committee, without any clear instruction, when our views have been so clearly and unanimously expressed.
The Chairman of Committees
I shall touch on the committee’s other recommendations still more briefly. Noble Lords will be aware that we have, since the new year, been operating a trial procedure for the repetition of Answers to House of Commons Urgent Questions, under which only 10 minutes is allowed for questions and answers to the Minister. As our report makes clear, this has led on occasion to Back-Bench time being squeezed and that is not right. We believe that the fault lies with both Front Benches rather than with the procedure itself. We have therefore used this report to remind all noble Lords of the rules on supplementary questions and answers. Again, brief questions, not speeches, are called for. On this basis, we have recommended at this stage making the trial procedure permanent, but we will be keeping a close eye on its operation. If we encounter further problems, we will undertake to look again at the possibility of protecting Back-Bench time more formally, but in the first instance it is a matter of discipline, particularly for the Front Benches. Finally, we recommend the repeal of three ancient and obsolete Standing Orders. The report is self-explanatory. I beg to move.
Amendment to the Motion
Lord Trefgarne
As an amendment to the above Motion, at end to insert “, with the exception of paragraphs 1 and 2 on Private Notice Questions which should be referred back to the Committee for further consideration”.
Lord Trefgarne
My Lords, I will be brief and may no doubt be very easily persuaded to withdraw my amendment. I accept the principal conclusion of the Procedure Committee, which is that there should not be, in present circumstances in any event, an appeal against the decisions of the Lord Speaker. However, it is important that it is understood—I have to confess it was not well understood by me—that representations can be made to the Lord Speaker when permission to ask the Question is sought and should normally be made in writing. It would be nice if the Lord Speaker was willing, in principle if not in detail, to receive verbal representations for this matter because, as the noble Lord the Chairman of Committees has said, time is often very short and it simply might not be possible to write a suitable letter in the short time available. If he was able say that in principle the Lord Speaker would be willing to receive verbal representations, provided her diary was suitably free, that would be of great assistance to me. I beg to move.
Lord Foulkes of Cumnock
My Lords, I hope that this House will not pass this without substantial discussion. It really is quite an outrageous series of suggestions. I go from time to time to schools, under the guidance of the Lord Speaker and her predecessor, as part of the Peers in Schools programme to talk about this House and how effective it is in scrutinising legislation, challenging the Government and in debates. Over the past year in particular, I have begun to doubt whether I am actually telling them the truth when I say that. We are cutting down the time in which we can debate and challenge.
To give one or two examples before I touch on the precise issues of this report, the Leader of the House gave us an extra week of Easter Recess without any consultation, when we were not able to discuss, challenge, raise Questions or take up Statements that were made in the other place. We will be proroguing a lot earlier than ever: tomorrow, as I understand it. Important debates on membership of the European Union and nuclear energy were held the day before yesterday in Grand Committee. In a major debate on nuclear energy, Members were told that they had three minutes to talk. This is ridiculous. We are not debating things properly. Those two debates in the Grand Committee should have been on the Floor of the House and there should have been time to discuss them properly.
My friend the noble Lord, Lord Martin, and I have raised the issue of PNQs on the Floor of the House. There is 10 minutes for supplementary questions when Urgent Questions are repeated here. This is not just a question of the Front Bench. Both the Minister and the Opposition took up minute after minute, but then other Members spoke at length so there was insufficient time to ask questions. All that the committee is suggesting is that we remind Members of what is in the Companion. We can do that until we are blue, or red, in the face; we will still not get the message over to people. Why do we have to limit it to 10 minutes? Do people want to rush home at five o’clock for their tea? I just do not understand. We should be here to ask questions, to challenge, to discuss and debate. That is what we are here for. To limit it to 10 minutes seems totally arbitrary and ridiculous.
The Chairman of Committees said that the committee looked at but rejected giving Oral Questions 40 minutes instead of 30 to allow more time, which would have let more people come in. They say instead that they should limit such Questions to seven per Member in a year. Why limit it arbitrarily to seven? That seems totally gratuitous. Then, in order to persuade us, the Chairman of Committees says that it does not matter very much because it affects only seven Members, and the maximum number of Questions they ask is 10. If that is the number of Members and Questions, it will make no substantial difference. It is an unnecessary restriction.
I am afraid that this is typical of what comes from the Procedure Committee. It does not want debate and discussion. It does not want the Executive and their control challenged. We know that it is controlled by the Leader of the House and the government Chief Whip. It is about time that people admitted this and said so: that they control what is happening. They do not want the Government to be questioned and challenged. After the next election we will be changing sides. We will be the Government. I ask the people opposite to think of that.
Lord Naseby
My Lords, I support the proposal on PNQs. I have had the privilege of asking two recently, and the procedure followed by the Lord Speaker was entirely appropriate: one was rejected and the other was accepted. There is nothing wrong with it. In my judgment they need a finite length because they happen immediately, and the noble Lord, or Baroness, who has come across that issue is the person best briefed to ask that Question. It is inevitably a Question asked of the Minister of the day. That is the person who should answer the Question, and the best person to ask it is the noble Lord who has raised it.
I will make a couple of observations on Oral Questions, or rather ask for a clarification from the Chairman of Committees. I am mystified as to why Oral Questions should have to be asked in a calendar year. Most things in your Lordships’ House are done on a sessional basis. What is so different about Oral Questions that they now have to be asked within a calendar year? First, it means that the Table Office has to keep two logs, and secondly, noble Members have to keep two logs to know where they are within the calendar year. Within the Session it is so much easier. My question relates to clarity on that point.
Secondly, the words used are:
“to table no more than seven oral questions”.
I ask the Chairman of Committees: is an Oral Question Question 1, 2 or 3, or does it include, or not include, the topical balloted Question? In my judgment, the seven should be confined to Question 1, 2 and 3, and the balloted Question should be quite separate. I do not want to chastise my noble friend the Chairman of Committees, because he has a very difficult job. However, this is the second time that the Procedure Committee has not put in clear terms how this House operates, and it should not be for the Back-Benchers—even though some of us are pretty assiduous in Question Time—to keep correcting the Procedure Committee.
Lord Grocott
My Lords, I certainly do not agree with the amendment in the name of the noble Lord, Lord Trefgarne, which in effect would lead to appealing against the Lord Speaker’s decision. If that were done on the Floor of the House it would mean that the Private Notice Question was aired, irrespective of whether the Lord Speaker said yes or no. I certainly do not agree with that.
I am in part reassured that the Chairman of Committees says that even if we make permanent the procedure on repeating Urgent Questions from the Commons, it will still be reviewed. I would like to hear, certainly from the Leader of the House, that he endorses that. We are getting ourselves into a bit of a muddle on the relationship between the two Houses. Of course, our procedures are different, but there are areas—and Urgent Questions in the Commons being repeated here is one of them—in which if you get a mismatch it looks peculiar to any neutral observer.
In practice, because we are using the PNQ procedure here for repeating Urgent Questions from the Commons —I am sure the clerks would be able to give us the figures if we needed them—you can have an Urgent Question in the Commons that by definition is important; it would not be agreed as an Urgent Question if it was not immediate and important and needed urgent discussion. The Commons can have up to an hour to debate an Urgent Question, but when it gets to this end of the building the procedures are such that it is locked within 10 minutes.
There have been one or two quite spectacular mismatches like that, even in the relatively small number of Urgent Questions that have been repeated here as PNQs. I suppose it was my fault not to have put down some sort of amendment on this, but I would like to be reassured that the Procedure Committee will look at that kind of area, where there is an obvious mismatch between the scrutiny given to an important issue by the Commons and the scrutiny given by us. It is certainly not satisfactory to have these huge discrepancies.
We all know that the practical application of this procedure of repeating Urgent Questions will have no effect whatever on the behaviour of Members of the House. I am sure that the exhortation to keep Questions short has been made for much longer than I have been in the House, and has been routinely ignored. However, will the Leader of the House give me an assurance that among the reviews or consideration that will still be given to the application of this procedure, this mismatch between the two Houses will be kept under review as well?
Lord Martin of Springburn
My Lords, sometimes the repeating of the Urgent Question can be a bit narrow when it is kept to 10 minutes. It depends on the subject. Some subjects merit a longer period. I want to be as helpful as I can, but I believe that whether it is 10, 15 or 20 minutes, an allocation should be given to the Front Bench within that time. There is a case for saying that Back-Benchers should have one question and one question alone. When noble Lords go on too long, it is sometimes because they put more than one supplementary question to the House. There should be only one.
There is a case for a Front-Bench allocation, especially when it is borne in mind that the Urgent Question in the Commons is a little victory—I think that is the way to put it—for the Opposition. It is their way of being able to put aside the business for an hour or less to put their special case on an urgent matter to the House. It is within the gift of the Speaker to grant the Urgent Question, so even though privately the Executive, through the Chief Whip, might have said that they do not want that Urgent Question, the Speaker has granted it. By the time it comes to the House it might be something that the Opposition have achieved, although it could have been an independent Member in the other place who put down the Urgent Question.
It would be a lot tidier if the opposition Front-Bench spokesperson had a few minutes and the rest were given to the House, with Members bearing in mind that there should be only one supplementary question, rather than several. It is not about abusing the privilege, but it is unfair to those who are waiting to put their case when others are asking two or three supplementary questions instead of one.
On the amendment from the noble Lord, Lord Trefgarne, if I heard him properly I think he said that he had not realised that a written submission could be made to the Lord Speaker, so that is probably what he will do in future. That written support is very helpful. Oral supplication should not be the only way, because there could be more than one application in one day, which would mean the Lord Speaker holding court when several noble Lords wanted to be heard. That would be wrong. There would also be a temptation for those who support the case for the Private Notice Question to go to see the Lord Speaker as well.
As the Chairman rightly said, the Lord Speaker is elected by all of us here and not only has the duties of the Speakership in this House. It is well recognised that the Lord Speaker also has to meet people, delegations and opposite numbers from all over the world here in this House. That is a heavy diary, and I think it would be wrong to burden the Lord Speaker with oral applications when it is clear that we can have written ones. I thank the House for listening to me.
Baroness Royall of Blaisdon
My Lords, I thank the Chairman of Committees for his clear exposition. To my noble friend Lord Foulkes I would say that the Procedure Committee is not just a rubber-stamping committee. We do debate things long and hard, but clearly in the end we reach a consensus and abide by it.
I do agree with him on two points. One relates to recesses and prorogation. The Leader and the Chief Whip know my views extremely well, sadly for them. These decisions are taken unilaterally by the Government, understandably in some cases but not in others. I agree with my noble friend that it would be a good thing to have an opportunity to question the Leader of the House from time to time and perhaps to have points of order as they have in the other place. That is not to say that we should do everything that they do in the other place, but it is important for noble Lords to be able to question decisions from time to time when appropriate.
I also say to my noble friend that it has already been agreed that the Procedure Committee should consider issues pertaining to the amount of time available for noble Lords to speak in debates, especially when they are of the utmost importance. I think that that is already before the Procedure Committee, but if it is not I will certainly ask my colleagues on the committee to look at the issue.
On Oral Questions, it has been a long haul, but we have reached the right outcome. As the Lord Chairman said, the House made clear its views on the issue and he listened. He has now come forward with proposals that I find entirely acceptable. Like him, I commend to the House the paragraph about brevity in Questions. I also hope that we will all make an effort to be more inclusive and accommodating when it comes to noble Lords wishing to ask supplementary questions.
On Private Notice Questions to the Lord Speaker, I have reservations and fear that the House does not have the correct mechanisms for Questions to be asked on issues that fall between the criteria for Urgent Questions and PNQs, especially in recesses when the other place is not sitting. However, that is not the issue before us today. I am entirely content with the proposal from the Procedure Committee and, with respect, I disagree with the noble Lord, Lord Trefgarne.
Finally, on the repetition of Urgent Questions, on behalf of my Front Bench I undertake to keep supplementary questions short and not to abuse our position. My noble friend Lord Grocott was right to point that out in the report. The Lord Chairman has said that we must and will keep that under review, and I will support him in that.
Lord Hamilton of Epsom
Will the noble Baroness clarify what she means by points of order? Who are they for? Does she not accept that in the other place points of order are a complete abuse and are used to raise a mass of issues on which somebody cannot otherwise make their voice heard?
Baroness Royall of Blaisdon
My Lords, I would think these things through carefully before putting a proposal to the Procedure Committee. I am not looking for points of order in the way they have them in the other place. However, it would be useful from time to time to have a mechanism whereby one can raise issues on the Floor of the House. Sometimes I feel very frustrated because there are issues that I wish to raise, which is my duty as Leader of the Opposition, but unless there is something on the Order Paper that enables me to raise a point, I cannot do so. This is an issue that I wish to look at and I wish the Procedure Committee to look at.
Lord Laming
My Lords, as a member of the committee, one thing that has impressed me most from day one is that committee members recognise fully that the House takes very seriously these matters and gives very careful consideration to them. I hope that the noble Lord, Lord Foulkes, might be reassured by the fact that in the time that I have been on the committee, neither the Chief Whip nor the Leader of the House has attempted to intimidate any member of the committee. Indeed, one thing that struck me is the way in which the committee goes into these matters with great seriousness and in great detail. Sometimes the degree of detail rather surprises me. We know that whatever report we bring to the House, it will be very carefully scrutinised.
When the noble Lord, Lord Trefgarne, came before the committee, he had the opportunity to present his concerns. Of course he did it with great expertise, as the Chamber would expect. We considered his concerns very carefully, but we were unanimous that we would be ill advised to change the existing procedures. I hope very much that the noble Lord will not feel the need to press this. The reality is that all these items will, I am sure, be revisited from time to time. I support the committee’s report and its recommendations, and I hope that the House will do so too.
Lord Elton
My Lords, perhaps I may briefly detain the House to pick up one point, as it is the most suitable moment to do so. We have heard these encouragements to brevity in Questions ever since I can remember, but the only way of actually doing anything about it is as it happens. There is then a responsibility for both Front Benches, not just the government Front Bench, to bring their own side into compliance with the Standing Orders. That applies to many other procedures as well. If something goes wrong in a debate and there are only relatively inexperienced members on the Front Benches, then it falls to people who have been here for many years to take that responsibility on themselves, so that the House continues in good order. I hope that that is acceptable.
Lord Empey
My Lords, perhaps I may briefly raise one very minor point. It has occurred to me that when we deal with supplementary Oral Questions, there might be a difficulty for some Members with mobility issues in getting up quickly enough to actually put a Question. I do not know what the solution is, but perhaps the Chairman of Committees and his colleagues would bear it in mind. It frequently happens that in the area around here it tends to be easier for Members to get up and get called, whereas some Members who have difficulty rising in time may find it more difficult.
Baroness O'Cathain
My Lords, I think the noble Lord should cast his mind back to what happens on such occasions. I always note just how courteous people are about not interrupting people with mobility issues, and we all listen very intently to them. Actually, they normally obey the rules much better than those of us who are able-bodied.
Lord Desai
My Lords, I want to make one brief remark on the limit to the number of Questions we can ask. Rationing is an equitable but inefficient way of doing things. I hope that if the House accepts this we would be allowed a shadow trade in surplus Questions. Since I do not ask any Questions I will gladly trade mine with my noble friend Lord Barnett, who is always asking Questions.
Lord Cormack
My Lords, I would like very briefly to support the noble Lord, Lord Elton, and to say that he would be assisted in his aims if people were not allowed to read Questions.
The Chairman of Committees
Heaven forefend that we get a black market in Questions, my Lords.
I will deal briefly with the many points made in this short debate by noble Lords from all parts of the House. I turn first to the noble Lord, Lord Trefgarne. I hope that on the basis of what he has heard about individual Members of the House who are seeking a PNQ quite properly having the opportunity to make written representations and to put their case to the Lord Speaker, he will feel able to withdraw his amendment. He did ask whether I could give some sort of undertaking in principle. I am always loath to use the words—
Lord Trefgarne
My Lords, I apologise but we cannot actually hear what the noble Lord is saying. Could he speak up a bit?
Lord Sewel
It may have been that I was turning half way. If the noble Lord will forgive me, although I am dealing with his point I will not actually look at him. He asked whether I could give an undertaking in principle that the Lord Speaker would see individual Peers to make oral representations. I am loath to use the words “in principle” because I fear what they sometimes lead to, but I think it is highly likely that if the opportunity arises that might well be possible. But I have to warn noble Lords that the Lord Speaker’s diary is heavily timetabled—it is virtually impossible to find the odd gap in it. Given the very short timescale involved in making these decisions, which are made on the basis of paper representations, it would often be difficult to find such a gap in the short period of time between requesting one and a decision having to be made.
Lord Foulkes of Cumnock
I agree 100% with what the Chairman of Committees has just said. On that basis, I will go along with the recommendation, but on the clear understanding that if anyone, including retired generals, asks more than one question and goes on and on and on, I will take a leaf out of the books of the noble Lord, Lord Geddes, and the noble Countess, Lady Mar.
The Chairman of Committees
The noble Lord touches on one of the difficulties that we have. We pride ourselves on being a self-regulating House, and that is a discipline that falls on all of us. Once people start acting beyond the boundaries, it is extremely difficult to rein people in. I am afraid that the only way in which to do that at the moment is for the House to make its displeasure clear. It is not a very attractive means forward, but it is the only one available to us, and it ought to be used sparingly but sometimes quite deliberately.
I hope that the noble Lord, Lord Foulkes is now prepared to accept the limit of seven Questions a year. We decided on that because it helps us, a little bit, to work forward to an objective that the committee has of creating a context in which it is more likely that we widen the pool of people who ask questions. That is the right thing to do, and I think that we should try to make progress on that little by little.
I think that that deals with the main issues that have been brought up. At this stage, I ask the noble Lord, Lord Trefgarne, if he feels able to withdraw his amendment.
Lord Trefgarne
My Lords, I am obliged to the Chairman of Committees for his response to my amendment. I confess that I continue to be concerned by the difficulty of getting Private Notice Questions agreed. In the time that I have been in your Lordships’ House—a quite considerable time—I have sought to table something like 20 and I have never yet had one agreed. Perhaps I shall be luckier one day. In the mean time, I beg leave to withdraw my amendment.
Procedure of the House
(11 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chairman of Committees
That this House takes note of the 6th Report from the Select Committee (Backbench Debates) (HL Paper 151).
The Chairman of Committees (Lord Sewel)
My Lords, as I said when moving the previous Motion, the committee has made no recommendation on the issue of a Back-Bench debates committee, and the House is invited merely to take note of this report. My position on the appointment of a Back-Bench debates committee is therefore neutral. My task is simply to facilitate the debate and, after the debate, the taking of a decision.
The background to these two Motions is summarised in the report itself. Two years ago, the report of the Leader’s Group on working practices, chaired by the noble Lord, Lord Goodlad, was published. Among the group’s recommendations was the establishment of what the group called a Back-Bench business committee—a committee of Backbenchers whose task it would be to schedule certain types of Back-Bench debates. As noble Lords will be aware, there has been a Backbench Business Committee in the House of Commons since 2010, when it was established following the report of the Wright committee.
The report of the Leader’s Group has been extensively debated in this House but until today the House has not had the opportunity to take a formal decision on this particular recommendation. That we have this opportunity today is thanks to eight noble Lords, listed in the report, who put a paper before the Procedure Committee in February. They will speak for themselves in today’s debate, so I shall not summarise their arguments.
Shortly before the meeting of the committee in February, the Leader of the House, the noble Lord, Lord Hill of Oareford, put a further paper before the committee, in which he set out, on the one hand, his wish to improve the opportunities afforded to Back-Benchers to table business and, on the other, his opposition to a Back-Bench debates committee. The committee did not reach a decision at its February meeting but, instead, invited both the supporters of a Back-Bench debates committee and the Leader of the House to reflect further and to bring back further proposals to our March meeting.
That led to a welcome degree of consensus on the desirability of increasing the range of opportunities for Back-Benchers to table debates. Essentially we have identified various portions of time which either already are or could in future be set aside for Back-Bench debates: first, those Thursdays—one a month from the start of the Session to the end of December—that are already set aside for Back-Bench balloted debates; secondly, additional days in Grand Committee—at least one day for every six sitting weeks in the Session, or around six in total over a typical Session; and, thirdly, an additional one-hour slot on Thursdays, which would be allocated from the start of the Session to the end of January to a topical Question for Short Debate.
These slots of time have been agreed. The decision that the House has to take today is how to fill them. Our report briefly outlines the two proposals put to the committee. One involves the appointment of a Back-Bench debates committee; the other, proposed by the Leader, is broadly based on existing processes, such as ballots and first come, first served, with some variations. I shall leave the supporters of these two approaches to describe them in more detail. That is all I wish to say.
The third Motion in my name on the Order Paper has been drawn up to give the House an opportunity to decide on a fundamental issue of principle to do with how business in your Lordships’ House is selected and tabled. The committee has not sought to explore the options presented to it in detail and, as paragraph 19 of the report makes clear, further detailed work will be needed, whatever the House decides today.
This is an open debate, and I do not wish to limit it in any way, but it may be helpful to the House to hear, first, from one proponent for each of the two options set out in the report. I understand that the Leader of the House would like to speak early, which I think is appropriate, so I suggest that he speaks once the Question has been put, and then perhaps we might hear from the noble Lord, Lord Butler of Brockwell, who brought the proposal for a Back-Bench debates committee before the Procedure Committee.
Lord McConnell of Glenscorrodale
Will the Lord Chairman clarify the position that he has outlined? The Motion implies to me—and I may have misunderstood it—that in order to secure the additional slots for these debates, it is first necessary to approve the new Back-Bench Members committee. If this Motion is rejected, will the new slots still be scheduled but just by a different means?
Lord Sewel
Yes, I am happy to give that clarification. The new slots have been agreed. What we must decide today is how those slots are filled and who has responsibility, whether they are selected by the traditional method of ballots and first come, first served or by a Back-Bench committee. So even if the Back-Bench committee proposal is rejected, the new, identified slots remain. I hope that that is helpful. In conclusion, I beg to move that this House takes note of the 6th Report from the Procedure Committee.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)
Would the noble Lord, Lord Butler, like to speak first? It might make more sense and, if he would like to do so, I should be delighted to give way.
Lord Butler of Brockwell
My Lords, I think that I should defer to the Leader of the House but if he would like me to speak first, I am very willing.
I support the Motion that the House should establish for the duration of the 2013-14 Session a Back-Bench debates committee but I should first make it clear that I have no particular status in doing so. I was just one of eight Members of the House—who will no doubt speak for themselves—who put this proposal to the Procedure Committee. I also speak as a member of the Leader’s Group on the procedures of the House, chaired by the noble Lord, Lord Goodlad, which originally made this recommendation. I say that because one Member suggested to me that I was taking a lead on this because I wished to be made chairman of the Back-Bench committee. I assure the House that I have no aspiration to do that at all and I hope that the fear that I might be chairman will not deter Members of the House from voting for it.
It is also important to remind your Lordships of what the terms of reference for the Back-Bench debates committee would be. The Chairman of Committees explained it to us but there has been some mis- understanding. The proposal is:
“That the Committee be appointed to schedule debates, to be moved by backbench and Crossbench members, or by Lords Spiritual—
During the time currently set aside for balloted debates;
On at least one day in Grand Committee for every six sitting weeks in the session;
That the Committee schedule a one-hour topical Question for Short Debate each week, from the start of the session until the end of January, to be taken on Thursday between the two time-limited debates”.
I emphasise these limited terms of reference because there has been some impression that existing arrangements for Back-Benchers to put down Questions for Short Debate would be transferred to a Back-Bench debates committee. As the terms of the proposal make clear, that is emphatically not the case.
Speaking as a Back-Bencher, I express my appreciation to the Leader of the House for his proposal to increase the time available for topical debates and Questions for Short Debate. I know that he wants to increase the opportunities for Members of the House to take part in debates, and that is very welcome. The only issue between us is that, as the Chairman of Committees has said, the Leader opposes the proposal by the Goodlad committee that subjects for Thursday two and a half hour debates in time allocated once a month to Back-Benchers and for a new topical short debate should be chosen by a committee of Back-Benchers instead of, as now, by ballot.
I remind the House of the current situation by which subjects are chosen for debate in the two and a half hour slots on Thursday. The choice of subjects for debate on government or opposition Motions on Thursdays is made by the Government or opposition parties, presumably after discussion and presumably for their own party-political reasons. As I know, the choice of subject for debate on Cross-Bench days is discussed in the meeting of the Cross-Benchers. In our group, we often take a vote on the subjects for which we should use that time. However, the choice of subjects on Back-Benchers’ days is made by the random process of a ballot—a lottery. There is no rational process for choosing subjects that may be of general or topical interest and may make best use of the expertise available in the House to debate matters of significant national interest. As a result, subjects that come out of the hat for the use of this precious Back-Bench time may be of only minority interest and may even attract insufficient speakers to make best use of the two and a half hours provided.
Lord Forsyth of Drumlean
The Back-Bench committee in the other place is, of course, elected and not selected by the usual channels. Can the noble Lord tell us how he sees this committee being selected? My view of it is very dependent on it being elected if it is to be as effective as the noble Lord suggests.
Lord Butler of Brockwell
The method of appointment is not specified in the resolution but, for my part, I wholly agree with the noble Lord. It is right that such a committee should be elected and it should, of course, include representatives of all the groups in the House, as indeed happens in another place.
The establishment of the committee has been a success in another place. The Procedure Committee there says that it has been widely welcomed as a successful and effective innovation. The Government have said that they “agree with that conclusion” of the Procedure Committee. I suspect that agreement may be through gritted teeth, on the grounds that what has been done cannot be undone. I also suspect—and I hope that I am not doing the noble Lord the Leader an injustice—that the Government in this House suspect that the subjects chosen for debate by a Back-Bench debates committee might be more interesting and more topical than they would ideally wish. Of course, individual Back-Benchers should, and will, continue to be able to get unintermediated access to the Order Paper through Questions for Short Debate, and the Leader has said that opportunities for such debates will be increased.
Therefore, I urge the House to support the Motion for a trial run of a Back-Bench debates committee, as recommended by the cross-party Leader’s Group chaired by the noble Lord, Lord Goodlad. If we are eager, as we should be, to promote the relevance of debates in this House and the better use of the time and expertise that are available here, we should do so. My message to the House is: Back-Benchers of the House unite—you have nothing to lose but your chains.
Lord Hill of Oareford
My Lords, I am grateful to the Lord Chairman for his introduction and to the noble Lord, Lord Butler of Brockwell, for getting our debate under way. It is extremely good to see a former Cabinet Secretary, who operated at the highest levels within Whitehall for many years, not always in the glare of transparency, openness and accountability, arguing for it so forcefully this afternoon. Like him, and in response to the point made earlier by the noble Lord, Lord Peston, I am very glad that we have this opportunity for the whole House to decide how it wants to move ahead in organising Back-Bench debates. It is good that we have a full House today to discuss it, and it will be good to reach a clear decision later this afternoon as to how we want to proceed.
I am aware that the question the noble Lord, Lord Butler of Brockwell, and other noble Lords have raised about whether to have a Back-Bench debates committee or not has been hanging around for some time. As a new Leader, I am keen that we should answer it then plan accordingly. I do not want to speak for very long because this is above all a Back-Bench occasion, but I would quite like to do three simple things, if I may. First, I will explain the proposals for the new time for debates that I have made. Secondly, I should like to clear up any misunderstandings that there might be about how our current arrangements work. Thirdly, I will set out what I think is the issue of principle on which we all need to decide today.
When I started thinking about this for my first Procedure Committee meeting, I was struck by the arguments that have been made in favour of having more topical debates and, indeed, for creating more opportunities for Back-Bench Members to initiate debates more generally. I thought those arguments were absolutely right and, as I think the noble Lord, Lord Butler, said, I am extremely keen to provide opportunities for as many Peers as possible, especially newer Members or those who are not able to attend the House as frequently as others, so that as a Chamber we are able to make the best possible use of the full range of contributions that we have at our disposal.
Therefore, as fast as I could, I came forward with two proposals. One was to create a new, regular weekly slot for a topical short debate on the Floor of the House, which I have suggested could also provide a route for getting a prompt debate on a Select Committee report. This would increase the number of short debates on the Floor of the House by about half. The second was to make more use of the Moses Room for short debates, thereby doubling the number of opportunities for Members to have debates there. So there would be more time for topical debates, guaranteed time on the Floor of the House and capacity for twice as many short debates in Grand Committee.
These proposals for additional time for Back-Bench debates were welcomed by the Procedure Committee and, to be clear, they are not at issue today; they apply equally to whatever the House decides. I think this was the point raised by the noble Lord, Lord Grocott. The decision before us therefore, as the noble Lord, Lord Butler, said, is how we want this offer of additional time, plus the time that is already set aside for monthly balloted debates, to be used. Do we want it to be allocated in future by a Back-Bench debates committee or do we want it to be allocated broadly along current lines?
Let me say a few words about our current arrangements, as I am not sure that they are always well understood and I think there is a feeling that they are less transparent than perhaps they are. For short debates, Members are free to choose any subject that they want: they simply put their Question down on a waiting list, which is printed in House of Lords Business, and are taken in turn. For balloted debates, Members pick their topic and put the Motion into a ballot which is drawn by the clerks for a particular day. The key feature of these two processes is that neither the identity of the sponsoring Member nor the particular topic that they have chosen has any bearing on their prospects of securing a debate. All entries to the ballot have an equal chance of being drawn. All entries on the waiting list for short debates are offered time in the order in which they were tabled, subject only to a practical constraint that a Minister and shadow Minister must be available to participate and that Members waiting for their first short debate of the Session come before those waiting for their second.
To be crystal clear on this point, there is no selection by the government Chief Whip or the usual channels on merit, personality, party, group or personal profile, or on anything else. This principle—that the views of individual Peers matter and that they should all have an equal chance to pursue subjects they care about and get them debated in our House—is at the heart of how we think of ourselves as a House. It is particularly important for Members who are less well known or who are able to attend less often, who might find it harder to persuade a committee of the merits of the case. Our current approach means that we end up with debates on a wide range of subjects, from the treatment of homosexual men in developing countries to the future of English cathedrals. This allows for the independent-minded, for the quirky and for the whole range of outlooks and experience on which this House is able to draw and which, I believe, is its particular strength.
I agree with the point that the noble Lord, Lord Butler, made—I am sure that other noble Lords will make it later on—in that I do not take the view that everything in our current arrangements is perfect and cannot be improved. I take the point, for instance, that ballots can sometimes produce debates that are undersubscribed. I do not think that our processes are clear enough to the very Members they are intended to serve. However, there are practical steps we could take to mitigate those potential difficulties and which we could discuss in the Procedure Committee. I hope I have made it clear that I am keen to do that if that is what the House would like.
Lord Crickhowell
My Lords, can my noble friend go a little further on this very point? At the moment he got to it, I was reading the sentence in his letter which said that,
“there are reforms we could make—for instance, to ensure that debates drawn by ballot command sufficient interest in the House”.
He has now said that this is a matter we can discuss in the committee. We need a little more clarification about what he has in mind on that point, as it really is central to the argument put to us by the noble Lord, Lord Butler.
Lord Hill of Oareford
As the Chairman of Committees made clear earlier, on both proposals some of the precise details of how one can address these points will need to be worked through. For example, it would be possible to have criteria around the amount of support that there was for a particular balloted Motion, such as the number of people. It is also the case—this is why one would need to work this through and come back to the House before going nap on it, because that is also extremely important—that, as the Procedure Committee knows only too well, every suggestion that might address a particular problem can give rise to another set of problems. That is the kind of thing we would need to address.
Baroness Butler-Sloss
At the moment I am somewhat neutral and not at all sure which way I would want to vote. One point that is made by the sixth report, and which was put forward by the noble Lord, Lord Butler, concerns dealing with issues that are either topical or of long-term national importance. The difficulty about the ballot is that you cannot get those issues in, perhaps at rather short notice, for an hour’s debate. How would the noble Lord expect that issue to be dealt with?
Lord Hill of Oareford
On the principle of having to set some criteria, for example on identifying topicality, I shall just go back one stage. I am very glad to have been able to come up with this new proposal for guaranteed time, once a week, to deal with a topical issue on the Floor of the House. I very much accept that we need an opportunity to do that. One would need to establish some points around topicality in exactly the same way as a Back-Bench debates committee will have to come up with a set of criteria within which it would operate in choosing those debates. I accept that we would need to do that work; I would need to come back and show the House those processes.
Lord Campbell-Savours
The noble Lord referred earlier to the quirky. How will the quirky meet these new criteria? He prayed in aid the need for the quirky Motion to be tabled. How would that work?
Lord Hill of Oareford
There are a number of different points there. I certainly used the word quirky—I quite like quirky. This goes to the heart of the issue of having a rational process. The noble Lord, Lord Butler, talked persuasively in some ways about wanting a rational process. That could obviously mean a process that can lead, over time, to confirmation around a kind of norm. It could lead to a group of people’s sense of what is rational being superimposed on that of others. On retaining quirkiness, we are more likely to have quirkiness in balloted debates and on QSDs more generally if we do not have a sifting process. The topical slot is a different matter.
Lord Tyler
I am following my noble friend very closely because I have some sympathy with his point of view and I pay tribute to him for bringing forward some extremely interesting proposals. However, the House does itself no good service by constantly referring to this process as a ballot. It is not a ballot, as the noble Lord, Lord Butler, said. It is a random process. Anyone listening to this debate would think that there was some estimate of support and merit for the proposals that come before the House. Can we please get away from this suggestion that we somehow ballot to see whether there is merit in a particular suggestion? Even on the quirky issues to which the noble Lord refers—I have some sympathy, being a quirky sort of guy—we do not get any opportunity to assess the quirkiness of a Motion because we do not have a ballot.
Lord Hill of Oareford
My Lords, we do have a ballot. I have had this conversation before with my noble friend, who I know takes the view that it is a lottery rather than a ballot. It is a ballot by definition, one in which everyone has an equal chance and does not need to persuade others of the merit of their case or the wisdom of the topic that they want to debate. They have an equal chance among all their peers.
Lord Filkin
My Lords, I appreciate what the noble Lord the Leader has done in seeking to respond to the pressure for more Back-Bench debates and time. That is utterly commendable. However, he is proposing a mechanism whereby we would still have a lottery in which we chose from topics that were judged to be topical. Who will decide that topicality question? Clearly, from previous discussions, that topicality would have to be decided by the clerks, under whatever guidance the House had given them. That puts them in the invidious position of making a judgment about whether an issue is topical, and it would be much better if such judgments were made by the House itself by the only mechanism that it can—through a properly appointed committee.
Lord Hill of Oareford
My Lords, topical Questions each week are dealt with in precisely that way. As I have said, we would need to agree in the Procedure Committee, in just the same way as we would if we end up with a Back-Bench debates committee, the criteria by which that committee will reach decisions, because the House will want to know on what basis the judgments that the Back-Bench debates committee is making are being determined. At an earlier stage, the proposal for the Back-Bench debates committee was that it would make the consideration and would not have to give reasons, perfectly properly, for why it had reached its decisions. Whichever route we go down, we will have to have a set of criteria within which we operate, so that the House knows what the basis of the decision is.
My point, though, is that I am not proposing new procedures. The proponents of a Back-Bench debates committee are proposing a new procedure. I am effectively saying that we would still have the way in which we have already operated for a long time. There could be some improvements in terms of different criteria, cut-offs and so on, if that is what people want to pursue, but we would fundamentally stick with the current system. It is those who want to change the system who are proposing the innovation.
Baroness Farrington of Ribbleton
My Lords, the noble Lord the Leader has referred several times to the establishment by the Procedure Committee of some sort of guidance. To whom is the guidance given in this system if we do not have a Back-Bench committee? I do not follow this. I understand the lottery and I understand the Back-Bench committee but, if I do not like the interpretation of the guidance that leads to a particular result, to whom do I complain?
Lord Hill of Oareford
The guidance would be available to Members of the House in the same way as our guidance is currently available to Members of the House.
To move on, the issue of principle on which we are being asked to decide today is simple: do we want to stand by our current approach or do we want to introduce a new filtering mechanism for this new package of time, whereby a Back-Bench debates committee makes these decisions and decides what will be debated on behalf of us all? That, in essence, is what we are being asked to decide.
I want to make one final point, and then I know that the House would like to hear from Back-Benchers. Those in favour of a Back-Bench debates committee will obviously want to vote in favour of the Motion for resolution before the House. Those who are not in favour will want to vote against when the Lord Chairman moves it. For those who are not sure once they have heard all the arguments, it would be possible to stick with our current overall approach, perhaps refined in some respects, and see how the proposals for a guaranteed regular slot for a topical debate and more debates in the Moses Room bed down. In the light of that experience, it would of course be open to those who still favour a Back-Bench debates committee to bring forward those proposals again.
I hope that I have set out some of the background, explained the proposals and highlighted the essence of the decision that we are being asked to take. I am sure that we will hear some powerful speeches. I look forward to us reaching a decision on this matter of principle, but most of all to being able to crack on in the new Session with the new opportunities for debate that I have identified.
Lord Peston
My Lords, I intervene as one of the more naive Members of your Lordships’ House. When I first heard of the proposal to set up a Back-Bench debates committee, particularly given its provenance, notably with the noble Lord, Lord Goodlad, I assumed that it would go through your Lordships’ House on the nod. I am astonished today to find that the Leader of the House, who, I do not have to remind your Lordships, is the Leader of the House and for these purposes not the leader of the Tory Members of the House, has not taken the lead in pressing for this committee.
Lord Hill of Oareford
There is just one thing that I want to make clear. I have been extremely keen to make progress. I think that the noble Lord, Lord Peston, implied that I am seeking to speak on behalf of the views of one party group. I should say to the House, and I should have said it before, that I know that there are a number of people in my party who are in favour of a Back-Bench debates committee. I also know that there are a number of members of his party, on the Cross-Benches and in all groups who have come to me expressing concerns about the idea of a Back-Bench debates committee. All I have sought to do is make sure that they have an opportunity to explore those issues and then the whole House can reach a decision.
Lord Peston
It is my dear wish, which I think is that of all noble Lords, that there should not be a party-political element to our debate. That is the point that I was trying to make. What was troubling me is that I did not hear the noble Lord say what he has now said: that that should not be the case. The debate needs to be judged on its merits.
Part of its merits is definitely the provenance of the committee. A committee chaired by the noble Lord, Lord Goodlad, is not some minor committee, not one that would not have deliberated fully, but one that would have come up with the right answer. That is the answer that the noble Lord, Lord Butler, has presented to your Lordships. I know that I do not have to repeat what the noble Lord, Lord Butler, has said. I have no interest in being on this committee. I have better things to do. I have no interest in being chairman of the committee, so I can speak openly.
What matters to me is that your Lordships should be using these slots for important debates. We have been reminded that they are pre-determined; there is no argument about the slots being there. We differ on what we regard as important. I have been waiting for someone to put forward a debate on the present crisis in economics, but my guess is that virtually no one will be interested in debating it. Perhaps that is why it has not come forward. Why do we not trust our own colleagues to be on a committee to which they will be elected by the different groups in the House? Why do we not trust them to come to the right answer in terms of both fundamentals and topicality? I am reminded of that great classic work, Microcosmographica Academica, where it is argued, basically in connection with the universities, that nothing should ever be done for the first time. I heard real echoes of that in the speech of the noble Lord the Leader of the House.
We really ought to make up our minds today, yes or no. We should not do it politically in any way whatever. We certainly should not do it either because we do not want to embarrass the Government, or because, when we are the Government, we do not want to be embarrassed. We want to use this time in a valuable way so that we can make contributions to the subjects and ensure that the subjects are worth making a contribution to.
If we divide, I will vote for setting up the committee. I know that I am an old fogey on this, but I would be much happier if we did not have a vote but just all agreed, as I implied, that we would accept this on the nod, because there are certain things where a vote is not the right thing. This House has a great tradition of sometimes just getting things right. I think that this is the right thing to do, and I very much hope that we do it.
Baroness Howarth of Breckland
My Lords, with due respect to the committee chaired by the noble Lord, Lord Goodlad, and as someone who does not usually speak on these issues, as a very ordinary Back- Bencher, I should like to make my views known. I fundamentally disagree with the previous speaker, because why should I, as an ordinary Back-Bencher, not be allowed to challenge the report by the committee chaired by the noble Lord, Lord Goodlad, or any other report? I expect to agree or disagree. Why should a group of Members from the Back-Benches select certain topics when we know that we all have our internal prejudices? It would be very difficult for some topics to get through those prejudices. What procedure would the Leader of the House put in place to ensure that, if we had this committee, no Member was open to lobbying by any external group to make sure that Members are free from any prejudice in the list? It is for those reasons that I felt that I had to get up to speak to, very unusually, disagree with my colleagues and very firmly—and this is not usual—agree with the Leader.
Lord Higgins
My Lords, I support the proposal for a Back-Bench committee. Indeed, I was one of those who put the suggestion to the Procedure Committee. I start by paying tribute to the former Leader of the House for establishing the working group on our working practices. He was sometimes accused of dragging his feet and not getting on, but we have made a number of improvements, although a number remain to be made, of which this is one, and I hope that we can make progress on it today. Secondly, I express appreciation to the present Leader of the House for the extra time that he is proposing we should have for Back-Bench debates, which is very important.
The noble Baroness, Lady Howarth, asked why we should go along with the Goodlad report. The answer is very simple: we should or should not go along with it on the basis of the arguments that were put forward on this issue. The letter that the noble Lord the Leader of the House has circulated strongly stresses that we should look at the situation and read the report of the Procedure Committee. I am sure that we should read the Procedure Committee report, but the report that we should be reading on this issue is the Goodlad report. The recommendations in this regard run to a full page and are supported by a number of paragraphs arguing in favour of such a committee.
The noble Lord, Lord Butler, set forward the case comprehensively. I do not wish to delay the House for long, but I shall refer to one personal experience of these matters. At the height of the first outbreak of the eurozone crisis, I sought to obtain a debate on the Floor of the House. It proved extremely difficult. I tried for week after week on a matter of major importance; meanwhile ballots were taking place on issues of relative unimportance. Eventually I managed to secure a debate in the Moses Room. The Motion was immediately hijacked by the Opposition, who added a second part to it, which was entirely partisan. The debate broke up completely in both directions and the real issue of the eurozone was barely debated. Had we had such a committee at the beginning of the crisis, we could have had what would have been, as always in your Lordships’ House, an expert debate. This is not going to happen with a ballot.
The reality is that the odds on the chance of getting a debate on a major issue as against some particular enthusiasm are not good. A large number of Members may have put in for the ballot and the odds are getting worse because there are more Members. Therefore, the chances of getting relevant, topical, important debates would be improved if we had someone, and a group of the kind suggested, who would be effective in bringing that about.
My noble friend asked a moment ago how the group would be selected. I am strongly in favour of its members being elected. That seems to me the obvious way of proceeding rather than by appointment or any other method. That should ensure that they are appropriately members of the committee and can then act in our interests as far as the overall picture is concerned.
Reference has been made to the situation in the House of Commons. Its Members are enthusiastic about the change that was made to their proceedings. Matters are never on all fours between one House and the other but I had the chance last night of speaking to Mr Bernard Jenkin, who happened to be involved in procedures in the other place and who is wildly enthusiastic about what has happened there. Perhaps that is overstating it; I am not sure that one is ever wildly enthusiastic about such matters. But he has not the slightest doubt that the change has meant that Back-Benchers have a greater influence on the matters that are debated and the priority given to them. That is what we ought to secure by this proposal and I hope very much indeed that we do, because I am frankly rather puzzled by the position that the Leader of the House has taken. I do not think that the present arrangement is working well and we ought to reform it.
Lord Filkin
My Lords, I will speak briefly, because I am sure that the House wishes to come to a conclusion on this quite rapidly. I was slightly troubled by the last thing that the noble Lord, Lord Higgins, said in his excellent speech, as it is almost guaranteed to ensure that the noble Lord, Lord Jenkin of Roding, will not now vote in support of the Motion. But you cannot have everything, can you?
The points are as follows. If we adopt the proposal on the Order Paper, we are much more likely to be able to have timely debates on issues that the public think are important and we will be seen to be relevant. That is important; it was one of the fundamental issues that the Goodlad report affirmed. Secondly, unlike in the Commons, these issues are not divisible. That is important for our traditions. The Government do not have to fear what they fear in the Commons—that you have a debate on some contentious issue leading to a headline story that the Lords voted X or Y. That would not happen and it is in keeping with our traditions that it should not. That ought to allow the Government and the coalition parties who are signatories to the letter to relax a little bit on this issue. Thirdly, the proposal makes no change to the existing procedure for QSDs. Those who are beloved of ballots will still be able to go in for ballots for a number of QSDs; that is going to continue. Finally, we all know that the Government can ensure that there is a debate on any issue that they judge to be topical and important whenever they wish to do so. Back-Benchers ought to be able to do the same.
Lord Brabazon of Tara
I welcome parts of this report, particularly paragraph 6, which gives us extra time for QSDs, but I am not so keen on this idea of a Back-Bench business committee. I know that it was proposed in the Goodlad report, but not everything in the Goodlad report was gospel. I well remember bringing the first half dozen proposals from the Goodlad report to the Floor of the House when I occupied the position of Chairman of Committees; three of them were voted straight out. So I am not certain one should use that as an argument for the goodness of this suggestion.
I make the point, as have other noble Lords, that balloted debates are the only chance that some noble Lords have of getting their subjects debated. Will this new committee have to give reasons for its decisions? Would it deliberate in public? How does it intend to fulfil its remit, in paragraph 10, to “add transparency and accountability”? I assume that the committee would be set up in much the same way as are most of the other committees in this House. Whether it is elected or appointed, it would still have party balance. Like, I am sure, all committees in this House with party balance, it would tend to rotate the debate subjects around the various parties. I am not quite sure why it would operate in a different way from the existing party debate days, which will continue.
I welcome the proposals in the Leader’s section—option 2 in the report. I welcome the idea of not rolling over debates from one to another, so that you hopefully get a slightly lower number of two-and-a-half-hour balloted debates on the Order Paper at any one time. I agree that there should be an element of cross-party support for the particular subject. I make one further suggestion, which is that the present two and a half hours for each balloted debate—five hours in total—should not rigidly be divided at two and a half hours each. If we were to have a situation where there were more speakers in one debate than in the other, the list might have to close slightly earlier but one debate might get, say, three hours and the other only two. I wonder if the Procedure Committee might look at that proposal.
Lord Barnett
My Lords, my naive noble friend Lord Peston and the Leader of the House may inadvertently have been misleading us in talking about this Back-Bench committee. Like the noble Baroness, I have my doubts about it, but let us be clear that we are talking about experiment here, not an established Select Committee. If anybody reads this report, they will see that we are talking about a temporary committee. I support this strongly, to see how it will work. I am by no means certain. I am as uncertain as I am about economic forecasts; as the Office for Budget Responsibility says, they are usually uncertain.
I am pleased to hear how much the Leader of the House wishes to see more time available for Back-Benchers to hold the Government to account. We still do not know when we are ceasing to sit for Prorogation, or why we had an extra week off for Easter. We could have had a lot of Back-Bench time in that week. We could have more next week. Perhaps the Leader of the House, if he eventually gets up again, might tell us why we were prevented from having some time available then, if he so wishes to hold the Government to account.
If we are talking about the establishment and holding it to account, the noble Lord, Lord Butler, is probably more a member of the old establishment than anybody else in your Lordships’ House. I make it clear that when I was part of that establishment, during my five years as Chief Secretary, I very much welcomed the views of the noble Lord, which were always good to hear even if I did not agree with them. The noble Lord was well worth listening to. Perhaps I should also make it clear, as others have done, that I certainly have no wish to be a member of this special committee, although I do not rule out making representations to it—that is for sure.
I hope that the House will agree to set this committee up on a temporary basis to see how it works. That is all that we are being asked to do. I hope that the House will agree even to take it on the nod. Let us have this settled once and for all. That is all that we are asking.
Lord Maclennan of Rogart
My Lords, I indicate my appreciation to the Leader of the House for the steps he has proposed to enable Back-Benchers to have greater vocality and greater audience in this place. His proposals have moved us a considerable step forward. The noble Lord, Lord Butler, has made a very strong case, and I do not wish to go over all that again. However, I want to take up an issue—and I say this as a member of the previous Leader’s Group on Working Practices—that was raised by the Leader of the House, the noble Lord, Lord Hill of Oareford, in his letter of 22 April, in which he recognised that our procedures could be improved and that we could make reforms,
“to ensure that debates drawn by ballot command sufficient interest in the House”.
There are a number of other considerations that should properly be taken into account as well as interest in the House. Is the noble Lord really suggesting that that exercise should be conducted by the clerks or not? If not, why does he not look at the five criteria which the committee of the noble Lord, Lord Goodlad, recommended that the Back-Bench committee on debates apply? The five criteria, which were specifically spelt out, were that the subjects for debate should be varied, timely, and address issues which are either topical or of long-term national importance, and that the debates should draw upon the knowledge and experience of Members of the House. These are important criteria, and it would not be appropriate to ask anyone other than the Members of this House to seek to apply them. I therefore support the concept of setting up this committee for a period of time to see how it works.
The Earl of Clancarty
My Lords, I do not support the proposal for a Back-Bench committee for debates. There will inevitably be a tendency towards safer, more mainstream and more predictable debates and a decrease in the breadth of debate—of issues discussed in this House—something for which this House is known. I say to the noble Lord, Lord Butler, that having only a few people speak in the debate does not necessarily say anything about the quality of that debate, which may be very high. I certainly support staying with the balloting procedure.
Lord Elton
My Lords, I always regard things which are commended because they work well in the House of Commons with a certain degree of suspicion. I urge your Lordships to do the same for a very good reason. The pressures that Back-Benchers cope with in the other place are quite different from the pressures that we are coping with here. They do not have tenure, but we do. Their tenure is dependent in part on the power of the Whips to deselect, so the positions of the two Houses in the competition with the Crown for power, which is what this is all about, are quite different. A Back-Bench committee with command of some time in the House of Commons is a very large step forward. A Back-Bench committee here, for the reasons which have just been very adequately voiced by the noble Earl, is a step backwards, and I hope we do not take it.
Lord Grenfell
My Lords, I would like to be very brief. I have just three small points; or rather, they are not small, but I will try to put them briefly. Before I do so, I should say that I found the argument of the noble Lord, Lord Butler of Brockwell, very strong and, certainly for me, very convincing.
First, I want to take up what the noble Earl, Lord Clancarty, just said, which was reflected by the noble Lord, Lord Elton, and a number of other noble Lords. It seems to suggest that a Back-Bench Committee would be devoid of all sympathy for the more esoteric topics that might need to be debated. I think it is rather insulting towards Back-Benchers to suggest that they might not be interested in topics which are rather unusual but personally important to the people proposing them.
The noble Lord the Leader of the House is wedded to the word “balloting”. I am very glad that the noble Lord, Lord Tyler, has once again said—as I have done before—that we should not be using the word ballot in relation to the present system. It is a lucky dip. If you want a ballot then you should be supporting a Back- Bench committee because such a democratically elected committee, working on democratic principles, would be deciding on what debates should take place by balloting within the committee. That is where you get the ballot. So let us not confuse balloting with lucky dips; that is the present system and I find it quite extraordinary.
Finally, I think the case the noble Lord the Leader of the House has made falls flat when we come to paragraph 14 in the report, when he says that all Back-Benchers must,
“have an equal chance of securing time to debate issues of concern to them, without having to secure the approval of their peers”.
Peer approval is one of the cornerstones of a self-regulating House and I strongly believe that there is a case for setting up a committee where democratically elected Back-Benchers can decide and make proposals as to what they think it is in the broad interests of the House as a whole to listen to when debate slots are available. I know we have a topical debate period but it is very important that a Back-Bench committee should be sensitive to both the more specialised issues that some would want to debate—and they would be taken into consideration—and also to the broader interests of the House. This is to make sure that highly important issues do not go by the board because a lucky dip has decided that they have no place in the debating Chamber.
Lord Cormack
My Lords, the noble Lord, Lord Grenfell, is right in what he says. We are only asking for a very modest proposal to be accepted by the House. We are asking for an experimental period of one parliamentary Session. We are not suggesting that, during that period, the present system should be completely abandoned. So the House will have the opportunity, as a self-regulating House, to look at the two systems working side by side.
In answer to my noble friend Lord Forsyth of Drumlean, of course there should be a form of election for this committee. I would favour the various groups— the Labour group, the Cross-Benchers, the Bishops—nominating members to sit on this committee. That would be a tidy and sensible way of doing it. The committee would then have the opportunity to listen to the proposals put to it.
It is nonsense that we have had grave international situations that have not been debated in this House. We had to wait ages for the Arab spring debate. My noble friend Lord Higgins talked about the euro crisis. If this House, to use the words of the noble Lord, Lord Filkin, is to be truly relevant to our nation and to its problems, it has to have the opportunity, in a timely and opportune manner, to debate the issues that are concerning people. Occasionally, these may be esoteric: I do not believe that a properly constituted Back-Bench committee would choose only grand international events to debate. Of course it should not, and I believe it would not. However, I do think we should give it a chance. We are a self-regulating House; let us regulate ourselves in this way in accordance with the recommendations of the Goodlad committee.
The greatest thing about this House, in my experience, is that it is collegiate in a way that the other place is not. We sit together on the Long Table and talk. We are not talking about debates that will end in votes. Let us discuss where we should focus our attention. Let us see how this group of colleagues works together. If at the end of the year the committee has not produced the goods, we will abandon the experiment. I do not believe that if you start an experiment you have to continue it in perpetuity; of course you do not. An experiment is an experiment, and I beg the House to give this one a chance.
Lord Richard
Perhaps I may detain your Lordships for just two minutes. I am in the very unusual position of agreeing with the noble Lord, Lord Cormack. It is not something that happens daily in this House, and it certainly did not happen over reform of your Lordships’ House. However, I am bound to say that I came to this debate in a wholly neutral frame of mind. I was not sure whether I liked the idea or whether I did not. One argument seems to be absolutely critical, and for me conclusive. When I was Leader of the Opposition in this House, when I was Leader of the House and indeed since, it struck me—as I suspect it has struck every other Leader—that the one great gap in our procedures is that one cannot raise an urgent issue. It is almost impossible. If one wants to secure a debate in this House on an issue such as the Arab spring or North Korea’s nuclear policy, unless the Government are prepared to give it time, one cannot get it. That is wrong. A parliamentary assembly ought to have a procedure whereby issues that are clearly urgent and topical are capable of being discussed. That gap is partially—only partially—filled by the proposals for this experiment. For me that is the conclusive argument. It fills a gap in the procedures of our House that has existed for many years, and we would then be in a position, like other parliamentary assemblies, to deal with urgent, topical questions, which at the moment we are not.
Lord Wakeham
I will say a word or two because I was the Leader of the House when the noble Lord was the Leader of the Opposition. I listened to my noble friend putting forward a housemaid’s baby-type argument; we will have a little experiment and it will be all right. I also listened to the noble Lord, Lord Grenfell. I have no doubt that if he was in charge of all this, it would work very well whatever the rules because he is that sort of person and he would make sure that it did. However, I am still worried about the central proposition that a Back-Bench committee should be able to decide which Back-Bench topics should be debated. The committee will come under enormous pressure and a great deal of lobbying. Inevitably it will end up, in order to keep the peace, taking on the big issues and leaving some of the smaller issues to one side. That is what worries me. Of course I accept the argument that we have to have more topical debates, but I am not sure that a Members’ Back-Bench committee is the way to do it. I would prefer it if we found another way. Therefore, I will vote against the experiment.
Lord Kakkar
My Lords, perhaps I may ask the Leader whether any thought has been given to the objective criteria that will be applied to the experiment to determine finally whether it has been successful or not. There is a lot of talk about this being an experiment, but at the outset it is vital to determine how we are going to judge whether it has been successful when we come to re-evaluate it.
Baroness Hamwee
My Lords, most of what I wanted to say has been said. However, on behalf of myself and my noble friend Lady Tyler of Enfield, who cannot be here because she is unwell, I must at least put the points on which we agree as two of the signatories to the paper that was referred to. One is the importance of capturing the public mood, which is another way of saying that there are important things that we may miss out on debating in a timely manner. I, for one, do not want to ignore any chance to increase this House’s standing with the public. The other point is Back-Bench ownership of debates which, as she put it to me, is very much in the spirit of self-regulation of the House, as indeed would be the election of the members of such a group.
I will confine myself to one other point, which concerns the criteria. As has been said, this concerns a small number of occasions. Whoever takes the decisions about what is to be debated on these very few occasions, I understand that for balloted Questions the applicant must convince the clerks that the subject of a proposed topical Question is indeed topical. That may be relatively straightforward. However, the other characteristics—which include quirkiness, for which I have great enthusiasm— are much harder to deal with. I am sorry we cannot include the clerks in this debate and hear their views on how they would deal with that. It would not be a ballot; it would indeed be a lottery. To those of us who have been involved in the democratic process, as we all have, a ballot means putting something to the vote. We are talking about the distinction between the procedure going through the proposed, and a lottery or chance. I for one hope that the House will support a trial arrangement.
Lord Wills
My Lords, my arguments against the current procedures have been well rehearsed, and the case for change has been well made. I do not intend to repeat any of them now. If this is put to a vote I shall vote in support of the proposal.
As the noble Lord, Lord Cormack, stressed repeatedly, this is an experiment. It seems to me that the success of the experiment depends crucially on the criteria that the committee will apply, and how it will apply them. That is crucial. What exactly are the criteria going to be? What weight will be given to each of them? Will the committee have a remit, for example, to ensure that all the criteria are met over the period of the experiment, or only some of them? How many of the separate criteria will have to be met at any given time? If a topic meets more than one criteria, how will one topic be favoured over another? What weight will be given to each of the criteria? All these issues go towards whether this experiment will be perceived as fair and objective, and as an improvement on the current process. I very much hope that if this moves forward, as I hope it will, these questions will be addressed as we make progress on this issue.
Lord Forsyth of Drumlean
My Lords, as I said when I intervened in the speech of the noble Lord, Lord Butler, for me the crucial thing is that this committee should be elected. If people are standing for election to this committee whom we do not think would take a balanced view on the quirky topic and the large topic, then do not vote for them. Surely within this House we are grown-up enough and experienced enough to realise the importance of maintaining a balance in what we do, and can trust our colleagues. The alternative is a Charlie and the Chocolate Factory situation, where you have to wait to get the golden ticket to have your chance to put forward your debates. It has been said that colleagues are going to be lobbying—of course they are, but we lobby our Front-Benchers all the time. Surely all of us are grown-up enough to be able to survive the experience of a bit of lobbying. I support this proposal because it is about strengthening Parliament, and it is by strengthening Parliament that we will increase the respect and standing of Parliament outside.
I think it was my noble friend Lord Higgins who talked about us having tenure. I do not think we have tenure in this House. This House has to prove itself every day in the eyes of the public; I think it does a brilliant job. This measure is at least worth trying, because it could strengthen Parliament, increase our ability to hold the Executive to account, and be seen to be relevant to the interests of those outside who, after all, pay the bills.
Lord Sutherland of Houndwood
My Lords, I have three points: first, if there is to be a committee it must be elected. There are no doubts about that. Secondly, a major gap has been identified in this debate, and that is the capacity of this House to identify major topics of current concern and debate them urgently. There has to be a way of doing that, whatever comes out of this debate, and I put it to the Leader of the House that he must look at that. Thirdly, we should not vote to have another committee on the basis that this is an experiment. Any committee that I have ever seen that people have tried to kill has been cut in half and then there are two new ones.
Baroness Thomas of Winchester
In general, I am in favour of progress, modernisation and change, but I am not in favour of a Back-Bench debates committee at this point because it is unnecessary in view of the Leader’s proposal. In the light of that proposal, a Back-Bench debates committee would be a huge sledgehammer to crack a tiny nut. It could easily turn into a bureaucratic and expensive procedure, if full accountability was desired. One just has to think about it. Peers tabling subjects for topical QSDs would have to give reasons in papers or e-mails, and signatures of support would be sought. Minutes of the committee would have to be prepared; all conflicts of interest, not just financial, would have to be declared; and all lobbying, either ignored or debated, would have to be declared. A clerk would be required, plus an assistant to prepare papers. The committee would not be cheap and, if there is capacity for another committee, I would much rather the money was spent on more pre-legislative or post-legislative scrutiny.
As for transparency, the government Whips’ Office has given a very clear and welcome explanation of how debates and QSDs get on to the Order Paper. As for balloted debates, what is more transparent than pure chance, with all Peers having as good a chance as each other of having their subject debated? Do we really want to go down the road of having a group of our fellow Peers deciding which debates are more important than others? Why do we not give the Leader’s proposals a trial and, if there is dissatisfaction after that, come back to the idea of a Back-Bench debates committee?
The Chairman of Committees
My Lords, we have had a good and thorough debate, and I believe that all the possible arguments have been aired. At this stage, I beg to move that this House takes note of the sixth report of the Procedure Committee. After that, we get to the substantive Motion on the decision.
Procedure of the House
17:37 - Division on Motion to resolve. - Ayes: 209 / Noes: 243 - Motion disagreed.
The Chairman of Committees
To resolve that this House establish, for the duration of the 2013–14 Session of Parliament, a Backbench Debates Committee;
That the Committee be appointed to schedule debates, to be moved by backbench and Crossbench members, or by Lords Spiritual:
During the time currently set aside for balloted debates;
On at least one day in Grand Committee for every six sitting weeks in the session;
That the Committee schedule a one-hour topical Question for Short Debate each week, from the start of the session until the end of January, to be taken on Thursday between the two time-limited debates;
That the Procedure Committee review and report on the work of the Backbench Debates Committee before the end of the 2013–14 session, with a view to recommending whether or not the Backbench Debates Committee should be established as a sessional select committee.
Marine Navigation (No. 2) Bill
Growth and Infrastructure Bill
19:18 - Division on Motion A1. - Ayes: 168 / Noes: 275 - Motion A1 disagreed.
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 25 for the following Reason—
Lords insistence and reason
The Lords insist on their Amendment No. 25 for the following Reason—
Commons insistence and amendments to words so restored to the Bill
The Commons insist on their disagreement to Lords Amendment No. 25 but propose the following amendments to the words restored to the Bill by that disagreement—
“(ca) the company gives the individual a written statement of the particulars of the status of employee shareholder and of the rights which attach to the shares referred to in paragraph (b) (“the employee shares”) (see subsection (4A)),”
“(4A) The statement referred to in subsection (1)(ca) must—
(a) state that, as an employee shareholder, the individual would not have the rights specified in subsection (2),
(b) specify the notice periods that would apply in the individual’s case as a result of subsections (3) and (4),
(c) state whether any voting rights attach to the employee shares,
(d) state whether the employee shares carry any rights to dividends,
(e) state whether the employee shares would, if the company were wound up, confer any rights to participate in the distribution of any surplus assets,
(f) if the company has more than one class of shares and any of the rights referred to in paragraphs (c) to (e) attach to the employee shares, explain how those rights differ from the equivalent rights that attach to the shares in the largest class (or next largest class if the class which includes the employee shares is the largest),
(g) state whether the employee shares are redeemable and, if they are, at whose option,
(h) state whether there are any restrictions on the transferability of the employee shares and, if there are, what those restrictions are,
(i) state whether any of the requirements of sections 561 and 562 of the Companies Act 2006 are excluded in the case of the employee shares (existing shareholders’ right of pre-emption), and
(j) state whether the employee shares are subject to drag-along rights or tag-along rights and, if they are, explain the effect of the shares being so subject.”
“( ) Where a company makes an offer to an individual for the individual to become an employee shareholder, an acceptance by the individual of the offer is of no effect unless seven days have passed since the day on which the offer was made.”
““drag-along rights”, in relation to shares in a company, means the right of the holders of a majority of the shares, where they are selling their shares, to require the holders of the minority to sell theirs;””
““tag-along rights”, in relation to shares in a company, means the right of the holders of a minority of the shares to sell their shares, where the holders of the majority are selling theirs, on the same terms as those on which the holders of the majority are doing so”
Viscount Younger of Leckie
That this House do not insist on its Amendment 25, to which the Commons have disagreed for their Reason 25A, do agree with the Commons in their Amendments 25C, 25D, 25F and 25G to the words restored to the Bill by that disagreement, and do disagree with the Commons in their Amendment 25E to the words so restored but do propose the following Amendments in lieu—
“( ) Agreement between a company and an individual that the individual is to become an employee shareholder is of no effect unless, before the agreement is made—
(a) the individual, having been given the statement referred to in subsection (1)(ca), receives advice from a relevant independent adviser as to the terms and effect of the proposed agreement, and
(b) seven days have passed since the day on which the individual receives the advice.
( ) Any reasonable costs incurred by the individual in obtaining the advice (whether or not the individual becomes an employee shareholder) which would, but for this subsection, have to be met by the individual are instead to be met by the company.”
““relevant independent adviser” has the meaning that it has for the purposes of section 203(3)(c);”
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie)
My Lords, after a touch of verbal Houdini in reading out the Motion, I hope that I can offer some clarity to the contents of the clause. Before I discuss the clause in further detail, I am grateful to those noble Lords who met me earlier today. I draw the House’s attention to a further amendment that we tabled this afternoon, which I hope will provide reassurance to the House.
We believe that it should be up to employers to recruit as they see fit, and if a company wants to recruit an employee shareholder, in the same way as an employer may wish to recruit an employee or a worker, it should be able to do so. As has been made clear, no one will be compelled to apply for or accept an employee shareholder job.
I turn to the clause itself. I remind the House of my remarks on 22 April. In that debate, I stated that I had listened to and heard the strength of feeling in the House towards this clause. I also stated that if the House insisted on its amendment to remove the clause, as indeed was the case, I would ensure that the strength of feeling would be conveyed to my ministerial colleagues. I have conveyed the strength of feeling expressed by this House, and I now turn to the amendments laid today and how we believe they improve the clause and address key concerns expressed by the House.
The package of amendments ensures that individuals entering into employee shareholder status are given the opportunity to fully understand the employee shareholder contract, the benefits and the risks involved. The package ensures that the individual will have the space, the time and the means to receive and weigh up the information in order to make an informed decision that is right for them.
First, we propose that the company must give the individual a written statement of particulars setting out the employment rights that are not associated with this status, and detailing the rights, restrictions and other conditions attached to the shares. This will include whether the shares being provided as part of the employee shareholder status have any voting or dividend rights; whether there are rights to have the shares bought back or redeemed; whether an individual may freely sell the shares; and if there are certain other rights and restrictions attached.
This written statement of employee shareholder particulars is separate to that already required by the Employment Rights Act 1996, which sets out the terms and conditions of the job, and which employee shareholders are entitled to receive within two months of starting work with their employer.
Most importantly, once the statement of particulars has been given to the individual, he must then receive legal advice. This advice can be given by a solicitor, a barrister, a fellow of the Institute of Legal Executives employed by a solicitor’s practice, a certified trade union official or a certified adviser in an advice centre. A person employed by the company, such as in-house counsel, cannot give this advice. It must be independent.
Some advice may be free, such as from a trade union official or an advice centre. Where payment must be made for the legal advice, the company must meet the reasonable costs of that advice. This is the case even if the individual does not take up the job offer. Once the legal advice has been received, the individual has seven clear calendar days to consider that advice. Any acceptance by the individual of an employee shareholder contract is of no legal effect until those seven days have elapsed.
This is about giving the individual the space to consider their position. It gives them time.
Lord Burnett
Will my noble friend assure the House that no advice should be given to an employee by the law firm or firms acting for the company itself or any other law firm connected with the company?
Viscount Younger of Leckie
My noble friend makes an excellent point. That is absolutely true. I can confirm that if any legal firms are connected at all with the employer seeking to employ the employee shareholder, they will not be permitted to give legal advice.
Returning to the individuals, as I was saying, it gives them time not to be pressurised into accepting a contract and an opportunity to think about what the contract will mean to them. An individual cannot become an employee shareholder unless this and all the other criteria set out in the clause are met. This package of amendments means that an individual who has chosen to apply for and been offered an employee shareholder job has the information, advice and time that they need to consider whether the job is right for them.
I now turn to the amendment tabled today by the noble Lord, Lord Lea of Crondall. We do not believe that such provision within the clause is necessary. We believe that it should be up to employers to recruit as they see fit, and if companies want to recruit an employee shareholder, as they already do for employees or workers, they should be able to do so.
I take a moment to clarify points that have been raised repeatedly in both Houses. In the debates about this clause, it has been stated that the shares issued to the individual could be worthless. I should like to make it absolutely clear that shares issued as part of the employee shareholder status must be worth at least £2,000. The shares must be fully paid up by the employer and the clause also prevents the individual paying for them.
I understand the concerns raised by my noble friend Lord Forsyth in relation to valuing shares. As I have made clear previously, established practices are in place that cover this. Let me repeat, we recognise that for private companies there is no traded market which enables easy valuation of shares. Private company shares are valued for many different reasons—for example, when someone leaves the company and wants to sell shares, or following the death of a shareholder or if the company is to be sold. Practitioners such as actuaries and accountants undertake this work using standard methods to reach a valuation. They will consider such things as examining the company’s performance and financial status as shown in its accounts for a period up to the date of valuation. They may also consider future plans of the company, by looking at order books and analysing future commitments.
If a private company is considering issuing new shares as part of an employee shareholder scheme, it will probably be taking advice from its accountant, who will be able to advise on how best to value the shares to be issued. In this case, the company will be able to demonstrate how the valuation has been made to the individual. In addition, I reassure the House that we will not allow individuals to use this employment status for tax avoidance.
The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)
I should inform the House that if Amendment A1 is agreed to, I shall not be able to call Amendment A2 by reason of pre-emption.
Motion A1
Lord Pannick
As an amendment to Motion A, leave out from “House” to end and insert “do insist on their Amendment 25 to which the Commons have disagreed and do disagree with the Commons in their Amendments 25C to 25G in lieu thereof”.
Lord Pannick
My Lords, I am very pleased that the Government have proposed the amendment in lieu in order to impose a requirement for independent advice. I thank the Minister warmly for his efforts in securing this substantial amendment.
For many noble Lords, the absence of a requirement for independent advice was a fundamental defect in Clause 27. Indeed, the absence of such a provision until the 11th hour—in fact, way past the 11th hour—was quite incomprehensible to many noble Lords. As was painfully clear from our debate on Monday night, the Government had no answer, and never have had an answer, to the question of why they are refusing to require independent advice before an employee signs away employment rights when Parliament has required independent advice before a compromise agreement is reached in tribunal proceedings in an individual case concerning the exercise of employment rights. Because this amendment is designed to protect the individual who is being invited to sign away basic employment rights, it is appropriate that the provision should be comprehensive in the protection it confers. For my part, I am satisfied that this amendment is comprehensive.
I should like to draw attention to four aspects of the amendment. First, I note that a Clause 27 agreement will be of no effect unless the employee or prospective employee has received independent advice before the agreement is made. It will not be sufficient that independent advice is available or is offered; it must be received. Unless independent advice is received, the Clause 27 agreement has no effect in removing employment rights.
Secondly, the individual must receive advice as to,
“the terms and effect of the proposed agreement”.
The amendment plainly requires advice on the nature and effect of the employment rights that are lost. It also plainly requires advice on the content of the employment rights that are retained, such as discrimination law rights. However, advice will also be required on the terms and the effect of the shareholding aspect of the agreement. Indeed, the amendment is expressly linked to the statement that the employee must receive by reason of subsection (1)(ca), as set out in Amendments 25C and 25D. That means that the statement must—that is the word used in the subsection—address matters that include,
“whether any voting rights attach to the employee shares … whether the employee shares carry any rights to dividends … whether the employee shares would, if the company were wound up, confer any rights to participate in the distribution of any surplus assets … whether the employee shares are redeemable and, if they are, at whose option … whether there are any restrictions on the transferability of the employee shares and, if there are, what those restrictions are … whether any of the requirements … of the Companies Act 2006 are excluded in the case of employee shares”—
that is, the right of pre-emption—and,
“whether the employee shares are subject”—
the Minister may know what this means; I certainly do not—
“to drag-along rights or tag-along rights and, if they are, explain the effect of the shares being so subject”.
All these matters must be included in the statement and the advice is linked to the statement. It therefore appears very clear indeed that any employee entering into one of these agreements must receive legal advice on each and every one of these technical matters, otherwise the agreement is simply not going to have legal effect. The employer will need to ensure that advice is given on these matters, otherwise the agreement will not be valid.
Lord Burnett
I am most grateful to the noble Lord, Lord Pannick, particularly for all his efforts in relation to this matter. Regarding the matters that he listed, I wonder whether he has considered one further condition that should be added. The valuation of close company or private company shares is an art, not a science, and the valuer acting for the shareholder—the outgoing shareholder perhaps—and the valuer acting for the company may not reach an agreement on price. Presumably, underlying all this must be a provision for arbitration in case of disagreement on price, through either an independent expert or an arbitrator.
Lord Pannick
I would anticipate that when the employee is given advice, one of the terms and effects of the agreement in relation to which he will need to be given advice is as to what happens if and when the shares are to be sold or the company goes into liquidation. No doubt some advice will have to be given—I doubt in very great detail—as to what the mechanisms are. In any event, this is, as I say, a very extensive requirement for legal advice. These are very complex matters.
The third point I want to emphasise is that the amendment also specifies the identity and characteristics of the person giving the advice. It does so by incorporating the requirements in Section 203(3A) and (3B) of the Employment Rights Act 1996, which states who is an “independent adviser” for the purposes of Section 203(3). The categories are: “a qualified lawyer”; a person certified by,
“an independent trade union … as competent to give advice”,
in this context; an advice centre worker,
“certified … by the centre as competent to give advice”,
in this context; and a category of,
“a person of a description specified in an order made by the Secretary of State”.
The statutory requirements also state that the adviser must be independent of the employer. Again, I am grateful to the Minister for the assurance that he gave earlier in this debate in relation to the criterion of independence.
I am very doubtful indeed that any trade union or advice centre would wish to certify someone as competent to give advice on all the aspects of the terms and effects of the agreement which I have mentioned. My understanding—I should be grateful if the Minister could confirm this in due course—is that it is entirely a matter for the employee as regards from whom he or she seeks the legal advice. Given the complexity of the matters on which advice must be given, I cannot imagine that any sensible employee would choose to see other than a lawyer and I would be astonished if any trade union or advice centre gave advice to any employee not to go and see a lawyer on these matters.
The fourth point I want to emphasise in relation to this extensive amendment, which I welcome, is that the reasonable costs of the advice otherwise incurred by the individual must be met by the company. What costs are reasonable must of course be determined in the context of the breadth and complexity of the advice which needs to be given. The employer must pay the costs, so the amendment says, even if the employee or prospective employee decides not to take up the job offer on Clause 27 terms. I should also be grateful if the Minister would confirm my understanding that if necessary—it may not be necessary—the Treasury will bring forward legislation to ensure that the benefit of the legal advice is not treated as a taxable benefit in the hands of the employee.
Lord Forsyth of Drumlean
My Lords, I pay tribute to my noble friend Lord Younger and to the Chancellor of the Exchequer. We have had some pretty robust debates around this. We started with the proposition that it was wrong that someone who was sent from a jobcentre to take a job but who declined to accept an employee shareholder contract could be found to be intentionally not taking work and therefore be subject to sanctions on their benefits. That was dealt with. On the fundamental point, I do not wish to repeat the arguments which the noble Lord, Lord Pannick, has made, although I will observe that it is a relief to me to discover that there is something that he does not know about and which I do: the drag-along rights. It strikes me that drag-along rights are quite a good way of describing the process of this Bill in respect of the Government.
However, we have eventually got there, and the most important thing, as the speech of the noble Lord, Lord Pannick, indicated, is that this can be an extremely complex and difficult area and that we are making a fundamental change of principle here in that people can negotiate away certain employment rights. The need for independent advice is therefore crucial, and I am delighted by the amendment which my noble friend has brought before us. I pay tribute to the long-suffering officials in the Treasury and BIS for the way in which they have produced an amendment that covers the ground completely. My first instinct when I heard that the Chancellor had decided to accept our arguments was to rush to the Public Bill Office to get the draft of it, thinking that it would be full of holes or weasel words. Actually, it is comprehensive and the Government have been as good as their word. They deserve credit for that.
The last remaining area of concern was that this would be used by my friends in the British Venture Capital Association and others as a way of limiting their capital gains tax on shares which they would otherwise have got, and on which they would have to pay capital gains tax, by changing their employment status to that of shareholder employee. The loss of statutory redundancy pay would not be a major factor in their minds. I very much welcome what my noble friend said about the determination to look at this.
The noble Lord, Lord Pannick, made the key point that the advice provided to someone who is considering an employee shareholder contract should be paid for by the employer but that the tax liability that would normally arise from that would not apply. I guess that the Finance Bill currently before the other place will need to be amended. It already makes provision for the £2,000 of shares not to be subject to tax and national insurance. I assume that it will be amended to provide for the money that is paid for advice by the employer for the employee not to be a taxable benefit. I hope in the time that remains that in considering the various wheezes that might be used to avoid tax the Finance Bill will be amended to close off any possible loopholes.
I entirely support what my right honourable friend the Chancellor of the Exchequer was trying to do with this clause. He was trying to encourage more people to take stakes in their business and therefore to have an interest in the success of the business and an understanding of the risks being taken by it. He was also trying to encourage new emerging businesses, which may or may not have a future and may or may not have very much cash, to take on employees who share in the risks of that business. That is a noble and good intention. Equally, on the other side, there is a desire to limit the costs that fall on employers because of employment protection legislation, and there is a fair balance to be had there.
The combination of the two in this particular recipe produced a dish that was hard to digest, which is why we have sent the legislation back to the Commons on two occasions. On that latter point, although we may have reservations about the applicability of the clause and whether it is the best way forward, we should recognise that this House has done its job in asking the Commons, the Government, to reconsider. At the end of the day it is for the elected House, the other place, to decide on the general drift of policy that is being pursued by the Government.
I thank my noble friend and will have no difficulty whatever in supporting the passage of this Bill with the clause as amended. I look forward to seeing the measures that will be brought forward to avoid a measure that has good intentions being used for another purpose that might very well damage the credibility not just of this clause but of the Government, who deserve credit for what they have been trying to do even if this House had some difficulties with the practical execution of the proposed policy.
Baroness Turner of Camden
My Lords, I also agree that substantial concessions have been made, which have been spelt out by the noble Lord. On the other hand, the basic problem still exists in my mind. There are already co-partnership schemes through which employees can have shares and can participate in their companies. However, they can do so in many instances without surrendering important employment rights. That is the important thing. Why do you have to surrender employment rights, which have been in existence for many years and have been struggled for by previous generations, to participate in a shareholding scheme? I do not understand that unless this really is, as I originally believed, one of the moves that the Government are making, as they do not like employment rights all that much, to ensure that employment rights are surrendered without appearing to remove them. Employees can be persuaded, under these arrangements, to give up employment rights voluntarily in return for a shareholding scheme.
I still feel very unhappy about this. Unions will not be happy about it either. The basic point here is the surrender of rights in return for shareholding. I still do not think it is appropriate. Shareholding schemes can exist without that and do exist in many places. For those reasons, I express great concern, although I understand that quite substantial concessions have been made. The core problem, as far as I can see, is the surrender of employment rights for something that may be quite worthless when it really comes to it.
Lord Bilimoria
I appreciate that the Government have made several concessions in trying their best, as has been explained, to make sure that this is not compulsory and has not been forced on people. It is another option to add to the several share option schemes that already exist. The huge issue, as the noble Baroness has just said, is why it has to be linked to giving up any employment rights. That is the part that is fundamentally unnecessary.
The last time we debated this, before it went to the other place, I asked the Minister two questions, which he did not answer. The first was whether the Government consulted business properly before going ahead with this. The noble Lord, Lord Adonis, said in his closing speech last time, if I remember correctly, that 160 responses were received when the Government consulted and only three of them were in favour of this scheme. I am sorry, but unless I have got something fundamentally wrong, if you get three out of 160 you do not go ahead with something. You either consult further or you bin the idea because it is no good.
We have heard unanimously all round the House that, from a businessman’s point of view, this does not sense. It is absolutely unnecessary to do this, and it is fundamentally wrong for me to ask any of my employees to give up any rights at all. I would want to give them share options because they believe in my business and its future and they will earn the increase in value of their share options.
The next question I asked the Minister was whose idea it was. Why are the Government pursuing this? This House is greatly respected. We defeated this. It went to the other place. It came back, and the last time we voted on it it was defeated by an even bigger majority. To go back and come back again is disrespectful to this House and to what we have done. I appreciate that concessions have been made, but I think that the Government defending it so much is linked to whose idea it is. The press say that it is the Chancellor’s idea. If it is, I really question his priorities in trying to push forward something like this when tomorrow it is quite possible that we will hear that we may be in a triple-dip recession, and if not we might certainly bump along the bottom for ever.
We have huge problems and we are trying to push something like this on to business. I can guarantee that it will not work, that it will not be taken up by business, that it has wasted a lot of parliamentary time and that it will waste a lot of legislation. The Government say that they will reduce red tape. This is going to create huge amounts of red tape. Lawyers will have to be consulted; employers will have to compensate for lawyers being consulted. This is not just a dog’s breakfast; it is a mad dog’s breakfast.
Lord Myners
My Lords, I disagree with one of the comments made by the noble Lord, Lord Bilimoria. I think this will be a very popular scheme for employees and employers, but in only one small sector of the economy. This is not about creating employment, business and economic growth. SMEs and new innovative companies are not going to offer these schemes, and employers are not going to be attracted by them. When we last discussed this issue, the noble Lord, Lord Forsyth of Drumlean, said that he was not sure whether this was being looked at by people who plan tax avoidance. I assure him that it is being looked at by those people with alacrity.
Lord Forsyth of Drumlean
I defer to the noble Lord’s expertise in tax avoidance and the ways of investment bankers and investment management people in the City, but will he not give some credit to my noble friend who said that the Treasury will look at this and consider whether further measures are needed to avoid this? Some of the obvious possibilities, such as multiple contracts or changing contracts for the purposes of gaining the capital gains tax exemption, are matters that could be looked at. Surely the noble Lord should give some credit to my noble friend for taking that on board.
Lord Myners
The question is whether we give credit to the noble Lord’s noble friend or to your Lordships’ House. I think it is the latter that deserves credit for the improvement in this provision. We will see the statute book and regulations getting thicker and thicker as the Government try to head off all the strategies that will be developed to seek to take advantage of this provision. We have come up with something that is of infinitesimal consequence to the economy but that will nevertheless lead to huge red tape. I am afraid that the experience of previous Governments, including the Government of which I was a member, and of this Government is that tax avoidance continues to be sharper and more effective than HMRC and others will ever be in stopping it.
I am happy acknowledge that the Government have said that they will seek to address this issue—they need to—but it will be a nigh-on impossible task.
Lord Burnett
I wonder why, when he was in government, his Government did not introduce a general anti-avoidance rule of the sort now being introduced by the coalition Government. That should aid and assist the very matters to which the Minister has referred.
Lord Myners
I welcome the general avoidance rule, which of course is not the matter that we are discussing. Even there, though, while I was not directly responsible for HMRC or Inland Revenue matters when I was a Minister, we all knew that the agility of tax planners should never be underestimated. We need to be slightly careful that a general tax avoidance rule is not going to create a new nirvana and will not suddenly change things. It is a good thing and I welcome the Government’s proposal; indeed, I think that the Opposition have supported it, so I do not think there is a political point here. However, on this subject we need to be realistic about what will be achieved. We are up against mighty forces in tax planning. One has only to look at structured finance unit at Barclays Bank, which appeared to help people avoid billions of pounds of tax. It really is quite a challenge.
This small proposal will create a huge loophole that tax avoiders will, quite correctly in their view, seek to exploit.
Baroness Brinton
My Lords, I was going to leave the issue of tax loopholes until the end of my contribution, but given the preceding debate I remind the House that at an earlier stage I reminded the House of the business expansion schemes that were set up by the then Government in the late 1980s and early 1990s and targeted at new small high-tech companies that were looking for investors and considerable tax benefits to investors and shareholders in those companies. They progressed reasonably well over the subsequent two or three years, but then the accountants and lawyers found the loophole that enabled at the very least the university sector to entirely rebuild its student accommodation using those schemes. I confess, as bursar of a Cambridge college, that my college and all the other colleges used them in exactly the same way.
An interesting point to note, which the Chancellor might want to consider himself, is that the Treasury immediately closed the schemes down. I suspect that if the noble Lord, Lord Myners, is right, the Treasury would have no option but to close this down immediately, and I think that would signal the death knell of this entire clause. I apologise; that was going to be my peroration at the end but, given the debate that we have just had, I have started with it. Given the debate that we have had, the experience of the business expansion schemes is one that I hope this House and indeed the other place will take note of.
To go back to the beginning, I thank the Minister for negotiating the concessions, which have been vital. At all stages of the Bill on all sides of this House we have insisted that employees and prospective employees must have truly independent legal advice. To repeat the comments of the noble Lord, Lord Forsyth of Drumlean, I, too, went through this with a fine-toothed comb to see where the lacunae were but could not find any. It is extremely helpful that the clause echoes the compromise agreement legislation with regard to the necessary independence of the legal advice that the payment for reasonable advice must come from the employer. By the way, I think that will completely put off the Gradgrinds, who we talked about at some length on Monday, who want to use this as a quick and easy route.
There has been some discussion today about the value of shares. I am less concerned about the value of shares when the shares are first purchased, because we keep being told that this is for brand new companies when their shares are virtually at par value. There is a much bigger issue when an employee leaves if they have to sell the shares back, or at a point at which the company might be sold on and an employee may want to disagree with an arrangement that the company directors have come to with a prospective buyer. Unfortunately, I absolutely cannot think of a way of legislating against that. Let us hope that, should that happen, the increasing value of the shares would be such that the employees found it beneficial. However, my experience of working with high-tech companies throughout the 1980s and early 1990s was that the vast majority of small high-tech companies, which we are told this would be useful for, never make the sort of glorious gains where capital gains tax is a real benefit. There may be a very minor benefit, and that is wonderful, but not for most. The Cambridge silicon technology companies are the stellar ones; they account for less than 5% of such companies.
I wonder whether the Minister could assist the House by sending around the revised draft guidance notes for employers, companies, employees and Jobcentre Plus staff, given the concessions that we have seen during the past two or three days. Having reread them before today’s debate, I realise that they are substantially out of date. It would be extremely helpful to those of us who have been following this in detail.
I am in the same position as the noble Lord, Lord Pannick, in that I do not like this clause. I do not think it is workable. Even fewer companies are now likely to take it up because of the safety net of the independent legal advice, for which I am grateful. I have yet to meet an employer who thinks that it is appropriate to reduce employment rights in return for sharing in growth in the future. That remains my fundamental position. Perhaps unwittingly, though, the Government have made it so unpalatable that most employers will just ditch that and go for the traditional route of offering employees a future share through a straightforward shareholding where everyone shares the gain and there is no disbenefit.
Lord Christopher
I support the noble Lord, Lord Pannick. Although they have moved, with this Bill the Government have solved one problem only to create others. I begin by confirming what my noble friend Lord Myners said. I was campaigning for an anti-avoidance, broad-brush approach for 30 years as an official of the Inland Revenue Staff Federation. I agree with my noble friend Lord Myners that this will not work. Over those 30 years, Chancellor after Chancellor said precisely that in relation to the arguments from the union that there should be such a thing. We will await events to see whether it happens.
The only point on which I disagree a little with the noble Lord, Lord Pannick, is the question of independent advice. The press picked it up and said that people will be entitled to go to a lawyer but if you go back to the Employment Rights Act 1996, which is from where this proposal came, you find a weird list of people who are legitimate to give advice in the context of the Bill that we are discussing. An independent adviser can be a qualified lawyer, which is defined in the terms that you would expect, or an officer or official of a trade union who is qualified to value companies. The trade union movement has swarms of people qualified to do that at the moment.
Then we come to the issue of reasonable costs. If this is to happen, we must define “reasonable costs” as probably something that employers are expecting. If we were talking about going to a lawyer and this were a different forum, I would say that if lawyers were present, those who felt they were qualified to do it should put their hands up. Very few would be qualified. I do not know what it has now but the Inland Revenue used to have a specialist section in Hinchley Wood to deal with the valuation of companies. This morning I asked two company chairmen whether they could tell me what the value of their company was and the answer was no. They would have to pay qualified people to value those companies. While it may be initially a case of shares at par, Lord knows what it would be in two, three, four or five years’ time.
As for the advice that is being given, he or she who gives advice has to confirm that they are adequately insured to ensure that there is compensation payable if the advice turns out to be wrong. Why on earth are we debating this? This is a proposition that, prima facie, employers do not want to lessen on the terms that my noble friend Lord Myners has expressed. It will be a considerable disservice not just to working people, because the potential of this is dreadful. I would not need any arguments at all to vote against it on that basis. It is also a disservice to employers. They will read this as saying that they have to pay only a few hundred pounds for the reasonable costs of advice. It will not be that sort of figure. If I had to do this today, I am not certain where I would go if I went to the City of London. Fees there are not cheap.
This is a little explosion that is set to go off the first time that anybody gets serious advice. My advice to the TUC would be to say to every union that has asked: seek and provide them with a list of people who may be capable of giving advice. We are talking about thousands of pounds an hour.
Lord King of Bridgwater
My Lords, the Minister ended our previous discussions on this matter by saying that, depending on the outcome of the vote and if it went against what he was advising the House at that time, he would make sure that the strength of feeling here was conveyed to his colleagues in the Government. I should like to express my appreciation for his having very precisely discharged that undertaking. As we know in this House, it is unusual for us to have had two occasions on which we have declined to agree with the other place. This has been a difficult exercise for the Minister and at this stage I congratulate him on the extra safeguards that he has managed to introduce. I do not disagree with many Members of this House but my view on this clause is summed up by a phrase that Sir Winston Churchill once used. He said that he could on this matter confine his enthusiasm within the bounds of decorum without any difficulty. I certainly feel that I have made clear my views on this.
The situation is now that we have introduced important safeguards. Additional safeguards do not make it easier for employers and they limit the range of businesses to which they might apply. I think that the clause will have limited application. There is now much protection against the real danger of this being mishandled by irresponsible employers. My noble friend Lady Brinton referred to not having met an employer who is in favour of them. I am not in the least surprised. I do not think that an existing employer could use this provision. If he has existing employees with full employment rights, the idea that he starts introducing a small additional recruitment of people who have fewer rights seems to me an unreal situation. I see this being applied now by genuine start-up businesses where the originator trying to start some new IT company. He might say to his friends and bright colleagues who are going to join him that he just cannot take on the liabilities that he might have to face in difficult unfair dismissal cases and cases of redundancy, and that they should all be in this together. Those are the only applications where I see that this might work.
With this additional safeguard we have reached a stage when we must recognise the primacy of the other place. It is very unusual for us to reject twice in a row. I think that I can remember one occasion earlier in my time here but I cannot remember our going any further than this. I would have had to think very hard about that if we had not had such a comprehensive amendment, which, as my noble friend will recall, is precisely what I asked that we should introduce. It involved a lot of hard work and I pay tribute to the officials. The noble Lord, Lord Pannick, ably spelt out that this is a most comprehensive amendment. It covers a wider range than I expected could be covered. The list of the types of shareholdings is warning enough of the problem that this issue contains. In recognising the way in which the Government have respected the view of this House and responded to the points that we have made, I say genuinely to your Lordships that we have done our job. We have introduced additional safeguards. We have challenged the other place twice. Having limited significantly the damage and introduced very dubious questions as to whether this clause will amount to much, we should now ease its passage.
Lord Flight
My Lords, my noble friend Lord King has summed up the position extremely well. It is of interest that this largely appointed House has effectively achieved the democratic changes to Clause 27, for which there was clearly significant support.
The last time that we debated this, my noble friends Lord King and Lord Deben were saying similar things to me about this proposed piece of legislation but from the other side of the fence. As I said from the outset, it is clear that it is applicable only to the sort of situations that my noble friend Lord King described—to entrepreneurial situations, start-ups and groups of bright, young, ambitious people getting together and wanting to keep down the potential costs of their new enterprise. It would not be suitable, nor be taken up by large organisations. It would be strange to have some employees with one sort of equity and others with another sort, and some with one sort of employment contract and some with another. De facto, to the extent that it used, it will be in the territory described.
I may be naive, but I think the noble Lord, Lord Myners, exaggerates the scope for tax avoidance. It seems to me that it will be much smaller-scale, more analogous to the EIS scheme, which has been extremely successful in generating some £10 billion of risk capital for small companies and has more than paid for itself tax-wise. It may be that the noble Lord is a cleverer tax avoider than me—sorry, he is more knowledgeable than I am—but I do not think that the sort of structure to which he referred would work. I would have thought that HMRC would outlaw such things fairly quickly. I do not quite see how it would work to make individuals huge amounts of money that they would not make otherwise. I think the tax avoidance point is overstated.
Lord Myners
Will the noble Lord, Lord Flight, at least acknowledge that the OBR has also expressed serious doubts about how this provision, which is not affected in any way by the laudable proposals now made by the Government, will be exploited for tax advantage? I believe that the OBR projected a cost of £1 billion.
Lord Flight
I thought that what the OBR was effectively saying was that if capital gains tax on these arrangements were payable, that is the sort of revenue it would generate and the extent of the capital gains tax revenue that will be lost is because capital gains tax will not be payable. I am not clear that the OBR was citing fancy and wrong tax avoidance schemes for which it picked up intentions that they would be used. I stand to be corrected.
Lord Forsyth of Drumlean
With all due respect to my noble friend, the tax provisions within the Bill provide for the taxable gains on up to £50,000 shares not to apply, so if it were possible for people who would in the normal course of their employment receive shares to change their employment status, then £50,000-worth of shares that they received would no longer be subject to capital gains tax, which would apply if they had normal employed status. That is the kind of loophole that I hope my noble friend and the Treasury will deal with and which would cause a loss of revenue. While my noble friend and I may think that capital gains tax is too high, it would clearly discredit the scheme if the only people using it were people who would otherwise have had to pay tax in the normal way and who benefited by changing their employment status. That is the argument that we raised at an earlier stage, and I am content to take my noble friend’s assurances that this will be looked at and will not happen.
Lord Flight
I had indeed understood that that was the point, but if an individual chooses to invest in a fairly high-risk new venture via an EIS scheme, he does not pay capital gains tax. If he invests and it does not qualify for that scheme, he does. Self-evidently, new companies will as far as possible qualify for the EIS scheme because it gives that incentive to investors. The position here is not so dramatically different. People may well have equity in new start-ups that does not qualify for this scheme, but in terms of the overall package, as we are well aware, they will have to pay income tax up front, there is a limit to the amount of equity they can have and it is of cash-flow benefit to the company in terms of the potential costs that it removes. I do not see it as a vehicle of fancy tax avoidance. There is a perfectly fair debate about whether it is a good idea, but I do not believe it is useable as a vehicle for the sort of tax avoidance that we are trying to get rid of.
Nearly everything that there is to be said about this has been said in this House.
Lord Flight
I shall close by repeating the point made by my noble friend Lord King. It is a great credit to the Minister that he has gone back and got the key concession that this House clearly wished for when we last discussed this Bill. It would be somewhat churlish of this House at this stage to push things to the wire. This scheme is not going to be a huge issue, and its usage will be limited to appropriate circumstances. There is merit in having a new class of employment between self-employed and fully employed, and if this becomes law there may be some interesting lessons in what it generates.
Lord Bates
My Lords, I sense the mood of the House, and I will be very brief. One thing needs to be reiterated. My noble friend Lord Forsyth of Drumlean paid tribute to the House for securing these concessions and changes, but I should like to pay tribute to him. I came into the debate at Third Reading on 20 March with a speech in my pocket fully in favour of Clause 27. After it had been effectively demolished by my noble friends Lord Forsyth and Lord King and the noble Lord, Lord Pannick, I followed them into the Lobby and voted against this measure. They have done an immense service because I believed at the time that this should be an opportunity for the strong, not a fait accompli for the weak. The concessions that they have brought about and the way that the Minister has responded in bringing forward these comprehensive announcements reflects very well on those individuals and on the processes in this House. I will have no hesitation in supporting the Government when the vote is called.
Lord Stewartby
My Lords, I shall be very brief, but there is one point on which I should like confirmation from the Minister when he sums up. The provisions that have been introduced into this statute refer to all sorts of guidance and recommendations. They do not include the valuation of shares, yet quite a lot of the discussion has taken place as though they do. An opportunity to correct that would be helpful.
Lord Adonis
My Lords, I said at the outset of our debates on this shares-for-rights scheme that it makes the back of the envelope look like Magna Carta. As a result of our deliberations, the envelope is somewhat more neatly addressed, and for that at least we should be grateful. I join other noble Lords in paying tribute in particular to the noble Lord, Lord Pannick, who has pursued the Government tirelessly on this scheme and, if I may say so, has become something of the constitutional conscience of the House, with large numbers of Members being dragged along or tagging along with him but none the less getting to the right place in the end.
I also acknowledge the important role played by Conservative and Lib Dem Peers on this issue, notably the noble Lords, Lord Forsyth and Lord King, and the noble Baroness, Lady Brinton, who have been indefatigable in raising the issues that we have had to address and in ensuring that we have secured at least some safeguards in the Bill and made the proposal at least somewhat less objectionable than it was when it was introduced.
There have been some safeguards and the Bill is somewhat less objectionable, but the reality is that this shares-for-rights proposal is still fundamentally flawed and fundamentally wrong. It is not the details that are wrong; like the poll tax, the basic idea is wrong. The idea that fundamental employment rights granted by Parliament to ensure that employees are treated fairly can or should be traded for shares, let alone shares worth as little as £2,000, is fundamentally objectionable. We are talking about basic employment rights which, as the noble Lord, Lord Forsyth, pointed out in our deliberations, have been granted by Governments, including Conservative Governments, over recent decades: the right to redundancy pay; the right not to be dismissed unfairly; the right to request flexible working in order to look after dependants; and the right to request training. These are basic rights and, as the noble Lord, Lord Bilimoria, said, there is a fundamental confusion at the heart of this proposal between employment rights on the one hand and enhancing wider share ownership on the other. We are all in favour of wider share ownership. Indeed, the Government commissioned the Nuttall review, which reported only six months before this proposal came out of the Chancellor’s bath in favour of a whole set of measures to widen share ownership. Not one of them was the proposal before your Lordships this evening and indeed it was not even considered by Nuttall, so absurd would it have been to the Nuttall advisers.
Viscount Younger of Leckie
Once again, I thank all noble Lords who have spoken. I can only reiterate that the Government would like to give individuals and companies more choice in how they structure their workforce. That is the aim of the employee shareholder employment status—to provide this additional choice. It remains correct that the employee shareholder status will be likely to be taken up largely by new small companies, which my noble friends Lord Flight and Lord King acknowledged. A large number of points were raised during the debate and I would like to address as many as possible.
The first was a very important point raised by the noble Lord, Lord Pannick, and my noble friend Lord Forsyth and concerns the question of the cost of legal advice to the employee shareholder. I just make it clear that the issue is whether they are charged in terms of having a benefit in kind. I can confirm that the Government will introduce an exemption within the benefits-in-kind legislation to ensure that the requirement to provide legal advice will not lead to a tax cost on individuals looking to take up the employee shareholder status, regardless of whether they choose to take up the status. This should be addressed in the Finance Bill.
The second point is a point of clarification and concerns the definition or description of drag-along and tag-along rights. Perhaps at this stage I should defer to the superior knowledge of my noble friend Lord Forsyth. The answer, for the education of the House, is that these rights are sometimes found in a company’s articles of association or shareholder agreements. Drag-along rights refer to the rights of a majority shareholder to require minority shareholders to sell their shares if the majority shareholder sells theirs on the same terms, and tag-along rights, which are more active, are the rights of minority shareholders to procure an offer for their shares on the same terms as the majority shareholders are selling theirs.
The noble Lord, Lord Bilimoria, in a passionate speech, raised the issue of consultation. I should like to clarify that we consulted on how to implement the option, not on whether we should proceed in principle. Therefore, it is not true to say that no one supported the measure, although he did not say exactly that. The consultation responses included some positive responses. As organisations said, businesses of all sizes might be able to benefit because the changes suit the dynamic way that their business operates. Therefore, the Government believe that it is a good additional option for companies and individuals. It adds to the existing status of employee and worker, which has been much covered in previous debates, and it provides those taking it up with the flexibility as well as the opportunity to share the reward and the risk that comes with having an interest in a growing company. As I have said in the past, we recognise that not all companies will wish to take up this new status, and that is fine. What is important is giving those companies that wish to take on people in this different way the opportunity to award share equity.
The noble Baroness, Lady Turner of Camden, raised the issue of withdrawal of employment rights, which I believe she raised in previous debates and which I understand. The argument is that we believe it is wrong to focus on just one aspect. Forgive me if I am repeating myself, but the employee shareholder status must be seen as a package. It is a package of employment rights, mandatory shares and tax incentives. It is the interaction of all three aspects that will motivate staff.
This new status confers a number of benefits for both the employer and the employee shareholder. From an employer’s perspective, the employee shareholder is more likely to generate ideas, as I remember mentioning in the past, for bettering the company, and to have a greater incentive to contribute to the organisation. Indeed, the hope is that they will stay longer than they otherwise might in their particular organisation.
Changing tack, the noble Lord, Lord Myners, raised the issue of multiple use of connected companies. Employee shareholder status is intended to be part of a flexible and efficient labour market in which people can move from job to job if opportunities arise—a point which may not surprise the noble Lord. However, where a person takes up an employee shareholder status in a number of companies which are associated with one another, such as banks and subsidiaries, income tax will be payable on any shares received from whatever company beyond the first £2,000 in value. Likewise, any shares beyond the first £50,000 in value will not enjoy the exemption from capital gains tax. This will prevent multiple use of the scheme for tax advantages, because the relevant limits for the tax exemption will apply to all employee shareholder contracts with connected companies.
I finish on this note. I outlined extensively in my opening remarks the points that have been raised in past debates about the share status. I reiterate that the Finance Bill will be used to sweep up any issues. We will be looking at this extremely carefully.
My noble friend Lady Brinton asked a relevant question as to whether I will be sending around revised guidance to the House. Of course, we will be sending guidance around once we have incorporated all the changes which have come from the various concessions which we have outlined today, made by Parliament and stakeholders. However, consultation continues, and I would not at this stage wish to commit myself to any particular date for passing that on.
The noble Lord, Lord Myners, raised a point about a general anti-avoidance rule. Forgive me if I am repeating myself, but the Finance Bill also introduces a general anti-avoidance rule which will tackle abusive avoidance schemes or contrived arrangements designed to avoid tax. This rather neatly rounds up a quite interesting debate that we have had this afternoon, including from my noble friend Lord Flight and the noble Lord, Lord Myners, on this issue.
The key point about tax abuse which has not been made is that the Finance Bill is an annual process. This issue can therefore be tackled at least on an annual basis if necessary. I confirm, too, that HM Treasury and HMRC will be keeping the scope for tax abuse under constant review.
The noble Lord, Lord Christopher, asked what happens if the legal advice given to putative employee shareholders is erroneous or negligent. Legal advisers are likely, of course, to have professional indemnity insurance which covers negligent advice and its consequences, so there will be safeguards there.
Lord Christopher
The noble Viscount has been very coy about what “reasonable” means. I sought to demonstrate that it could be much more expensive than it might appear at first sight. I do not know of any trade union lawyer, for example, who would do other than say, “Go to the City for advice”. Equally, it may well be more difficult to be satisfied by a valuation on the sale or disposal of those shares. Will there still be available to workers the opportunity to get advice on that?
Viscount Younger of Leckie
I believe that I have spelt out the comprehensive and extensive advice that will be on offer to employees. The noble Lord, Lord Christopher, has brought up the issue of what can be defined as “reasonable costs”. We recognise that the cost of legal advice will depend on individual circumstances. I remind the House that employee shareholder status and its ramifications will entirely depend on the type of company, type of employee and the wishes of the employee shareholder. Those discussions will go on outside any control from government. The costs involved will vary depending on the type of contract or job offered and the level of knowledge of the individual seeking that advice. What is reasonable in one particular instance may not be reasonable in another. Very deliberately, we are not stipulating a minimum or maximum price which would come under the definition of “reasonable costs”. It relates to other areas and sectors in entirely different circumstances. The concept of “reasonable costs”, as I am sure the noble Lord will be aware, is not an unusual matter.
Lord Christopher
Who is to determine the result if there is a dispute about the costs involved?
Viscount Younger of Leckie
There is deliberately no determining factor. This is a matter which has to be part of a discussion between the employer and the employee shareholder. The issue remains that the employer has to decide whether the costs are reasonable. If, for example, the costs are not reasonable, the employee shareholder has the right to complain and raise an issue. The ultimate sanction, of course, is that he may decide not to take up the job at all. That of course remains a matter for him.
The noble Lord, Lord Christopher, raised the question of valuation, which I earlier covered to some extent. He also raised the expense for companies in terms of valuing the shares. We acknowledge that it is not easy for private companies to value shares, a matter which I covered in some depth earlier. As I said, if the company is issuing new shares as part of an employee shareholder scheme, it is likely to take advice from their accountant, who will use standard methods to value the company. Again, I covered that earlier.
The House will be aware that the other place has now voted to retain this clause three times, a point made by my noble friend Lord King. I acknowledge the important role of this House, too. I believe that we have more than fulfilled that role. This House has carefully considered and improved the clause, which is evident from the package of amendments that we have discussed today. With your Lordships’ assistance, we have ensured that this clause now contains important protections for individuals. It is now for companies and individuals to use it if it is right for them.
Lord Pannick
My Lords, I thank the Minister for all his considerable efforts in securing the comprehensive amendment on independent advice. I also thank the noble Baroness, Lady Brinton, and the noble Lords, Lord Forsyth of Drumlean and Lord King of Bridgwater, without whose considerable efforts, the House would not have secured this important protection.
The noble Lord, Lord Adonis, exposed the defects in Clause 27 at Second Reading. He has since then, at every stage of the Bill, used his considerable forensic skills to expose each and every defect in this lamentable provision. I entirely agree with the substance of his powerful criticisms of Clause 27. However, the Government are determined to introduce Clause 27. It is impossible to see what further protections this House could usefully add. Therefore, the question, as it seems to me, is whether this House should continue to stand in the way of the Government’s determination to include Clause 27 in the light of the considerable safeguards that this House has introduced.
This House has had its say. It is now time to give way on this issue to the elected House. I therefore do not intend to divide the House further on this matter. I beg leave to withdraw the amendment.
“( ) For the avoidance of doubt, nothing in this section shall create a category of job vacancy which is solely an “employee shareholder job vacancy”.”
Lord Lea of Crondall
My Lords, the reason for this Motion is because there is one point which has been made repeatedly the last four or five times in which this matter has been discussed in the Lords and the Commons. It relates to the category of job vacancy which is solely for employee shareholders.
Those of us who are versed in industrial relations have been very puzzled by this from the word go. What is this category of job vacancy which is offered by employers solely to employee shareholders? The Minister cannot possibly stick to what he has expressed once or twice that there is always an option. There is no option in this Bill unless the guidance is radically rewritten.
On 22 April, the Minister said that the guidance possibly did need rewriting but that that was not too difficult. I would invite him to do so but, given the time, perhaps all he needs to do is to acknowledge that, at the moment, the guidance is not perfect and needs to be rationalised in the light of much of what has been said in both Houses of Parliament.
Of course, it is true that employers may want some of these jobs to be for employee shareholders. However, if they then say that the only jobs available for that warehouse, or that factory, are employee shareholder jobs, that is saying that those prospective employees can either have a job and give up their rights against unfair dismissal or redundancy, or not have a job at all. That is not offering options.
The Minister needs to respond to this Motion in some way tonight but, more importantly, how is Parliament going to scrutinise all the various introductory procedures before this can become operational in Loughborough, for example, and elsewhere?
In conclusion, would the Minister now concede for the first time that there is in the Government’s mind—as is stated in the guidance—a category of job vacancy called an employee shareholder job vacancy? I beg to move.
Lord Morris of Handsworth
My Lords, I support the Motion in the name of my noble friend Lord Lea of Crondall. My support is based on two principles which I want to clarify. First, it is important that the intention of Parliament is clear and my noble friend’s Motion does that. Secondly, there is the issue of equality of opportunity in the recruitment process.
Given the extent of the Government’s effort to secure the passage of this Bill, employers at every stage of the recruitment process will assume that having shareholder employees is the preferred option. For the avoidance of doubt, it is therefore imperative that the legislation is clear and that what Parliament means is recorded on the face of the Bill. The Motion does that: it removes any inadvertent preference for shareholder employees.
My second point concerns the avoidance of discrimination at the point of recruitment. Here is a very simple example. A job is advertised by an employer who is currently operating an employee shareholder scheme. It is my view that, without this Motion, there is no duty, no guidance to the employer not to discriminate in favour of a shareholder preferred option. For those reasons, the legislation can be enhanced by clarity of purpose in order to protect the employee and also the employer, who might have to answer questions about the choice that was made at the point of recruitment. There is no protection in respect of recruiting a shareholder employee rather than someone else who is equally or better qualified. I support the Motion.
Viscount Younger of Leckie
I thank the noble Lords, Lord Morris and Lord Lea, for their interventions. As I made clear in my opening remarks, we do not believe that the provision in the Motion of the noble Lord, Lord Lea, is necessary. It should be up to employers to recruit as they see fit. If a company wants to recruit an employee shareholder, as companies already do with employees and workers, it should be able to do so in its own way. Taking the argument further, if an employer wishes to post a notice for, or advertise, an employee shareholder position, they should be free to place this as one role, just as they would be able to do in an advertisement for any other role. While the House has raised concerns on behalf of the individual, and particularly given the concessions we have made, we must ensure that we do not tie the hands of employers. The noble Lord’s Motion would do just that. Therefore, I hope that it will not be supported by the House.
Lord Lea of Crondall
I thank the Minister for his reply. Perhaps I should first mention my thanks to my noble friend Lord Morris of Handsworth, who some 15 years ago was the chairman of the TUC working party on rights at work. I recall that this was part of a hugely successful programme of improving the quality of the contract of employment in many ways. This is the first time I have seen legislation that explicitly states that you can have a contract of employment of less satisfactory quality. That should be a source of concern. It would have been a source of concern in Whitehall in the days of the Ministry of Labour. At the moment we have legislation that is like a dog with three legs. There is input from the Treasury, Customs and Excise and BIS, but because there is no ministry of labour, the collective experience of people who know about recruiting and agreements seems to have been totally lost.
I think that our predictions will come true and that the Government—or the Government in power at the time, because we are only two years from a general election—will see this programme staggering on its feet. All the difficulties, from those raised by my noble friend Lord Myners to those raised in our last debate by other noble Lords on all sides of the House, will come to pass. However, in light of the hour and having had a full debate on this question over many days, I beg leave to withdraw the amendment.
The Lord Speaker (Baroness D’Souza)
My Lords, after completion of proceedings on the growth Bill, in the Division on the Procedure Committee report regarding a Back-Bench debates committee, there voted not content 245 rather than 243 as announced.
Enterprise and Regulatory Reform Bill
(11 years ago)
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Commons disagreement and reason
The Commons disagree to Lords Amendment No. 35 for the following Reason—
Lords insistence and reason
The Lords insist on their Amendment No. 35 for the following Reason—
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 36 for the following Reason—
Lords insistence and reason
The Lords insist on their Amendment No. 36 for the following Reason—
Commons insistence, non-insistence and consequential amendments
The Commons insist on their disagreement to Lords Amendment No. 36, do not insist on their disagreement to Lords Amendment No. 35 and propose the following consequential Amendments to the Bill—
Baroness Stowell of Beeston
That this House do not insist on its insistence on Lords Amendment 36 and do agree with the Commons in their Amendments 36C to 36E.
Baroness Stowell of Beeston
My Lords, I will also speak to Motion B. We return to discussion of the equality provisions of the Enterprise and Regulatory Reform Bill. The House debated these issues on Monday and strong views were expressed, on which the Government have reflected very carefully. On Monday, as on other occasions, the noble Baroness, Lady Campbell, spoke eloquently and with passion about the importance of the commission’s general duty. I very much respect the knowledge that she and others contributed during the passage of the Bill.
The Government want the commission to be a strong equality and human rights body: our national expert whose opinion is respected and valued. This is what our legislative proposals, alongside our non-legislative work, are intended to achieve. We recognise that the general duty is important to many people as a symbolic statement of the Equality and Human Rights Commission’s overarching purpose. After the debate and Division in the House on Monday, the Government reflected further and decided to no longer press for its removal from the Equality Act 2006. However, as I argued on Monday, the general duty has a practical effect, as Section 12 of the Equality Act 2006 requires the commission to monitor and report on society’s progress against the aims set out in the general duty. We continue to believe that the commission will be more effective if the monitoring and reporting that it is required to do focuses clearly on its core equality, diversity and human rights duties.
The Motion we are considering today enables the commission’s general duty at Section 3 to remain in the Equality Act 2006. It also proposes that the commission should monitor progress against the duties specified in Sections 8 and 9 of the Equality Act 2006 —equality, diversity and human rights—the very areas where the commission can make a difference in society as our national equality body and national human rights institution. I should make clear that the commission will continue to be required to monitor and report every five years on changes in society in areas that it is uniquely placed to influence and change: in other words, those specified in Sections 8 and 9.
I come now to some technical amendments and beg the patience of noble Lords. Retaining the general duty at Section 3 also requires a consequential amendment to ensure that the word “groups” in the general duty is defined effectively. Amendment 36C, agreed by the other place, reinserts the parts of Section 10 that define “groups” for the purposes of the Act. Amendments 36D and 36E are technical and consequential amendments.
These proposals, which were fully supported yesterday in the other place, address the concerns raised during debates in this House. They build on the good progress already made. The Equality and Human Rights Commission is now well placed to go from strength to strength. I beg to move.
Baroness Campbell of Surbiton
My Lords, I am greatly relieved and so appreciative that the Government have listened and conceded to the opinions of this House on the importance of the general duty. I and countless others who fought for and benefited from the Equality and Human Rights Commission slept a lot more happily last night in the knowledge that the body will continue to give overarching direction on equality and human rights in Britain in all its manifestations.
I am also reassured that the EHRC will continue independently to monitor and report on equality and human rights nationally, as required by EU law and the Paris principles. Such monitoring will not deflect its focus but will enhance its ability to protect and promote equality and human rights in an ever-changing world. The journey of this amendment has been a tough one, but I for one have learnt once again how collegiately and intelligently this House can shine. My thanks go to all those who took part, and of course to the Government for their generous concession.
Lord Cormack
I briefly follow the noble Baroness, first in thanking my noble friend the Minister for responding as she did to that very powerful vote on Monday, which was not the first powerful vote on this subject. Most of all, I hope and believe that I speak for everyone in this House in congratulating the noble Baroness, Lady Campbell, on her tenacity, her courage and her articulate presentation of a case that has been both powerful and moving. She has not only proved herself to be an invaluable Member of your Lordships’ House, but she has enabled us to demonstrate how important this House can be on issues that are not necessarily enormous in the general scheme of things but that are terribly important.
The Bill will be all the better for the acceptance of the amendment introduced by the noble Baroness, and for the response given by my noble friend the Minister. This is a happy note on which to end these particular deliberations, and we really are all very much in the debt of the two noble Baronesses, particularly the noble Baroness, Lady Campbell.
Lord Stevenson of Balmacara
My Lords, this is a good day for equality. I think we have heard enough from all around the House to explain where this has come from. We are all in considerable debt to the exemplary work done by the noble Baroness, Lady Campbell. We think tremendously of her for doing it, particularly when we reflect that in taking on that task she had no greater foe than the noble Lord, Lord Lester, who has somewhat iconic status in your Lordships’ House as the guardian of all things to do with equality. He was against her. She saw no enemy, and saw him off. As a result, we are where we are today. As the noble Lord, Lord Cormack, has said, this is a good day for the House of Lords. Your Lordships’ House has done well to ensure that its will has prevailed, and we are all the better for that.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Baroness, Lady Campbell of Surbiton, for her support and her generous remarks. I echo my noble friend Lord Cormack’s tribute to her, and I am grateful to the noble Lord, Lord Stevenson, for his support this evening for the Government’s Motion. I am glad we are able to conclude the debate on the Equality and Human Rights Commission united in our aims for a fair and equal society.
“Equality Act 2010: caste discrimination
(1) The Equality Act 2010 is amended as follows.
(2) After section 9(1)(c) (race) insert—
“(d) caste;”.”
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 37 for the following Reason—
Lords insistence and reason
The Lords insist on their Amendment No. 37 for the following Reason—
Commons insistence and amendments in lieu
The Commons insist on their disagreement to Lords Amendment No. 37 but propose the following Amendments to the Bill in lieu of the Lords Amendment—
“Equality Act 2010: caste as an aspect of race
(1) Section 9(5) of the Equality Act 2010 is amended in accordance with subsections (2) to (4).
(2) Omit “may by order”.
(3) In paragraph (a) (power to provide for caste to be an aspect of race) at the beginning insert “must by order”.
(4) In paragraph (b) (power to provide for exceptions to apply or not to apply to caste) at the beginning insert “may by order”.
(5) A Minister of the Crown—
(a) may carry out a review of the effect of section 9(5) of the Equality Act 2010 (and orders made under it) and whether it remains appropriate, and
(b) must publish a report on the outcome of any such review.
(6) The power under subsection (5)(a) may not be exercised before the end of the period of 5 years beginning with the day on which this Act is passed (but may be exercised on more than one occasion after that).
(7) If a Minister of the Crown considers it appropriate in the light of the outcome of a review under subsection (5), the Minister may by order repeal or otherwise amend section 9(5) of the Equality Act 2010.
(8) The power to make an order under subsection (7) includes power to make incidental, supplementary, consequential, transitional or saving provision, including doing so by amending an Act or subordinate legislation (within the meaning of the Interpretation Act 1978).
(9) An order under subsection (7) must be made by statutory instrument.
(10) A statutory instrument containing an order under subsection (7) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
“( ) section (Equality Act 2010: caste as an aspect of race) extends only to England and Wales and Scotland;”
“( ) section (Equality Act 2010: caste as an aspect of race);”
Baroness Stowell of Beeston
That this House do not insist on its insistence on Lords Amendment 37 and do agree with the Commons in their Amendments 37C to 37F in lieu.
Baroness Stowell of Beeston
My Lords, this House has debated caste and caste discrimination at each stage of this Bill since Grand Committee. I pay particular tribute to the noble and right reverend Lord, Lord Harries, and my noble friends Lord Avebury and Lord Deben, for their important, impassioned and at times moving contributions to these debates. I also acknowledge many other noble Lords who spoke in heartfelt and well informed ways, many for but some against the different amendments relating to caste discrimination being incorporated into the Equality Act 2010.
Earlier this week we considered this issue again in some detail, and this House repeated its view that caste should be directly included in the Equality Act 2010 as an aspect of race. The Government have always said that we are against any form of caste prejudice or discrimination. What has been at issue is how best to tackle any such prejudice and discrimination that may occur.
We have listened carefully to what this House has said, and we acknowledge the strength of opinion that has been expressed. While I need to record that we remain unconvinced that the evidence shows that legislation is the right way to resolve problems associated with caste prejudice or discrimination, we none the less accept the need to resolve this matter. We have therefore made the commitment, after full and extensive consultation, to legislate. Noble Lords will recognise that this is the essential difference compared with our earlier proposals.
The amendment that was last debated in this House would have seen caste directly become an aspect of race for the purposes of the Equality Act 2010. Instead, we propose an alternative form, which was originally proposed as an amendment in this House in Grand Committee. Under this amendment in lieu, what is currently a discretionary power in the Equality Act to add caste to the list of race characteristics will become a duty on the Secretary of State. This amendment still gives effect to the need to legislate, while giving us greater flexibility to pick up the key issue of public consultation, which I believe the House recognises to be necessary and useful.
There are important issues on which we need to consult widely. The first concerns the definition of caste in the Act and any associated exceptions. Second is the issue of non-legislative concerns, some of which were highlighted by the Opposition in the other place and raised in this House, for example the guidance needed by business or by courts and tribunals, or the vexed question of caste identification and monitoring. Finally, there are wider issues to do with caste, such as gathering the right evidence that may be needed for the eventual statutory reviews, to which I shall come in more detail in a moment.
The secondary legislative approach, which the Government are proposing today and which I think was supported by a number of speakers, gives us better assurance that we get the legislation right, as well as greater flexibility on its timing. I should add that we intend to continue with our Talk for a Change education programme in relevant communities, which we continue to see as having an important role in effecting cultural change over time. We also wish to involve and work closely with the Equality and Human Rights Commission on broader issues of caste and caste-related discrimination.
Noble Lords will also see that there is a further element in the Motion. We have provided for the possibility of a review of the exercise of the caste power and any order made under it. This safeguard is in response to the various concerns raised by parliamentarians of all parties, here and in the other place. It looks beyond any immediate need for caste legislation, and concerns the importance of ensuring that legislation does not inadvertently embed in British society the concept of caste, together with those aspects of it that are inappropriate to the modern world.
We see no place for caste in today’s Britain, and we want caste distinctions to disappear over time. This power gives us the opportunity to review the ongoing need for such legislation to remain, together with a means for its removal should it no longer be considered appropriate. As I have already said this evening, the Government have listened carefully. We are committing to legislate after we have carried out the consultation which this House has recognised to be necessary, before we exercise the power to make caste an aspect of race in the Equality Act 2010. We are also putting in place the option to review that legislation after it has been enacted. I trust that noble Lords will accept these proposals, one of which mirrors an earlier proposal put forward in this House. The other picks up on a suggestion put forward by the Opposition, among others. I beg to move.
Lord Harries of Pentregarth
My Lords, I would like to express our deep appreciation to the Government for listening to the concerns of communities that are most affected by caste discrimination, and thank the Minister in particular for the seriousness with which she has taken this issue and the commitment that she has given it. As she said, the vital change has taken place. The word “may” has been changed to the word “must”. This will be part of primary legislation. There is agreement all around the House and in the other place that a period of consultation is necessary, both with those who are firmly in favour of the legislation and those who are against. There is absolutely no disagreement on that, and it is inevitable that there should be a period of time before the Act comes into force. Together with the noble Lord, Lord Avebury, I will seek a meeting with the Minister in the other place to talk with her about this consultation, in particular to get some sort of feel of the timescale before the Bill is enacted. I reiterate the thanks of the communities most affected by caste discrimination for the way in which the Government have listened seriously and responded to their concerns.
Lord Avebury
I shall add a 15-second contribution to what the noble and right reverend Lord, Lord Harries of Pentregarth, has already said about our gratitude to the Minister, who, as he said, has listened carefully to the representations that have been made. I only wish that she could have seen the joy that the announcement caused among the communities, which was displayed in a demonstration in Parliament Square yesterday afternoon. Hundreds of people were there, welcoming the change of attitude by the Government and saying that this was a moment of tremendous excitement and joy among all the Dalit communities.
I am not so sure about Talk for a Change, because I think that it is probably a waste of money. However, this is not the moment to cavil about the detail but only to welcome the principle that this matter will be dealt with by legislation. I am most grateful to my noble friend and to the Government as a whole for their change of mind, declared at this last moment.
Lord Stevenson of Balmacara
My Lords, we are extremely pleased that the Government have now accepted the need to legislate for legal protection against discrimination on the grounds of caste. Everyone agrees that caste has absolutely no place in our society and that, if there is even one case of such discrimination, proper action must be taken and there must be proper access to redress.
I also join the thanks for the exemplary work done by the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Avebury, who have taken the main burden of negotiations and discussions about the right way forward. We have arrived at a very elegant solution by changing the legislation to require the duty on the Government to make progress, therefore bridging the not very large but seemingly unbridgeable points that seemed to divide us on this issue. Eventually, with good sense on all sides, they have been removed, and we are very grateful to the Government for that. This is now again a good day for equality, and we will all celebrate this as we go forward.
I thank my noble friend Lady Thornton, who cannot be here this evening, for the considerable work that she took on when she came into this area. She used me as a bit of a listening board from time to time, and I felt that sometimes I had been at some of the meetings, where some rather inelegant things were said that do not bear repeating in your Lordships’ House, because noble Lords would be shocked. We got through it, we are here today and we should celebrate where we are and wish the Government well in their onward work, which will all be very useful.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Stevenson, for welcoming the Government’s Motion this evening. I share with him his tribute to his noble friend Lady Thornton. As much as I am always pleased to see the noble Lord, I am none the less disappointed that the noble Baroness could not be here this evening. I shall make sure that I convey that to her directly outside the Chamber.
I am very grateful to the noble and right reverend Lord, Lord Harries, for his generous remarks and for those of my noble friend Lord Avebury. I note the noble and right reverent Lord’s request for a meeting with my right honourable friend in the other place. I am sure she would want me to agree to that meeting without hesitation, because it would clearly be welcome to hear further from noble Lords before we start on the consultation process.
I am grateful to all noble Lords for the remarks that they have made this evening. Like the noble Lord, Lord Stevenson, I am pleased that we have been able to find a way through that addresses all the concerns that have been made and that will ensure that we find a way through that satisfies those who have been suffering and that does not perpetuate something that we do not want to see as part of our society.
Public Service Pensions Bill
(11 years ago)
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“(c) the Defence Fire and Rescue Service”
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 78 for the following Reason—
Lords non-insistence and amendment in lieu
The Lords do not insist on their Amendment 78, but do propose Amendment 78B in lieu.
“Defence Fire and Rescue Service and Ministry of Defence Police Capability Review
(1) The Secretary of State, in conjunction with the Secretary of State for Defence, will, within six months of this Act coming into force, prepare and lay before both Houses of Parliament a report setting out the Government’s assessment of the impacts of this Act on current and future members of the Defence Fire and Rescue Service and current and future members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987.
(2) A report under subsection (1) will include, but not be limited to, consideration of the following —
the impacts on the health and wellbeing of members of the Defence Fire and Rescue Service and members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987;
the ability of the Defence Fire and Rescue Service and members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987 to meet the Ministry of Defence’s statements of requirement of these personnel;
the number of members of the Defence Fire and Rescue Service and members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987 taking early retirement, the consequences of early retirement for those members and the costs to the taxpayer of such members taking early retirement.”
Commons disagreement and amendment in lieu
The Commons disagree to Lords Amendment No. 78B, but do propose Amendment 78C in lieu.
“Defence Fire and Rescue Service and Ministry of Defence Police: review
(1) The Secretary of State must, before the end of the period of six months beginning with the day on which section 9 (pension age) comes into force, prepare and lay before Parliament a report on the likely effect of that section on members or future members of
the Defence Fire and Rescue Service, and
the Ministry of Defence Police.
(2) The report under this section must include a report on —
the likely effect of section 9 on the health and well-being of members of the Defence Fire and Rescue Service and the Ministry of Defence Police,
the likely effect of section 9 on the ability of the Defence Fire and Rescue Service and Ministry of Defence Police to continue to meet operational requirements, and
the extent to which members of the Defence Fire and Rescue Service and Ministry of Defence Police are likely to take early retirement in consequence of section 9 (and on the consequences of taking early retirement for the persons taking it and for the taxpayer).
(3) In this section “Defence Fire and Rescue Service” means the fire service maintained by the Secretary of State for Defence.”
Lord Newby
That this House do not insist on its Amendment 78B and do agree to Amendment 78C proposed by the Commons in lieu of that amendment.
Lord Newby
My Lords, as the House is aware, the Government accepted on Monday the substance of the amendment of the noble Lord, Lord Eatwell. I said we would make some small, technical changes to ensure that it works as intended. The government Motion before us makes all those necessary tweaks, while upholding the principles of the policy in full.
I briefly explain the reasons why the tweaks were necessary. The Government’s redrafted Motion seeks to address some inadvertent consequences that could arise from accepting the amendment that the House approved as it stood on Monday. First, the names of the workforces were not quite right. We have corrected this to ensure they are consistent with other statutory references to these groups of public servants. Secondly, there was the potential for confusion about the role of the Secretary of State for Defence, who is included in the general term Secretary of State. The noble Lord’s amendment implied that he would carry out any review of the terms and conditions of these workforces in conjunction with himself. That has now been corrected. I suspect that the original wording sought to ensure that the Treasury and the MoD worked together on the review; I can confirm that that is the intention.
Finally, there is the issue of commencement—the timeframe for when the Motion would come into force. The amendment of the noble Lord, Lord Eatwell, would have started the clock only after the entire Bill came into force, which would delay the review considerably. Instead, the Government’s Motion creates a specific deadline linked to the relevant clause of the Bill, a timescale which has been further clarified by the Economic Secretary in another place. I am also happy to confirm to noble Lords that the Government will commence the relevant sections promptly to ensure that the review takes place without further delay with a view to concluding and reporting within eight months.
My colleague the Economic Secretary has already committed in the other place that the Government will not be blind to the context in which the review will take place. The review of pension arrangements will take account of the wider pay and remuneration package of the forces involved.
The Government will now work closely with the relevant interested parties to pursue the appropriate way forward. Workforce representatives are some of the most important and interested parties, and so will be fully involved. I hope that noble Lords will agree that the Government have been very clear in their support for this review. We are now keen to get on with it and to establish the best way forward. On that basis and in this spirit, I urge noble Lords to support the Motion. I beg to move.
Lord Eatwell
My Lords, I am grateful for the corrections which the noble Lord has made to the amendment which I put down yesterday, and for the commitment that the review will be done within eight months. There was another change that he did not cover. The term of art, “statements of requirement”, which refers to the level of physical ability that the fire service and police must attain, was changed to “operational requirements”. What is the significance of that change?
Lord Newby
My Lords, I do not think that there is any significance in the change. As I said earlier, there has been no change of substance in the content of the Motion as it appears before your Lordships’ House from the amendment that the noble Lord moved on Monday, which was accepted by the House. I am 99% certain that that was the case. If I have misled him or the House, I will write immediately to correct it. I can assure the noble Lord that the aim and the intention is simply to have language that is clear, unambiguous and enables us to get on with it. I beg to move.
Arrangement of Business
Baroness Anelay of St Johns
My Lords, I am now in a position to make the formal announcement with regard to the arrangements for Prorogation. Now that the progress of business is certain, it may be for the convenience of the House if I indicate that I expect Royal Commissioners to attend this House late tomorrow afternoon to signify Royal Assent to several Bills and to prorogue Parliament until 8 May. The exact time of the ceremony will be settled tomorrow, once the flow of business in both Houses is clear.
National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013
(11 years ago)
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22:25 - Division on the Motion. - Ayes: 146 / Noes: 254 - Motion disagreed.
Lord Hunt of Kings Heath
That a humble address be presented to Her Majesty praying that the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, laid before the House on 11 March, be annulled on the grounds that they do not implement the assurances given by Ministers to Parliament during the passage of the Health and Social Care Act 2012 that NHS commissioners would be free to commission services in the way they consider in the best interests of NHS patients (SI 2013/500).
Relevant document: 33rd Report from the Secondary Legislation Scrutiny Committee.
Lord Hunt of Kings Heath
My Lords, one of the main concerns in our debates on the Health and Social Care Bill was the fear that clinical commissioning groups would be compelled to put clinical services out to tender, forcing doctors and nurses to compete with each other at huge expense and at risk of fragmentation of clinical services to patients. In response, the noble Earl, Lord Howe, told this House that commissioners would not have to create markets against the best interests of patients. He said that they would be free to commission services in the way they consider best. The regulations we are debating tonight are concerned with the circumstances in which contracts for the provision of services to patients within the NHS must be put out to tender.
When an NHS commissioner goes to tender for a service, the commissioner is already required to operate within a framework of EU and domestic law. These regulations are different from the existing regime in which NHS commissioners operate. They impose for the first time legal obligations on NHS commissioners to tender services with NHS trusts. They remove the discretion that commissioners have to decide when it is in the best interests of patients to expose the service to a compulsory competitive tendering process. We are deciding which organisation is best placed to deliver service. At the moment, commissioners can look at the needs of the NHS as a whole and make a holistic judgment about who is best placed to deliver a service. These regulations, in my contention, make it far more difficult for commissioners to take such a whole-picture approach.
Many NHS organisations, including the BMA, the Royal College of General Practitioners, and many more, have sounded the alarm about the effect these regulations will have on the NHS. Your Lordships’ Scrutiny Committee reported them with substantive criticisms for the special attention of the House on the grounds that they may imperfectly achieve their policy objective. Not least of the committee’s concerns were that because of the withdrawal of the original regulations and their hasty substitution of these ones, the Government have allowed insufficient time to enable thorough scrutiny. The committee says that it cannot be good or effective policy-making to seek their immediate implementation when they are so widely misunderstood.
The Health Minister, Mr Burns, told the other place that it was not the Government’s intention that the regulations would impose compulsory competitive tendering requirements on commissioners. But surely that is what Regulation 5 does. The only circumstance in which a CCG can avoid a tendering process is if that CCG is satisfied that the services under the contract are capable of being provided only by a single provider. The single provider test will never be satisfied apart perhaps from the case of a single rural hospital which is the only provider for acute services in a large geographical area. I fail to see how it could operate in cities such as Birmingham or London because there will always be multiple providers. Having mentioned Birmingham, I ought to remind the House of my health interests. Hence, in those circumstances it will not be for commissioners to decide, as the Minister has assured us. It will surely be for commissioners to undertake a competitive process in all cases, unless there is no remote possibility of another capable provider coming forward. This will be bureaucratic and very expensive. One question that I want to put to the Minister is why the Government have not set a contract value below which the single provider test will not apply. Why is that not in line with all other procurement regimes?
When we met the noble Earl for a briefing a few weeks ago on the regulations he gave examples of the circumstances in which services are capable of being provided only by a single provider. He particularly mentioned the possibility of bundling services together in a single contract. But, even in those circumstances, there will often be more than one provider. I remind the noble Earl that the recently published review of the economic regulator for the NHS, Monitor, entitled A Fair Playing Field, makes a number of criticisms of bundling. Monitor said that it restricted the ability of providers to enter the market and that bundling services together was likely to exclude some providers from offering services. Monitor is being asked to police the regulations. The noble Earl will have seen the letter that noble Lords have received from a number of leading charities which say that the bundling of services could put them out of reach of the voluntary sector. If that is the view of the voluntary sector, what of private companies that may feel similarly aggrieved?
Lord Clement-Jones
My Lords, I was prepared to disagree with a substantial proportion of the speech by the noble Lord, Lord Hunt of Kings Heath, but I was certainly not prepared to find myself disagreeing with 100% of it, which is the position I find myself in. It is of course regrettable that the original regulations were published late and have had to be revised. As the Secondary Legislation Scrutiny Committee has pointed out, the draft guidance is not yet available and I am sure that this would have allayed many of the fears expressed about the impact of the new regulations. However, it is clearly important that it is subject to extensive consultation and, in the circumstances, it is entirely understandable that it is not yet available.
Especially as I was heavily involved in seeking assurances from my noble friend Lord Howe on the competition aspects of the Health and Social Care Act this time last year, I want to explain some of the background to the revised regulations and why we on these Benches firmly support them. Some weeks ago, I read the original form of these regulations, and we took the clear view that they would need to be changed. In perfectly good faith, they had been too restrictively drafted and did not appear to fulfil the commitment given to noble Lords during the passage of the Health and Social Care Act last March that local GP commissioners would not be forced to put services out to tender.
As a result of our concerns, my noble friends Lady Jolly, Lady Williams of Crosby and I met Health Ministers on the first day that the House returned after the February half-term Recess to discuss the issue. It became clear that some of the problems with the regulations were due to the difficulties of ensuring that the UK abides by European law on competition and tendering; but that the language used in the regulations was, in some cases, inaccurate and in others did not properly reflect the provisions of Section 75 of the Act. Health Ministers agreed with our view that the regulations’ wording at the time could lead CCGs and others to the incorrect belief that they were required to tender for all services. They therefore agreed to work with some of us to redraft the regulations. The new regulations that have been published are a result of those discussions.
The most important change to the regulations clarifies the role of Monitor in regulating and policing contracts entered into by CCGs. The new Regulation 15(2) states very clearly that:
“Monitor may not direct a relevant body”—
that is, a CCG of the NHS commissioning body—
“to hold a competitive tender for the provision of health care services for the purposes of the NHS”.
That makes it absolutely clear that CCGs cannot be forced by Monitor to go out to competitive tender. A number of other changes have been made to clarify how CCGs should decide whether to go out to tender. In particular, there are changes to Regulation 2. This sets the overriding objectives of the CCGs when commissioning. The first and foremost objective states:
“securing the needs of the people who use the services”.
As a result of the changes agreed, Regulation 2 now makes it absolutely clear that CCGs should consider the benefits that providing services in an integrated way can have on their quality and efficiency. Bundling of services is clearly envisaged, indeed encouraged, and the BMA should be entirely reassured on this point. These objectives in Regulation 2 determine how CCGs exercise their powers, including those under the much disputed Regulation 5, which sets out the circumstances in which a contract can be awarded without a competition. Under Regulation 5, it is expressly provided that there may be only one provider capable of delivering the kind of integrated service that the CCG wants to secure for its patients, in which case commissioners would not be forced to put services out to tender.
Many people have expressed their concern that this part of the regulations would make commissioners tender more services than they do now, and this is due to the reference to commissioners having to tender services unless they feel they can be provided by only “one capable provider”. However, there are many proper and valid reasons why commissioners might feel services can be provided by only “one capable provider”. They are, for example, if the commissioner is satisfied that the local hospital needs to maintain a certain number and mix of patients to provide a safe and effective service; if only one provider is able to meet the clinical quality and safety standards required; where only one provider is capable of giving access 24 hours a day, seven days a week; where highly specialised care is involved; and, crucially, where a range of integrated services needs to be delivered. Similarly, nothing under the regulations could force commissioners to fragment services against the interests of their patients.
Moreover, the rules in the regulations simply and accurately reflect the rules that are already imposed by EU law on the NHS. These rules were put in place long before the coalition came to power in May 2010. Procurement guidance for PCTs issued in March 2010 under the previous Labour Government—here is the cover of that PCT procurement guidance—had to conform with it and as result stated, inter alia, in paragraph 2.24 that:
“PCT boards must act transparently and without discrimination and be able to demonstrate rationale for decisions on whether or not to competitively tender. In particular”—
and these are the salient words—
“where the commissioner decides to procure through single tender the rationale must demonstrate that there is only one capable provider to deliver the services and, therefore, that could provide better value for money”.
Incidentally that wording was repeated word for word in subsequent guidance in July 2010. I urge your Lordships to compare that wording with the current Regulation 5. The fact is that the criticism and concern directed at Regulation 5 could equally well have been directed towards the Labour Government's guidance, which, I must emphasise, was the guidance on the procedure and law applicable to PCTs when tendering. In fact the changes to the original regulations ensure that the new rules allow as much discretion as possible within existing EU law. Indeed, CCGs are now in a stronger position than PCTs were under the 2010 Labour Government guidance. The chief executive of the Association of Chief Executives of Voluntary Organisations, Sir Stephen Bubb, has said:
“These regulations will enable charities to do more in partnership with the NHS, not less, and the result will be better services for NHS patients. The regulations should be passed, without falling victim to another political slanging match, so that NHS commissioners and charities can get on with the job of improving the health services made available to the public”.
I also urge your Lordships to read Department of Health legal opinion, which makes the position absolutely clear.
Lord Warner
My Lords, I would like to reassure the noble Lord, Lord Clement-Jones, that I will be speaking in this debate. I oppose the Motion in my noble friend’s name. He will not be surprised by that, although I know that he hoped that I would have more pressing engagements elsewhere. I should declare my registered interest as an adviser to two companies.
I begin, briefly, with some context in which these draft regulations sit. Much of the comment and briefing that I and, I suspect, some other noble Lords have received has an underlying assumption that, somehow, competition is bad for NHS patients. It would let in what are usually described as slightly distasteful people called private providers and should be prevented at almost any cost. Much of that seems to overlook the legal procurement framework that the NHS operates within now and within which it operated when I was a Minister some years ago.
The NHS has to operate within the terms of EU competition law, with certain constraints related to clinical services. NHS bodies operate under a set of process rules in how they conduct procurements. There are regulators that patrol the territory of competition with jurisdiction in relation to the NHS, namely the Office of Fair Trading and Monitor. That is not new. It is not a nasty invention by the coalition. We can get all fanciful about it but it has been around for some time. We may not like it, we may prefer it to be different, but that is the legal context in which the NHS has had to operate for some time.
I would argue—this may be rather uncomfortable for some of my colleagues on these Benches—that this contextual framework makes any persistent attempt to make NHS providers preferred providers, irrespective of these legal constraints, profoundly anti-competitive. I believe that it is vulnerable to successful legal challenge. We got quite close to that before the 2010 election. This set of contexts in which the NHS has to operate means that we have rather a complex area for NHS commissioners to operate in. They need a clear set of rules to guide their conduct on procurement and competition, and that is provided for in Section 75 of the legislation, which we passed after a great deal of discussion and debate. That is the context in which these draft regulations are being prepared.
They are also operating in another important context, one in which the NHS itself faces enormous financial and clinical challenges over the rest of this decade. It was the Public Accounts Committee under a Labour chairman that made it very clear that virtually every NHS trust was financially and often clinically unsustainable in its present form. Change is absolutely inevitable within the NHS, whether we have these regulations or not. A massive programme of service reconfiguration awaits the NHS to meet the unavoidable fiscal, demographic and morbidity challenges it faces. In the past two months, two acute hospital trusts have gone bust, and in my view another 20 may be well on the road to the same fate. The idea that we can somehow solve these problems without an injection of new providers with some new ideas and some better management techniques is fantasy.
Lord Hunt of Kings Heath
I am most grateful to my noble friend for his enormously helpful speech tonight.
Lord Hunt of Kings Heath
I am delighted and I look forward to making further interventions. My noble friend and I very much agree on the need for a massive reconfiguration of services. We have argued that this needs to be done from the centre with authority and vigour, but what does the noble Lord say to the interventions of the OFT and the competition panel into perfectly sensible reconfiguration proposals? Does he not see that that is entirely consistent with the general direction in which the Government wish to take us, whereby in essence they are saying that the integrity of the marketplace is more important than reconfiguring these services?
Lord Warner
I am not prepared to second-guess the OFT before it has done its inquiry into this set of arrangements. I cannot see the point of having regulatory jurisdictions such as the Office of Fair Trading and Monitor if, every time they do something some of us disapprove of, we jump in and tell them they are out of line in undertaking that kind of investigation under the legislation on competition as it stands today. I am not prepared to engage with my noble friend in a discussion about whether the OFT has behaved reasonably. I would sooner wait and see what action it takes to investigate these arrangements, and that is the position that most of us had to take when these things happened while we were Ministers sitting in the same place as the noble Earl, Lord Howe, is today. We have to be a bit more statesmanlike about some of these things.
In the UK, we seem to prefer a situation in which we bail out what are in many cases public monopolies. We seem to forget that in our sister organisation of adult social care we have had a mixed economy for nearly 30 years, and that local government has quite amiably—
Lord Warner
It is not a separate issue because there is considerable overlap between those who are providing adult social care from outside the public sector and those who operate in the NHS market. They are very often the same providers. It is that market in social care that in this country has built and run a whole nursing home sector because the NHS turned its back on nursing home provision more than 30 years ago. It turned its back on providing a pattern of services that might have been relevant to today’s needs. Alongside the NHS we have a market-driven service—and very soon we shall probably be discussing something called the care and support Bill, which I and a number of noble Lords have been considering on the Joint Committee. The bad news for some is that within that legislation are some provisions for market-making, and that is the term that was being used in adult social care. Even as we speak, the Local Government Association and the Department of Health are enhancing the skills of local government in market-making in this area. However, the NHS does not seem to want to play in that game. It does not seem to want to pursue—
Baroness Young of Old Scone
I am afraid I cannot resist interrupting. Does the noble Lord’s pride in the social care market extend to the number of fairly large companies that have either almost gone bust or indeed have gone bust in the social care market in the past 12 months, or indeed to the failure of a considerable proportion of the social care market to deliver standards that are acceptable to the Care Quality Commission? I wonder if the social care competitive market is actually delivering what he wants it to deliver.
Lord Warner
I do not think anybody in the private nursing home and residential care market has achieved the dizzy heights of Mid Staffordshire trust in the way they looked after patients.
Lord Warner
If we are to have a debate about whether one sector is better than another, we ought to see the other side of the coin in terms of public sector failure as well as private sector failure. Too much of the debate about this is taking place somehow with no acceptance that the public sector ever fails, and it is only all those nasty people outside the public sector who do a bad job. Even where some of these homes have failed, they are failing in a context—this is a criticism of the Government—where local authority budgets have been trimmed to a much greater extent than NHS budgets. It is not a fair comparison blithely to assume that people can go on funding care in the adult social care sector when they have not been given the resources to do so. We have a difference, but the point I am trying to make is that in an area that is analogous to the healthcare sector there has been a private, independent sector market for about 30 years and it has widened the range of services available to service users. They are much wider than what was there before.
I am always happy to have a few more interruptions, if people want, but I am going to finish what I have to say. I came here to say some things and it is important, if I may put it this way, that one or two people take their medicine on this issue.
Lord Warner
Before we all get too excited, let us look at some of these issues. In my view, these regulations only put on a statutory footing the competition and procurement rules produced under the previous Labour Government but with the addition of—
Baroness Meacher
I would simply like to ask the noble Lord, Lord Warner, whether he has any interests in private sector provision and, if he does, whether he would like to declare them to this House.
Lord Warner
If the noble Baroness was listening, I think I declared my registered interests at the beginning of my utterances. She is very welcome to look at the register, which will show those particular interests, but they do not shape my view. I would like to finish the argument. If noble Lords want to go on interrupting me that is fine, but I would like to finish the arguments which substantially substantiate the case for accepting these regulations.
As I was saying before I was interrupted, these rules are very similar to the rules produced under the previous Labour Government but with the addition of some sensible provisions on integration. Let me remind colleagues that these regulations are totally compatible with the policy of using the independent sector in the NHS set out in the 2005 election manifesto of the Labour Party. Some may recall that Labour won a third election on the trot with that manifesto. I also remember, as a Minister, implementing the NHS parts of that manifesto with a policy of “any willing provider”. Many of the interests opposing these regulations look remarkably familiar to me from those days.
Even in the swashbuckling new Labour days of modest NHS competition, most PCTs’ contracts were rolled forward each year under that regime without any tendering process, competitive or otherwise. My guess would be that there were probably somewhere of the order of 50,000 of those contracts each year. It would have been totally impracticable and unnecessary to put many of those out to competitive tender each year, or even every three years. It will be the same with the 211 clinical commissioning groups. They will not be able to put out to tender on any great scale a large number of contracts, and they will be operating with a smaller number of staff than the PCTs.
The clinical commissioning groups will have to concentrate their change efforts on those services where there is continuing failure or underperformance, or where it is clear that there is a bigger prize of patient benefits from a major overhaul and out-tendering of services. I suggest that it is almost a paranoid fantasy to suggest that David Bennett and Co. at Monitor, with about 40 staff working on competition issues, will be able to act as a kind of Stasi outfit, rounding up clinical commissioning groups which have not recorded enough competitive tendering processes.
I am afraid that I have to disagree fundamentally with many of my colleagues. My sympathies are with the Minister over these regulations. He has done his best, in his customary patient way, to clarify them. In my view, they are perfectly acceptable in their present form and can always be amended in the light of experience. To my colleagues on these Benches, I would say that we ought to remember what was satisfying to the British public when we were winning elections. This approach of injecting, on an agreed basis, some measure of competition and change where NHS public providers are consistently failing is in the best interests of patients.
Lord Owen
My Lords, the noble Lord and I served together in the Department of Health many years ago, and he will remember that his then boss, Barbara Castle, warned in the 1975 referendum about the impact of the European Economic Community, as it was then called. I thought she was greatly exaggerating the challenge, but it was interesting in that campaign that the allegation that the European Economic Community contained within it the capacity to interfere in the National Health Service was specifically denied.
As I understand the last two speakers, a great deal of justification for this regulation comes from an obligation under EU legislation to go in the direction that we are presented with—competitive tendering, potentially in all aspects of NHS care. Why is this not being done in Scotland, Wales and Northern Ireland, all of which are in the European Union and all of which ought, if this is so compelling, to be under this obligation? Why is it not being done in Finland, Denmark and other countries? Why was specific provision made in the European Union for people to exempt publicly provided services? Why did successive Governments argue that the National Health Service was not going to be covered by EU legislation?
The last speaker’s intervention was painful for many of his colleagues on the Labour Benches, and it is probably right that we should be discussing, as has been already suggested, the 2010 regulations as they affected PCTs. Were they driven by EU legislation? The Minister knows that I tried to get from him through a freedom of information request the advice on which the Government’s legislation was founded, because I felt that we were not being told the truth behind our relationship with the European Union. It was very difficult to hold this debate without knowing the actual legal advice. I hope we will get that. I do not want go too far into all these issues in this debate, but underneath it there is a fundamental question. The National Health Service, as it was conceived, had a substantial element of public provision within it. There then came the provisions of the internal market, which I thoroughly supported and have always believed was necessary. Doctors had to be more conscious of costs. The whole health service had to be aware that it was making considerable economic decisions, often involving budgets of millions of pounds. There had to be a mechanism for cost comparison as a simple measure of good management.
In this regulation we are presented with the full impact of the 2012 Act. It has been hitherto denied, but within this Act is the potential—and I agree somewhat with the remarks that it will take some years for it to evolve—to have a fully marketised National Health Service. If that is the choice, the people of this country should be told about it. They should know that this is the direction in which we are going.
I will now deal with the regulations. We have had the fiasco in which our own scrutiny committee on statutory instruments has been highly critical not just of the statutory instrument that has been withdrawn but of the present one. The committee has also felt that the regulations have not been understood and have had sufficient consultation. We do not even have the consultative document, which we are told is so important, in front of us today. Maybe that is a good thing because it focuses our mind on the legislation. What is the law? That is why subsection (5) is so difficult for many people.
Let me say here what Help the Hospices and Marie Curie Cancer Care think about this. They say:
“The Regulations as they are currently worded will mean that competitive tendering could become mandatory in all but the most exceptional circumstances”.
I stress the word “could”. We cannot leave this as an open question. They say:
“Given the burden of having to put each individual service out for tender”—
which has been mentioned—
“CCGs will tend to bundle services together to put out for contract, as currently happens in local government”.
Quite apart from the fact that the comparison between local government and the NHS does not stand up for one moment, they are right—this, again, has been said—that bundling will take place. The problem for charities and for small funded organisations is that if contracts are bundled, this could put them out of the reach of the voluntary sector providers, which by their very nature are providers of specialised care—unless they are going to be embraced by the bundled commercial companies, and many people think that that is the direction in which we are going.
The charities say:
“If voluntary sector providers are forced out of the market then this could have a negative impact on patients and the communities they live in”.
Most of us have heard of the hospice movement in our localities, which has brought about a massive change in attitudes in the health service that has been very beneficial. Most of us have also had experience of the effect and the value of the Marie Curie foundation. Are we seriously just to ignore these charities when they come forward with these views? Are these changes politically motivated? Are they driven by some ideological persuasion? Are they committed to what was being experimented with in 2010, 2012 and now 2013? We are warned by many professional people, particularly public health doctors, of the effect of these changes.
We have looked at the NHS over many years and pride ourselves on it. It is not perfect, it never was, but it still provides a hugely cost-effective rationed health service and is popular. Why is rationing popular under the NHS? One reason is that it is democratic. People feel that in the general sense it is fair. However, we are now being asked to put all these decisions to an unelected quango. We are now accompanied by a letter that tells us when we can expect to get answers from Ministers and when we will have to have answers from quangos. Is this a change in the NHS? You bet it is. Is this the health service that Aneurin Bevan conceived of? Is this the idea that I thought the Labour Party was wholly, absolutely and totally committed to?
The charities go on to say:
“The problem hinges around the use of the word ‘capable’ in Section 5 of the Regulations”.
They are right to say that. They fear that,
“‘capable’ will be interpreted narrowly to mean only that a provider is able to provide the service within the budget set out by the commissioner. This means that … There will be few if any services where there is only one capable provider … Providers will feel confident to regularly challenge CCGs’ commissioning decisions … Without legal cover to award contracts without advertising, CCGs will simply put all services out to competitive tender to avoid challenge”.
Lawyers in this area tell me that of course they should be opposing this legislation, but in terms of their own financial development—the income that they are going to get—they are of course wholly in favour of it. Consultancies in healthcare are straining at the leash in the United States to come over here and make profits that they cannot make even under some of the HMO arrangements in the US. For 18 years I was on the board of a massive healthcare company in Chicago, and it used to watch the NHS. My wife is American, and she still thinks the NHS is the best thing that she found in coming to this country.
I warn this House: do not think that this is a minor step. If this goes through, the NHS as we have seen it, believed in it and persuaded the electorate that we support it, will be massively changed. It will take five, 10, 15 or maybe 20 years, but unless we pull back from this whole attitude there will be no National Health Service that any of us can recognise, and tonight I feel one feeling only: overwhelming sadness.
Lord Turnberg
I am delighted to be able to follow the noble Lord, Lord Owen. He puts his finger on it. It is hard not to think that we are coming up against some rather polarised views lying behind this debate about how far we can go with the use of private providers in the NHS. On the one hand there are those who believe that private providers will drive up quality and efficiency by the competition that they introduce, and on the other those who see private providers in it for the profit that they will make from the NHS.
Clearly I cannot go into this tonight but I want to say two things. First, we have an NHS for which everyone pays through tax for the common good and which distributes resources to those who need it so that society as a whole can benefit. By opening up the NHS to private companies we are increasingly using that taxed income to provide for, among other things, their profits. When we go down that route we have to be sure that we are getting something that is worth while for society and that we have the balance right. Secondly, I have the feeling that instead of the welfare state, to which we are all signed up, being regarded for the common good, it seems to be increasingly regarded, in some quarters at least, as a cost to society and an onerous subordinate to economic policy. This is not a debate for today, although we need to have that sort of debate. It does, however, colour my views about this contentious set of regulations.
According to the wording of Regulation 5, as we have heard, commissioners are legally obliged to go out to tender unless they are satisfied that services can be provided only by a single provider. Despite the reassurances by the Minister and his colleagues, the wording here is so unambiguous that a number of distinguished lawyers tell us that there is no way out of having to tender for everything else. The fact that the Government’s lawyers are able to come up with a different conclusion, as I am sure the Minister will tell us, suggests at least that there is room for confusion and for something that would have to be tested in the court, and no doubt the courts will pray in aid the EU competition law.
I am most concerned about the problems that this tendering process will cause, as are the many organisations that have written to us. For example, if we look at where the most severe difficulties lie in the health service and try to think what tendering from a variety of providers might do to resolve them, we come up against a major barrier. It is in the care of the elderly, of those with long-term multiple illnesses and of those with mental illnesses that we are clearly failing in the NHS. Yet those are the services that private providers as well as insurers are least likely to want to take on. They are much more interested in aspects of care that come in neat packages—short-term items such as cold-planned surgery or investigation that are readily costed and charged for. But these are the sorts of care that by and large the NHS is pretty good at. It is here where the cherries lie and which private providers will try to pick, leaving longer-term care for the less glamorous, chronically ill elderly and the mentally ill to the NHS. It is not a future that many in the NHS are likely to welcome.
This says nothing about the administrative costs of this tendering and contracting, which will not be trivial. It says nothing about the barriers that it will throw up to the integration of care across several disciplines, which is already quite difficult to achieve. Will multiple providers make it easier or more difficult for integration? I cannot see it.
For these and the many other reasons that other noble Lords have raised, these regulations are a distraction designed to maximise private sector involvement and leave far too little room for commissioners to be sensible and flexible in their approach. They should be removed entirely, and if that is not possible they should be reworded to make it absolutely clear to commissioners and everyone else that what Ministers are telling us is also written clearly on the tin.
Lord Howard of Lympne
My Lords, I declare my interest as chair of Help the Hospices, and in a moment or two I shall put the remarks of the noble Lord, Lord Owen, in context. However, I shall begin by correcting a report that appeared in the Financial Times last week, which said that Help the Hospices and other charities regard these regulations as a fresh attempt to privatise the National Health Service. I cannot speak for the other organisations, but that is not the way that we at Help the Hospices look upon these regulations.
The original regulations gave rise to considerable concerns, and I pay tribute to the Government for being prepared to listen, to think again and to revise the regulations. The revised regulations go some considerable way towards allaying those concerns. They do not go the whole way, and the noble Lord, Lord Owen, identified some of the concerns that remain, but we believe that those concerns can be met not by annulling these regulations as the noble Lord, Lord Hunt, seeks to do this evening, but by ensuring that the guidance which the Government intend to provide removes any ambiguity and removes the dangers to which the noble Lord, Lord Owen, referred.
The noble Lord and I have long experience in different contexts of the difficulty of covering every contingency in the wording of regulations, of getting the wording of regulations absolutely right and avoiding any degree of ambiguity. The previous speaker, the noble Lord, Lord Turnberg, recognised that the Government’s legal advice was such that the fears that have been expressed simply would not arise if these regulations were properly interpreted. Monitor, which is to give the guidance that we await on the way in which these regulations are to be interpreted and implemented, has a very important role in that respect and will consult before issuing that guidance. We at Help the Hospices intend to take full advantage of the opportunity which that consultation affords to ensure that Monitor gets the guidance right, removes any ambiguity and ensures that any lingering concerns that we may have do not turn into reality.
It is true that the changes that are taking place in the National Health Service in the way in which we provide health services in this country pose a certain danger to voluntary organisations such as the hospice movement, but not because the Government intend to do any damage to the hospice movement, as was made clear to me and some of my colleagues from Help the Hospices when we had a meeting with the Secretary of State very recently. The danger lies in the law of unintended consequences, so it is right that we should be vigilant to ensure that those unintended consequences do not damage hospices that do such wonderful work and provide such remarkable care to those who are near the end of their life and benefit from the care that hospices provide. I am satisfied that that danger in this context can be averted by sensible and proper guidance from Monitor, and I hope that at the end of this debate the Minister will give the House some assurances about the nature of that guidance which will put to rest any lingering concerns that might exist.
Lord Walton of Detchant
My Lords, I shall speak briefly because I am faced with a major dilemma, not least because of the high regard in which I hold the two principal protagonists speaking on opposite sides of this debate. In this bout of unarmed combat, we have in the red corner the noble Lord, Lord Hunt of King’s Heath, a former chief executive of the National Association of Health Authorities and more recently director of a foundation trust, whose contributions to health matters in this House have been in every way outstanding. In the other corner we have the noble Earl, Lord Howe, who, without a scientific background or training, has demonstrated in opposition and in government a most extraordinary breadth of knowledge, interest and capability, invariably tackling issues relevant to health with courtesy, knowledge and authority.
I have received a veritable torrent of correspondence from organisations and individuals, many of whom I respect and know personally. These organisations include at least three royal colleges and the BMA, of which I have the honour to be a past president. Almost all of these letters have suggested that these regulations would result in compelling commissioners to put all health service activity out to tender—in other words, they would result, as has been suggested, in the ultimate privatisation of the entire National Health Service. Having studied these regulations with great care, I find it exceptionally difficult to see how they could conceivably come to that conclusion.
I am a firm believer in and supporter of the NHS, in which I am proud to have spent the greater part of my professional life. If I felt that that case had been made and if I felt that the regulations would result in privatisation of the NHS, I would unhesitatingly vote for their annulment. But having studied the regulations, I do not believe that that is the case. I have never made any secret of the fact that I believe that a component of contribution by the private sector in the NHS, properly considered, controlled and approved by Monitor, can make a very important contribution to healthcare if it is in the interest of patients. I am satisfied from the debates we had during the passage of the Health and Social Care Act that there is an obligation on any private provider contributing to NHS services to maintain, approve and provide all the facilities that the NHS already provides for education and training of healthcare professionals and contributing to research. I am satisfied that that remains the case. Paragraph 7.5 of the Explanatory Memorandum to these regulations says:
“Regulation 5 provides for commissioners to award a new contract without a competition where there is only one capable provider. There has been no change in policy from the requirements of the Principles and Rules for Cooperation and Competition and the supporting procurement guidance”,
guidance which was established under the previous Labour Government. I find that immensely reassuring. Paragraph 7.6 says:
“The 2012 Act has established Monitor as an independent regulator … with a duty to protect and promote the interests of people who use health care services. Part 3 of the Regulations provides for Monitor to investigate potential breaches of the requirements and to take action to ensure that patients’ interests are protected”.
I could say very much more but I am satisfied, after the most earnest and careful consideration, that these regulations do not produce the prospect of privatisation of the NHS.
I am involved with many medical charities and I learn also that the role of charities can be enhanced. They can under these regulations make more contributions than they already do to the work of the NHS. For these reasons I strongly support the regulations.
Baroness Williams of Crosby
My Lords, it is for me a great privilege to follow the noble Lord, Lord Walton of Detchant He made an astonishingly wise and helpful contribution to debates in this House on the Health and Social Care Act. I found myself in exactly the same position as he was in. I have a total commitment to the National Health Service. That has not changed in any way. In my whole life none of my family has ever used any other medical service. But I cannot find in the most careful reading of the regulations and our long debate on these two sets of regulations anything that bears out the widely spread view—extensively spread by the social networks—that this is all about bringing to an end the National Health Service as a public service and introducing overall privatisation.
I will quickly say three things. First, the Liberal Democrats intervened immediately when we saw the first set of regulations, laid on 11 February and promulgated in the House on 13 February. We did not like them at all. The day that the House came back, my noble friends Lady Jolly and Lord Clement-Jones were at the Minister’s door, asking him to see us that same day. Although there were widespread press discussions about how the campaigners and the Opposition had essentially stopped the regulations, it was not true. At the end of that discussion on 25 February, the day that the House came back, the Minister had listened closely to everything that we had to say and agreed at the end that the regulations could be misunderstood, and that there was therefore a strong case for looking again at making them clearer.
Lord Hunt of Kings Heath
My Lords, I do not understand that. Clearly, if a CCG decides that a potential contract meets the single provider test in regulation 5, for instance, a disappointed provider can go to the courts in any case.
Baroness Williams of Crosby
In this particular set of regulations we are giving statutory underpinning to Monitor in a way that will mean, as it did previously, a much greater opportunity to deal with most objections on the spot and not have them carry on into the courts at great expense to the taxpayer and to patients. If we turn it down tonight it will leave us without that structure altogether and we will go back to where we were.
In conclusion, while I have very strong sympathy with the view of the noble Lord, Lord Owen, that the National Health Service of the 1980s was a more true state service than anything today, I am afraid we cannot go back; we are where we are. The best thing we can possibly do is to make patients’ interests the very centre of what the NHS is all about and to recognise that this new route is the way we are going. It could, however, be very exciting and it would lead to a very much more accountable NHS than we have had in recent years.
Lord Davies of Stamford
We have had a very thorough and memorable debate on this important subject, and that is not a bad thing. It is striking that the House should be so full on this occasion, because the NHS is very close to all our hearts and to the hearts of the whole of this country. We had a very powerful speech by the noble Lord, Lord Owen, and against that we have had attempts by a spokesman on behalf of the coalition, and by the noble Lord, Lord Walton, to whom we always listen with great respect on these occasions, trying to reassure us that things are not quite as alarming as they appear to be—not quite as alarming as the BMA, which the noble Lord, Lord Walton, once presided over in a very distinguished fashion, appears to think.
Before we accept those blandishments and reassurances, we need at least four very specific assurances from the Government tonight. One is on the matter very well raised by my noble friend Lord Hunt. Clause 5 is extremely weak in providing any protection against the absoluteness of the requirement for CCGs to go out to tender. It simply says that they do not have to do so if in fact there is no other party able to provide the relevant service. As the noble Lord, Lord Hunt, very clearly said—and he is absolutely right—in a large urban area such as London or the West Midlands, there will always, or almost always, be somebody else who is technically capable of delivering the service, so that is extremely weak protection. I am not very reassured by what the noble Lord, Lord Walton, said on that subject. It is no use saying “We’ve got guidance”. We are now passing the law, and guidance cannot override the law. What is more, when we have changed the law you can be absolutely certain that an awful lot of lawyers and some very aggressive companies will be waiting to use this law to try to force open a business opportunity.
Lord Mackay of Clashfern
Can the noble Lord say what sort of clause he proposes instead of Clause 5 that would be consistent with the European legislation and the regulations made here under the previous Government in implementing it?
Lord Davies of Stamford
I am in favour of scrapping all these regulations completely and simply voting them down tonight. That is my simple answer. I put the onus on to the noble Lord—if he can come up with a suggestion which reassures me, so much the better.
My second concern is over the future of networks. I was lobbied over the weekend by one or two doctors in Lincolnshire and I undertook to speak about this matter. One of them served as a junior doctor in Newcastle under the noble Lord, Lord Walton, and was full of affectionate and very admiring memories of the way in which he ran his department. Nevertheless, those doctors are deeply concerned—as are so many across the country—about the impact on networks. We have all read the handouts and papers from the BMA on this subject. I notice from the way in which the regulations are drafted that the protections regarding networks and integration in Regulations 2 and 3(4) in no way override the requirement in Regulation 5 to go for tendering. That is not a sufficient protection. They simply say that there is one criterion, and that is not good enough. If the Government want us to take these regulations seriously, I expect them to provide some specific reassurances on that.
My third concern is this. We all know that the ratio of fixed to variable costs in healthcare is extremely high. To use a technical term, the operational gearing of healthcare, particularly in the secondary sector, is very high. That means that if you take out any particular activity from a general hospital, the existing overheads will then fall on a reduced range of activities and therefore a reduced range of revenues. So you will make unviable—or are likely to make both financially and possibly technically unviable—other services which are being delivered in that particular hospital.
Under these new regulations, will it be possible for a CCG to take the view that it does not want to tender either service, which, if it took it away from the existing provider, would make that provider unviable not merely for that service but for the whole range of services currently being provided? In other words, will it be possible for a CCG to take the view that it is not in the interests of the patient in that particular area to run down or destroy a local hospital or a local unit? Will the regulations provide any protection for a CCG which, in the public interest, decides not to tender out for that particular purpose?
My final concern is one on which, again, I should like a specific reassurance from the Government—it can be in a yes or no form. We live in an international digital age. We know that medical services, even remote surgery, can be provided not merely here but anywhere around the world. If electromagnetic waves travel at speed c, that merely means that you have something like a 20th of a second delay if you are operating from India. A 20th of a second may not be crucial to that operation in terms of security.
Therefore, we may well face the possibility of tendering out services all around the world. It may be that a CCG will quite legitimately decide that the Massachusetts General Hospital is the best place to go for a particular type of surgery. That is fine but, again, if a CCG decides—or, more likely, if the national Commissioning Board decides—that it is in the interests of this country to keep a capability here, will it be protected in taking that decision against Monitor or against the competition laws which will then operate?
An even better example, perhaps, than remote surgery is imaging. Whether it is computerised thermography, ultrasound or magnetic resonance, these things can be read anywhere around the world in real time 24 hours a day, seven days a week. It may well be that very good offers will come in from India to provide this particular service. In those circumstances, if we went for those offers in a particular region—perhaps in the whole country—we would not have any radiologists left at all. They would all have gone somewhere else in the world. Will the national Commissioning Board and the CCGs be protected if, in the interests of keeping what they regard as an essential capability in this country, they decide that it is not appropriate to tender out a service or to accept a tender, however financially and technically attractive that tender might be?
Baroness Hollins
My Lords, I begin my comments by reminding the House that I am the current president of the BMA and a psychiatrist. The matter we are discussing this evening has been one of the most controversial aspects of implementation of the Health and Social Care Act. We are in a rather unusual situation, debating regulations that have already been subject to revision, following widespread concern about their intent and the strength or otherwise of ministerial assurances. This is remarkable. However, the opportunity has been afforded to us tonight to rehearse the issues once again and to ascertain why there is continued unease about these regulations. It is worrying that these concerns have not abated, despite repeated assurances from the Government during the passage of a Bill that we spent so many hours debating and further assurances received since the regulations were laid earlier this year.
The regulations are intended to ensure good procurement practice, as required by the 2006 EU directive and subsequent case law. They are substantially the same as those that were in place prior to the 2012 Act, which had the status of declaratory guidance and should have been enforceable in the courts. Will the Minister tell us how many legal challenges have been made since 2006 and how many organisations have deferred court action pending Monitor’s new powers? Will he also confirm that in future Monitor will provide regular reports on the scale of legal challenges and on their outcomes? The new regulations have the effect of binding the new clinical commissioning groups into the existing legal framework. This reminds us that the NHS of 2006 was a rather different organisation from today’s NHS, which is evolving rapidly after the radical changes of the Health and Social Care Act 2012.
Baroness Cumberlege
My Lords, I start by declaring an interest. My interests are in the Lords’ Register, but I particularly want to declare the two companies which I control, run and support. They do not provide treatment and care to the NHS, but they do provide training opportunities to NHS staff. I am also involved with a number of charities and voluntary organisations. I think that the Health and Social Care Act offers huge opportunities to the NHS. In this country, we have so much good will, so much talent, so many skills within the NHS but also without the NHS, in voluntary organisations and in the independent sector.
The noble Lord, Lord Warner, talked about 30 years of experience in social care. The NHS is no stranger to competition or how to handle it. Would-be doctors compete for medical schools. Qualified doctors compete for the very best jobs within the NHS. NHS hospitals compete with private practice for consultants’ time, and they also compete with non-healthcare employers to retain nurses. GPs have partly competed for NHS patients since 1948, and so have hospitals since 1991. Companies compete to provide the NHS with new medicines and diagnostics, NHS researchers compete for grants, and the NHS competes with schools, prisons and the armed forces for public funding. So I make the point that competition in the NHS is not only long-standing, but it is actually inevitable.
Baroness Kennedy of The Shaws
If I may, I point out to the noble Baroness that competition of course exists in all parts of our lives. There is something different about competition when profit is one of the considerations, and that is what concerns the public here. The concern is that we are talking about people making a profit who are offering to do so by cutting things to the bone, and competing with others whose commitment is public service. That is what concerns people.
Baroness Cumberlege
My Lords, we could have a whole debate on profit. Every person who sells their talents and does work has to profit. You cannot live without a profit unless you are receiving social care. Profit, of course, funds all our pensions, and a whole lot of other things—but I do not want to go into all that, because I think it is irrelevant to this debate.
I think that we should just look at what the private, independent sector does at the moment. South London, a very stressed area, has had a lot of problems with hospitals not having enough capacity. The Labour Government introduced urgent care centres, and they were introduced into south London. It is interesting to see that the regulator, the Care Quality Commission, recently described the service as first class; it is open seven days a week, from eight until eight. Better still, it was described by one of its users as the,
“best NHS experience I have ever had in my life”.
I am sure that that person was not only right about the experience but right that, whoever provides the service, it is the NHS—for it is the NHS that has paid for it through a contract. So privatisation is not about the provider; it is about reaching into your wallet to pay for the service for which the state should pay. That is the fundamental ethic of the NHS.
In southern England, an independent provider has ensured that 99% of target patients are screened for breast cancer, which compares with the national average of 77%. The provider also invested £4 million in new technology for outreach services. My third example—and I could go through lots—is in the north-east, where an independent provider of sexual health services has been able to screen 35% of 15-24 year-olds for chlamydia, which is significantly higher than the national average of 24%. It also saved commissioners money by reducing duplication across services.
Baroness Young of Old Scone
I am sorry to interrupt at this time of night, but I am conscious of the fact that the noble Baroness is citing lots of examples of where private sector provision and competition has produced good results. Is she equally aware that the Care Quality Commission had to remove two licences from urgent care providers for an inadequate service that could not be allowed to be sustained for even a few days longer after it was detected? They are not all success stories, by any means.
Baroness Cumberlege
My Lords, of course I accept that. We accept that in the NHS, do we not? You have only to look at the recent inquiries to know that the NHS is not perfect. What I am trying to put over is that by using a wider range of providers you can improve services for the NHS, but of course you need regulation and somebody ensuring that the quality is high. It is not perfect in all cases—of course I accept that—but it is not perfect in the NHS either. I do not think that any of your Lordships would not rejoice in better services that enhance patient care being provided. That is what we are all about. My view is that competition involves not a yes/no ideological choice but a pragmatic and nuanced judgment about how, or whether, to make use of it.
That is what brings me on to these regulations. There is much in them that will strengthen the NHS. I do not want to see them annulled or to see another delay. The NHS has been in something of a difficulty with all the changes that are being made, and it is now time to settle down and get on with it. So I do not want to see further delay. On the detail of the regulations, first and foremost I think that Regulation 2 of Part 2, which sets out the procurement objectives, is very good. It says—and I paraphrase a little—that NHS England and CCGs, when procuring healthcare services, must consider the needs of the people who use the services. So it is not about the staff but about the needs of the people who use the services.
There is a lot of rhetoric, as there has been for years, about putting patients first. However, we know that that rhetoric is not always put into practice. Again, I refer to some of the recent inquiries that we have had. In fact, we should be very concerned, as is the King’s Fund, that the UK has the second highest rate of mortality amenable to healthcare of 16 high-income countries. We should be deeply worried that we have the second highest death rate among those comparable countries. The NHS does need to change and improve. The think tanks and the people who think endlessly about the NHS all agree that it needs change. The Labour Party agrees that it needs change. The debate is about how to do it.
Regulation 2(b) refers to,
“improving the quality of the services”,
as the purpose of the legislation. Surely that is what we all want. Poor care is very expensive. It involves returning to hospital to put right what has gone wrong in the first place, litigation, poor staff morale and misery for users, families and friends. Regulation 2(c) is about efficiency. We all have a duty to ensure that money is not wasted and services are efficient. The noble Baroness, Lady Hollins, has just talked about that and what we need to do to ensure that we have commissioners of the highest order. Surely that is what we are trying to achieve.
Baroness Finlay of Llandaff
My Lords, the hour is late and many of us are extremely keen to hear from the Minister. He took a brave decision in withdrawing the original set of regulations, and now we have these laid before us. Many people have posed questions and I hope that he will address them all head-on in his summing up. The lead question that has been asked tonight is why there is a such disparity between the centre here and how it is interpreted out there. Therefore, what will the Government do to make sure that there is no panic about challenges, that this does not become a lawyers’ charter and that integration works in the best interests of patients? Clause 2 suggests that it should take precedence over Clause 5 and that integration is key, because it will secure the best services for patients today and those of tomorrow. We have education, research and training in the Act and these also need to be secured for long-term stability. I suggest that we now need to hear from the Minister.
Baroness Jolly
My Lords, many noble friends have already addressed the main issues of the debate and I do not intend to delay the House for long. I will confine my remarks to guidance—currently in preparation by Monitor—the role of Monitor in the process, and what the effect would be if the Prayer to Annul by the noble Lord, Lord Hunt, were successful. When we had our first meeting with the Minister about our concerns, we expressed our anxiety about the language. Laws they may be, but they did not have to be impenetrable and we improved the situation with the second draft, in particular, Clause 2 and Clause 5. I thank my noble friend Lord Clement-Jones.
The key issue, which my noble friend Lord Howe picked up earlier, is that we insisted that the guidance needs to be absolutely clear and unambiguous. It is written by Monitor, but it is signed off by the Secretary of State. We said that it needed to be a product not just of Monitor’s work, but also of various stakeholders’.
It also needs to contain a worked series of case studies so that people could see how things pan out in certain situations. During the Recess, the Secretary of State and my honourable friend the Minister, Norman Lamb, met some of the stakeholders and I understand that further meetings are in hand. But, of course, there is an open consultation as well. This has meant that the guidance is not published with the regulations. That is seriously to be regretted. However, if the end result is a workable set of guidelines with real case studies, time is the price that has to be paid.
What of Monitor’s other role, that of regulating and policing contracts? Until 1 April, much of NHS commissioning covered by procurement law was undertaken by PCTs. That meant that a supplier could take a PCT to court if they lost a contract unlawfully, and seek compensation and damages. That could be a waste of time and taxpayers’ money, damaging in one way or another to patient care.
After 1 April, PCTs, which could be ordered to do anything by the Department of Health, were replaced by CCGs, which could not. If we want to continue to keep the NHS out of the courts, something needs to have the same power over CCGs in relation to procurement as the Department of Health had over PCTs. That something is Monitor.
However, Monitor is not a body under the control of the department. Instead, it is directly under the control of Parliament. Instead of the department being able to tell Monitor to continue to enforce the PRCC—principles and rules for co-operation and competition—Parliament must do it for Monitor. Thus we arrive at the furore around the Section 75 regulations—Parliament’s way of telling Monitor to enforce the PRCC within the NHS. The regulations, like the PRCC, reflect the overarching requirements of EU procurement law.
I now come to a point that was picked up by the noble Baroness, Lady Hollins. In the general debate until today, much has been made of the opinion of this or that lawyer. Often, any one lawyer gives an opinion that reflects the view of whoever instructs them. We end up with as many views and opinions as we have lawyers. Therefore, with due respect to noble members of that profession, we need to inform our own opinions on this debate.
Without these regulations, all we have is EU competition and procurement law and the courts. There is no direction about the nature of services to be commissioned, and CCGs are completely unprotected and unsupported. What the regulations are not is a signal that the NHS is up for sale. The NHS will still be free to all at the point of need.
The purpose of these regulations is twofold. First, they are a legally binding tool, along with detailed guidance, to be used by the CCGs and NHS England when commissioning the best possible services for their patients and facilitating an integration of those services—services which put patients first. The regulations enforce that patient care is about competition and they outlaw cherry picking and vested interests. Secondly, to put it bluntly, they are to keep the NHS out of the courts. When we decide whether to support this Motion or not, those two conditions are precisely what we would do well to keep in mind.
Baroness Masham of Ilton
Could I ask the Minister just two questions on behalf of patients? I had a postcard today from someone whose mother was a Minister in your Lordships' House. She has had cancer twice, so values the skills of the NHS. I quote from the postcard. It states:
“I honestly believe patients will suffer if all services have to be put out to tender. This wastes valuable medical professional time and removes patient choice”.
I would like to ask the Minister, will patient choice be dispensed with? There are many concerned people. I hope their fears will be allayed tonight. The other question is: will this regulation become a gift to lawyers?
Lord Adebowale
My Lords, I will be brief. I have sat through this debate patiently and I understand the impatience of the House to hear the Minister. I should declare my interest. I have listened to the debate very carefully as a non-executive director of NHS England, the chief executive of a not-for-profit provider of health and social care services in partnership with the NHS and as a board member of a small private company that provides services to the NHS.
I just want to say a couple of things. First, I am absolutely committed to the NHS. My mother was a nurse for 30 years. Listening to the views of the House, it would be possible to slip into a pit of despair having heard the descriptions of the dystopian future that awaits us all if either side of the argument is accepted whole-heartedly. The truth probably lies somewhere in the middle.
However, in reference to the issue of guidance, it might be worth the House hearing that NHS England and Monitor are working in partnership to develop a choice and competition framework. Guidance is important; it is not just the law, but how it is interpreted. The statement that NHS England and Monitor have made points out clearly that: patients and their interest come first and the use of competition must be in patients’ interests; the use of competition must be based on evidence, not ideology, and it is the evidence of what will improve outcomes for patients that matters; commissioners will decide when to introduce competition beyond patients’ rights to choice set out in the NHS constitution—something that not many people have mentioned during the course of this debate, but which has a huge impact on its outcome; where there is poor performance there is an expectation that commissioners will use all the tools available, including competition where that will improve outcomes for patients; and there is a need to strengthen the evidence base further on the potential benefits of introducing competition.
Given that some of the concerns associated with the regulations are about how they will be interpreted and applied in practice, do the Government believe that the regulations are consistent with these principles of how competition should be used in practice and as set out in the agreement between NHS England and Monitor?
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we are debating a set of regulations on which, as we have heard this evening, a great deal of passion and a large quantity of printers’ ink has been expended over recent days and weeks. I would like to begin with three very simple statements, which I hope will be helpful as mental marker posts before I respond to the concerns and questions that have been raised.
First, amid the many changes that the Government have made to NHS commissioning, one area of the law that we have not changed one iota is the law relating to competitive tendering. That law has been in place for a number of years. It has been governed by a European directive, and as regards the rules that govern NHS procurement, these regulations usher in nothing new at all.
Secondly, there is no government agenda to privatise NHS services—quite the contrary. The House may remember that we made it illegal in the Health and Social Care Act for the Secretary of State, Monitor or NHS England to have a policy of deliberately favouring the independent sector.
Thirdly, it is NHS commissioners and no one else who will decide whether, where and how competition in service provision should be introduced. These regulations do not confer any obligation on commissioners to create or promote markets, nor do they require commissioners to unbundle or fragment services against the interests of patients.
I begin with these simple statements because they are key to understanding what the Government are doing and what they are not doing. What we are doing, above all, is having a set of arrangements in place that will protect the interests of patients. The basic purpose of the regulations is to prevent commissioners failing to think about how the needs of their patients can best be met. Equally, their purpose is to ensure that commissioning in the NHS is protected from abuses arising from conflicts of interest or anti-competitive behaviour that works against the interests of patients. There is no encouragement in these regulations, explicit or implicit, to commission services from the independent sector, or indeed any other sector. The regulations enshrine the principle that patients must receive services from the providers, from whichever sector—public, private or voluntary—that are most capable of meeting their needs and improving the quality of services that they receive.
Mechanisms to make sure that this happened were put in place by the previous Administration. These mechanisms consisted of the Principles and Rules for Co-operation and Competition, which were overseen by the Co-operation and Competition Panel. Now that primary care trusts no longer exist, we need to carry over those arrangements so as to apply them to clinical commissioning groups. The Government committed, in their response to the NHS Future Forum report, to maintain the previous rules and place them on a statutory footing in order that they could continue to apply to commissioners. That is exactly what we have done; the panel has been transferred into Monitor, so that there is absolute continuity in how the rules will be applied.
This is a key point for noble Lords to understand. Monitor is now the sector-specific regulator for the NHS. In practice that means that it, not the courts, will be the guardian of patients’ interests and will adjudicate if allegations of anti-competitive conduct arise. In effect, it will act as a firewall between commissioners and the courts. If the House annuls these regulations, that firewall will disappear and I suggest to the House that this could not possibly be in the interests of the health service.
The regulations also make it clear that Monitor has no powers to direct commissioners to go out to tender, which brings me to Regulation 5(1). People who have looked at that regulation have stated that it requires commissioners to go out to tender for just about every NHS service. That is not so. It is not even remotely near the reality. First, the wording of Regulation 5 which refers to “one capable provider” is almost exactly the same as that of the previous Government’s guidance to PCTs. My noble friend Lord Clement-Jones was quite right in pointing this out. I shall now read from that guidance. It said that PCT boards “must act transparently” and without discrimination,
“and be able to demonstrate rationale for decisions on whether or not to competitively tender. In particular, where the commissioner decides to procure through single tender the rationale must demonstrate that there is only one capable provider to deliver the services”.
The circumstances in which a commissioner may therefore award a contract without a competition under the regulations are exactly the same as they have been up to now. There is no daylight between them.
It is worth my making a point about that guidance. It was not guidance that PCTs could take or leave but guidance that was declaratory of public procurement law, which applied to PCTs, so those who think that we are replacing a rather loose arrangement with something more stringent are mistaken. The law was binding before and it is binding now. These regulations are declaratory of the existing legal position, just as the previous Government’s guidance was. However, we also need these regulations to ensure that the various protections for patients and commissioners afforded by Monitor, as agreed during the passage of the 2012 Act, are in place.
We have heard concerns this evening from the noble Lord, Lord Davies, about what might happen to the unbundling of hospital services. I would like to put that misconception to rest. Elective hospital care is not relevant to these regulations. The previous Government brought in a policy known as “any willing provider” for elective hospital services. We have continued with that policy, which means that patients have a free choice between hospital providers who meet NHS quality standards and contractual terms. There is therefore no question of tendering for those services.
In the main, the services where tendering might be relevant are those delivered in the community and certain more specialised services. Again, the overarching principle to guide commissioners is Regulation 2—to do what is in the best interests of their patients. In some circumstances, tendering may be appropriate, but in many cases it will not: for example, where there is only one provider capable of providing the integrated package or pathway of services which the commissioner wishes to secure for its patients. In another situation, they may judge that only one provider is able to meet the clinical quality and safety standards that they require. They may decide not to tender where they conclude that it is necessary for services to be co-located because of the interdependencies between them—a point raised by the noble Lord, Lord Davies, once again—in order, for example, to ensure patient safety.
It is worth looking at the actual wording of Regulation 5(1), which says:
“A relevant body may award a new contract … without advertising … where the relevant body is satisfied that the services to which the contract relates are capable of being provided only by that provider”.
The relevant body has to be satisfied. This means that a commissioner needs to go through a process to make sure that it is taking sensible decisions that genuinely address the interests of its patients. In other words, it must have a rationale for what it does and be satisfied that it is doing the most appropriate thing. As long as it has that rationale, that is where the matter ends. I repeat: in those circumstances there is no one who can oblige the commissioner to go out to tender.
Those who maintain that these regulations usher in a lawyers’ charter are not looking at the evidence. The evidence to date tells us that only a tiny handful of cases have been referred to the Co-operation and Competition Panel in the space of several years. I can tell the noble Baroness, Lady Hollins, that none has gone to court. Since the rules on NHS procurement are staying exactly the same, I fail to see why we should expect a sudden avalanche of challenges to commissioning decisions.
As I said during the passage of the Health and Social Care Act, there is no requirement in these regulations or anywhere else to create markets. Nor, as I have said, is there any requirement for commissioners to unbundle or to fragment services to facilitate competition: in other words, to separate out individual services so they could be provided by a larger range of providers. The decision whether and when to create these conditions and the services to which they apply remains entirely with commissioners.
One of the arguments produced by the noble Lord for annulling these regulations is that they lack clarity, particularly Regulation 5(1). I suggest that is a specious argument. First, the law has not changed. Secondly, employees of commissioning support units, whose job it is to support CCGs in commissioning decisions, are very largely the same people who did exactly the same jobs in PCTs and are entirely familiar with this area of the law. Thirdly, there is already guidance out there, produced by the NHS Commissioning Board Authority last year. Fourthly, Monitor will be providing further guidance to support commissioners in understanding the circumstances in which single tender is appropriate, including specific case studies. This guidance will be consulted on shortly. Monitor will continue, as the Co-operation and Competition Panel did before it, to provide informal advice to help commissioners understand the regulations. We really do not have to worry about lack of clarity here.
I turn now to one or two of the specific questions that were posed in the debate. The noble Lord, Lord Owen, asked why other countries have not applied these procurement laws. All member states in the European Union have been required to transpose the EU directive on public procurement into their own national legislation. In fact, it has been applied in Wales and Northern Ireland through the Public Contracts Regulations 2006.
The noble Lord, Lord Hunt, maintained that the OFT’s role in mergers is evidence of the Government’s agenda to marketise the NHS. First, that issue is in no way related to the regulations that we are debating tonight. Perhaps I could remind the noble Lord that the OFT is acting independently under the powers conferred on it under the previous Administration through the Enterprise Act 2002.
With regard to the Competition Commission gagging clinicians in the Bournemouth and Poole merger case, I suggest that that is not relevant either. My understanding is that those arrangements are simply to prevent the merger proceeding further while it is being reviewed. They should not get in the way of providers co-operating with each other in the usual way in the interests of patients. The noble Lord said that Monitor is anti-bundling and that it would be policing the regulations at the same time. That is misleading. Decisions about whether or not to bundle services are not for Monitor to make; they are squarely for commissioners to take in the best interests of their patients, and Monitor is under a duty to enable integrated services.
The noble Lord, Lord Owen, raised concerns about charities. I have seen the brief from National Voices, Marie Curie and others in this regard. Those concerns are helpful in illustrating the point that there is no one-size-fits-all approach to the commissioning of services. It is interesting that some stakeholders have raised concerns about unbundling leading to fragmentation, while others are concerned about the effects of bundling too many services together. In practice, it is for clinically led commissioners to take decisions on whether or not services should be bundled in the best interests of patients. That is their job, and these regulations do nothing to require them to bundle or unbundle, as I have said.
The noble Lord, Lord Davies, asked me whether the regulations take into account the financial viability of hospitals and economies of scale. First, I remind the noble Lord that these regulations are not relevant to the vast majority of elective hospital services, so they do not herald the prospect of large numbers of services being hived off. Secondly, it is for commissioners to make decisions about the need for services to be bundled or co-located, as I have said. It is not in their interest to destabilise providers. Thirdly, the NHS tariff is being improved in order to ensure that it is properly reflective of the costs faced by providers. This would mean that profit-making services would no longer need to cross-subsidise other services.
The noble Lord, Lord Hunt, asked me why there is no contract value threshold below which commissioners do not have to go out to tender. Where the value of a contract is such that it would be disproportionate for the commissioner to hold a tendering exercise, there is no requirement under the regulations or the law to do so.
The noble Baroness, Lady Hollins, said that Monitor should publish figures relating to the cases that it considers. Paragraph 21 in Schedule 8 to the Health and Social Care Act 2008 requires Monitor to publish an annual report on the exercise of its functions and lay a copy before Parliament, and to provide the Secretary of State with such other reports and information relating to the exercise of its functions as the Secretary of State may require. We would also expect Monitor to publish reports on cases considered by it, as the Co-operation and Competition Panel has to date.
I of course took due note of the criticisms made by your Lordships’ Scrutiny Committee. However, I would say that there was a formal public consultation on the requirements of the original set of regulations between August and October last year. Engagement events were held up and down the country. The response to the consultation demonstrated broad support for the proposals from a wide range of stakeholders. The revised regulations did not substantially change the policy, and for that reason I suggest to the Scrutiny Committee that further consultation was not necessary.
Let me be clear about what we would lose if the regulations were not in place. The main thing that we would lose is the adjudication role of Monitor as an expert health sector regulator with an overarching statutory duty to protect and promote patients’ interests. That would mean that NHS commissioners would be exposed to the full force of public procurement law, as interpreted by the courts. I firmly believe that in that situation we would be more likely to secure the very kind of risk-averse behaviour by commissioners that some have argued today must be avoided. In addition, without the regulations, patients’ right to choice under the NHS constitution would not be protected; commissioning processes would be much less transparent and accountable; we would lose safeguards to protect against and address conflicts of interest, discrimination and anti-competitive conduct that work against the interests of patients; and requirements to ensure that the objective of procurement must always be in pursuit of meeting the needs of patients and improving quality would not be in place.
Although in one sense, the regulations can be seen as unexceptional, because they largely carry forward existing rules and arrangements; but in another sense they are more than that. They are vital for anyone who believes that the central interest that the NHS should have at its heart is that of the patient. With that observation in particular, I urge the noble Lord to withdraw the Motion.
Lord Hunt of Kings Heath
My Lords, we have had a long debate and I know that the House will want to come to a decision very soon.
I agree with the last comment of the noble Earl, Lord Howe. These are very important regulations, although there is disagreement about what they mean when it comes to practice in the field. The essential test of the regulations is whether they accord with the assurances given by Ministers during a difficult time in getting the Bill through your Lordships’ House and the other place as to whether clinicians would be free to commission services in the way that they considered best.
The noble Earl, Lord Howe, is always reassuring and was so tonight on the content of the regulations. If you read them and the comments of your Lordships’ Scrutiny Committee, you will see that that simple statement—that clinicians will be free to commission services in the way that they wish to—has been hedged in by the product of many statutory rules contained in the regulations. When it comes to Regulation 5, there is a division of opinion between the Government and the Opposition, and between lawyers, as to what the single capable provider test means. It is arguable that the health service will be confused as to whether it can define a local service as one that can be provided only by one provider, or whether, in many parts of the country, similar services will provided by different organisations within the facility of the CCG. There will be considerable doubt whether the CCG will be able to go ahead and award a contract without some competitive tender process. That is at the heart of some of this argument.
I do not accept the idea that Monitor’s involvement will somehow prevent legal action from ending up in the courts. The general confusion about these regulations will inevitably lead to cases coming before the courts. The advice that will be given to many CCGs by their legal advisers is to act defensively and to go out to more competitive tendering than the noble Earl has suggested.
The noble Baroness, Lady Williams, and the noble Lord, Lord Walton, are of course strong supporters of the National Health Service. I say to them that every day, up and down the country, a market is unfolding in the NHS. People in the NHS believe that that is happening. They are seeing contracts already being won by the private sector. They see themselves being undercut, and they worry about the fragmentation of services and about the overall intent of the Government.
Of course the NHS is not perfect but, my goodness, it enjoys tremendous public support. I have worked with the noble Baroness, Lady Cumberlege, over many years. She referred to international comparisons. I end by referring her to the US Commonwealth Fund, which produces an evaluation of the most developed health care systems in the world. Its latest evaluation placed the UK as No. 2 overall. It placed the US, where the system of markets and competition is most to the fore, as No. 7. When people look at the NHS internationally, they see a lot of things that they wish to commend, not least of which is the integration of purpose and the support from the public. My concern is that at the end of the day I think the noble Earl is right: these regulations are vital. The problem is that they hold open the door to a competitive, marketised service in which I am afraid that, despite the wording that has been used tonight, the interests of patients will be not first but last. I wish to test the opinion of the House.
Arrangement of Business
Baroness Anelay of St Johns
My Lords, I think there has been a little confusion tonight with regard to what may happen tomorrow. I know that we are getting to a particularly critical moment as we reach 10.39 pm, and I thought it might be of assistance to those who serve this House so well if I remind noble Lords of my earlier announcement with regard to Prorogation. With the Government’s business for this Session being certain, I was able to announce that the House will prorogue late afternoon tomorrow. The reason that I am not able to give a precise time is quite simply that we have to wait for the other place to complete its business. I can now speed up. We will convene at 11 am for Questions and a debate on the Maastricht convergence criteria will follow. I then expect to adjourn the House during pleasure, and we will reconvene for Prorogation in the afternoon.