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Health Protection Agency Bill [HL]

– in the House of Lords at 11:45 am on 6th April 2004.

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Report received.

Clause 1 [Health Protection Agency]:

Photo of Lord Fowler Lord Fowler Conservative 11:53 am, 6th April 2004

moved Amendment No. 1:

Page 1, line 5, at end insert "and in particular the duty of the Secretary of State to respond to its reports"

Photo of Lord Fowler Lord Fowler Conservative

My Lords, in moving this amendment, I shall speak also to Amendment No. 27.

There is no doubt that we are exceptionally well served by the Health Protection Agency. We have a team of highly skilled professionals who provide invaluable information for the guidance of governments, and I would suggest that nowhere is that more important than in the area of HIV/AIDS and sexually transmitted disease generally. We are reliant on the agency to provide an objective picture of what is taking place throughout the country, and frankly, in this kind of area, it is far easier to obtain opinions than it is to obtain facts.

There is little point in collecting such information if action does not follow. Sadly, the problem today is not the collection of the evidence or facts. The problem is the half-hearted response of the Government to that evidence. The purpose of my two linked amendments is at least to ensure that any government have to respond to the reports of the Health Protection Agency. In other words, they require any government to say what they are doing about the problems the agency has revealed.

The reason I believe we need such a duty placed on government is that today we face a crisis in public health—a rapid decline in the sexual health of this country. In England, one in 10 sexually active young women, and many men, are infected with chlamydia. Syphilis rates have increased by 500 per cent in the last six years, and those for gonorrhoea have doubled. Waiting times for treatment at clinics dealing with sexual disease have increased, while the conditions of the clinics are often, frankly, lamentable. These clinics, I should emphasise, are intended to provide immediate access and confidential treatment.

As for HIV/AIDS, the position continues to deteriorate. We now have 50,000 people living with HIV in the United Kingdom, a 20 per cent increase from 2001–02, and the highest ever figure of new diagnoses in one year. We should remember that within that 50,000 total, there are an estimated 15,000 cases of undiagnosed HIV, with all that means for public health. Mortality rates have decreased because of medical advance, but new diagnoses have also increased.

Of course, HIV/AIDS in the United Kingdom is not remotely on the scale of infection as that in sub-Saharan Africa or, tragically, now parts of Asia. However, the figures continue to increase year by year, and it remains our most significant communicable disease.

In committee, the Minister twice denied that all of this amounted to a crisis. Frankly, I can think of no other description for what is happening. "Crisis" is the word used by both the House of Commons Select Committee on Health and the acknowledged experts in the field.

The House of Commons Health Committee reported last May and, although the Commons is on holiday this week, I am happy to put the case for that committee in this House. It stated:

"We have been appalled by the crisis in sexual health we have heard about and witnessed during our inquiry. We do not use the word 'crisis' lightly but in this case it is appropriate".

It went on to say:

"No area of public health in England has suffered a more dramatic and widespread decline in recent years than sexual health . . . [It] is one of the poorest-resourced, most stretched and least well-staffed areas of the NHS. One after another of the memoranda we received attested to the pressures faced . . . We were told that long waiting lists had replaced open access; that where open access remained in place hundreds of patients a week were now turned away".

If anyone doubts that position and that description of the clinics, I suggest they cross the river to see the situation in St Thomas's Hospital.

It is not just the Health Select Committee that makes such claims; a similar message comes from Professor Michael Adler, an acknowledged expert in this area who yesterday, incidentally, gave a very distinguished address at the Royal College of Physicians. He said, in a letter to the Times a few weeks ago:

"The Department of Health's desire to shift the balance and devolve responsibility to primary care trusts (PCTs) means that no one takes responsibility for sexual health. PCTs respond to NHS priorities and performance management: sexual health is not covered by either of these . . . The time has come for strong central political leadership and recognition that we are dealing with a major public health crisis".

Again, that word "crisis" is used. If noble Lords require more graphic evidence, they might like to look at the two-page report in last Sunday's Independent on Sunday.

I do not claim for one moment that my amendment will miraculously solve all those problems, but it will at least force the Government to concentrate on the area and give their attention to an area of policy that is unfashionable and in which politicians risk plunging into deep controversy. We ignore the warnings in the figures of the Health Protection Agency at our peril. The trouble is that, over recent years, we have done just that; we have ignored those warnings. I regret to say that government has been too slow to recognise what is happening. I say "regret" because I do not believe that it is remotely an issue of party politics. However, I must point out that it took the Government four years—the whole of the previous Parliament—to set out their strategy, much to the frustration of many of the Government's own most loyal supporters. Such delay could be avoided, if there were, as the amendments propose, a requirement on the Government to respond.

There is no one answer to the problem that I have raised. At the end of the 1980s, I ran a campaign under the banner "Don't Die of Ignorance". Ignorance remains one of the issues that must be tackled. A recent survey showed that almost three-quarters of those between 16 and 24 had never heard of chlamydia. Such ignorance should be tackled by education—education at school and education in the broadest sense afterwards. I agree with those who say that health education goes further than simply saying, "Use a condom". People should be given the knowledge to make their own informed decisions. However, I hope that it is still recognised that using a condom is dramatically successful in preventing sexual disease. Nowhere is that more important than in the area of HIV/AIDS, for which, in spite of medical advance, there is still no cure. That point should be emphasised and underlined. I also believe that effective publicity is important to our efforts. In this country, we are fortunate in having the modern means to get messages through. We know that those messages can get through, and we know that they work.

In the end, as my amendment says, it all comes back to the Government's response. If one message comes through from experience in this country and overseas, it is that the problems are tackled only when governments lead. My fear is that the Government are not leading; certainly, they are not leading to the extent that is necessary. We should recognise the issue. Policy is often made when governments respond to pressure from people suffering from a particular disease. That is understandable. The trouble here is that we are talking of prevention: there is no mass lobby for prevention generally or for preventing sexual disease in particular. That is why the response and the attitude of government are so vital.

If the Government do not lead, no one will. I suggest that the public would expect the reports of the Health Protection Agency to be followed by statements from the Government on how they intend to respond. That is what the amendments would do. I beg to move.

Photo of Earl Howe Earl Howe Conservative 12:00 pm, 6th April 2004

My Lords, I support my noble friend in all that he said, not least his words of praise for those who work in the Health Protection Agency, some of whom I met when I visited the agency last month in the company of the noble Baroness, Lady Andrews, and the noble Lord, Lord Clement-Jones.

The essence of my noble friend's amendment is simple: the buck stops with Ministers. The HPA can do a great deal, but it can be effective only up to a certain point. As my noble friend said, in the end, it is up to elected members of the Government to act appropriately on the agency's recommendations. I agree with him that, without a duty in the Bill at least to respond formally, the legislation will contain no drivers for action. It is those drivers for action that count, bearing in mind the number of public health policy reports that have been published over the past 30 years—all of them, doubtless, extremely worthy and almost all of them published to zero effect. There is a need for a statutory duty, however mild its framing, to ensure that future reports elicit an automatic response, independently of the parliamentary process, rather than just being put on a shelf somewhere.

Photo of Lord Clement-Jones Lord Clement-Jones Shadow Minister, Spokesperson On Older People

My Lords, I also support the noble Lord's amendment. We attempted to put our names to the amendment, but there must have been some slip between cup and lip somewhere in the process.

As the noble Earl, Lord Howe, said, the work of the Health Protection Agency is extremely impressive, particularly when seen at close quarters. One of the issues that politicians must address is what happens when an agency such as the HPA throws up such a volume of evidence and issues. The essence of the matter is prioritisation. It is a matter for political response, and there must be a response to the HPA's reports. They cover a huge range of issues, and one of the most impressive things is the spread of expertise. The noble Lord, Lord Fowler, concentrated on sexual health, but, by the same token, one could make the argument in a range of other areas, not least microbiological issues and the need for government to respond to them.

It is easy for politicians to brush aside some of the scientific evidence thrown up in reports by agencies such as the HPA. The noble Lord's words carry considerable force, given his experience, but we must cover a range of other issues as well. I urge the Minister to take the amendments seriously. Having visited the agency at Colindale, I am more than ever convinced of the benefits of making the amendments.

Photo of The Bishop of Liverpool The Bishop of Liverpool Bishop

My Lords, I support the noble Lord's amendment. On these Benches, we support the spirit and the letter of the amendment, and we fully recognise that the faith communities and those in education bear particular responsibility for advancing the cause in the public media. We also recognise that the leadership of the Government is essential if we are to make progress.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I echo the remarks made by noble Lords about the quality of the staff of the Health Protection Agency. I can reassure the noble Lord, Lord Fowler, that I have never denied that HIV/AIDS and sexually transmitted infections were a serious issue. I might quibble a little about the word "crisis", but we will not get into a semantic debate about it today.

I remind your Lordships that the Bill is about setting up the Health Protection Agency. I must briefly respond to the suggestion that the Government are not doing enough on HIV/AIDS. I remind noble Lords that a national strategy on sexual health and HIV was published in July 2001. Its aims are to prevent the spread of sexually transmitted infections and HIV and to improve treatment and care for those who need them. That strategy was backed by an initial investment of £47.5 million, and an additional £26.5 million was announced in 2003–04 to modernise genito-urinary medicine services and expand targeted HIV prevention for those most at risk. Recommended standards for HIV treatment were published in October 2003. Similar documents on sexual health are under way. We have done a lot to improve the detection of maternal HIV infection and prevent the transmission of HIV to babies when they are born.

There is a lot more where that comes from, but, as I said, the debate is not about sexually transmitted infections and HIV/AIDS; it is about setting up the Health Protection Agency. I must say gently to the noble Lord, Lord Fowler, that the amendments would not deliver what he wants. These amendments would require the Secretary of State, but none of the other appropriate authorities, to respond to the agency's annual report within two months of receiving it and laying it before Parliament. That is what these amendments would do.

I fully accept the need for the Government to tackle issues of importance and to demonstrate publicly how they are doing so. But these amendments are not the best way of meeting that need. If accepted, the requirement that they would impose might be met by publishing a response which said no more than, "Thank you very much for your annual report, the contents of which I have noted". The Government would have discharged their responsibilities to respond to the annual report, by doing just that.

These amendments relate to the annual report. It has not been the practice of successive Governments to respond to the annual reports produced by the hundred or so arms-length and advisory bodies in the NHS health care sector. The amendments misunderstand the purpose of the agency's annual reports. They are a way of keeping Parliament informed of how the agency has used the funds voted by Parliament. They are not necessarily a call for government action.

The Government will continue to produce reports and make announcements at appropriate times when we have something new or particular to say. If Parliament considers that the Government are failing to make clear their stance or plans on any particular point, Members will be able to hold us to account through Parliamentary Questions, Select Committee inquiries and the like.

These amendments would not deliver the aspirations that the noble Lord, Lord Fowler, suggests. They should not be pressed.

Photo of Lord Fowler Lord Fowler Conservative

My Lords, before I come to the Minister's final point about the purpose, effect and impact of the amendments, I should like to say as gently as I can that I continue to be disappointed by his response to this matter.

We should not quibble about whether we should use the word "crisis": there is a crisis out there. Until the Government recognise that, we will not get the action that is required. None of us in this House—and none of the public—wants that to take place.

The Minister has provided what one recognises as a departmental reply. I very strongly urge Ministers to go back to their departments and look at, read and discuss the reports of Select Committees and other bodies that have looked into this area. It is a very serious situation and in my view the Minister epitomises the Government's complacency in this area.

The Minister said that the amendments will not meet my requirements. That is a powerful argument. I will have to look at this matter further for the next and final stage of this Bill. I should like to thank those noble Lords who have supported the principle of what is taking place. It is interesting that the only person who has opposed it has been the Minister.

I shall try to come back on this point, but I say to the Minister that the Government need to take this issue much more seriously than they are at the moment. Unless they do so, there is going to be some real tragedy in this country. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Health functions]:

Photo of Lord Clement-Jones Lord Clement-Jones Shadow Minister, Spokesperson On Older People

My Lords, much as I like the words "zoonosis" and "zoonoses", I would not be bringing back this amendment unless I had not been wholly satisfied by what the Minister said in Committee. His reply was not wholly satisfactory. I do not intend to go through all the points that I made in that debate; rather I shall unpick some on the Minister's points.

My disquiet about accountability and responsibility in the matter of zoonosis was compounded by my visit to the Health Protection Agency. The HPA is an expert body on zoonosis. It was clear during the SARS crisis that it was a reference point—indeed, it received one of the first cultures of the virus from the far east, and its opinion was relied upon heavily.

In discussion with the agency, it was not at all clear that it is the authority with the prime responsibility for tackling zoonosis. It is the expert reference point and its advice is heavily relied on. But Defra is the body with the prime responsibility for tackling zoonosis. Given the expert nature of the HPA, that is wrong. It is not spelled out entirely in the Select Committee report, but in Committee I read out an extract from page 27 of the report which not only described how important zoonotic infections are, but also recommended that that HPA take on that responsibility. The report does not say that Defra has this responsibility, but that has emerged.

In Committee, the Minister made great play of the fact that the essence of this was co-operation; that there was a duty under the Bill to co-operate; that there was no argument about the importance of zoonosis; but that the wording of the Bill was almost perfect and the parliamentary draftsmen, as ever, were omniscient. Of course, it was implied, the term "infectious disease" covered zoonosis. I can accept that.

The reason for bringing back this matter is that the responsibility for tackling zoonosis needs to be primarily under the wing of the HPA. That is the organisation with the expertise. It seems unsafe to allow Defra—a government department that does not have primary responsibility for human health—to be in that position.

I look forward to hearing what the Minister has to say. I believe that the conclusions of the Select Committee are still correct and discussions since the Committee stage have convinced me that what we said at that time is still wholly correct. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I shall have another go.

As I made clear in our earlier debate, it is our intention that the HPA should take a strong interest in and be involved with zoonosis. Let me reassure the noble Lord, Lord Clement-Jones, that Defra is the lead on zoonosis in animals and the HPA is the lead on zoonosis in humans. The help that the HPA special health authority is contributing to the international effort to combat avian flu is an example of how this is already happening. It is discharging those responsibilities.

Its predecessor bodies were also active in this area; for example, in work on foot and mouth disease and BSE. The HPA already undertakes broad zoonoses disease surveillance, including diseases that are not endemic in the UK. However, work on zoonosis requires liaison between human and animal health organisations at central, regional and local levels.

At central government level, there are good working relationships on zoonosis between the Department of Health, Defra, the Foods Standards Agency and the Health and Safety Executive, and with and between bodies that answer to them, such as the Veterinary Laboratory Agency and the HPA special health authority. All these bodies have different expertise and perspectives to contribute, and they need to be involved.

We will be bringing forward amendments later to tidy up some of the drafting of the Bill. We are not claiming that our drafting of Bills is always perfect. However, I remind the noble Lord, Lord Clement-Jones, of what I said earlier in our discussions. The term "infectious disease" already covers zoonosis and, indeed, zoonoses. The amendment is therefore not necessary to enable the HPA to be involved in zoonosis and, as I said, to take the lead responsibility in relation to zoonosis and zoonoses in humans.

I suggest that the inclusion of a reference to any particular example of infectious disease could cast doubt on the scope of the generality of the expression of infectious disease. That is not a defence in depth of parliamentary draftsmen but a real point—mentioning one in a collective casts doubt, by implication, on what else is included in that collective term.

Photo of Lord Clement-Jones Lord Clement-Jones Shadow Minister, Spokesperson On Older People

My Lords, I thank the Minister for that reply—we have benefited considerably from it. For the Minister to say that the HPA is the lead authority on zoonosis as applied to humans is much stronger than his previous reply. I welcome the admission of a chink in the drafting armour—that must have taken a great deal of saying. We wait with bated breath on that front.

What the Minister said was welcome. There are issues about who takes responsibility in the field and what authority the HPA has in situations in which infection arises in animals that could easily escape to humans. I suspect that the relationship it has with Defra is a practical issue that will require good will on all sides. We cannot legislate for that, certainly not in primary legislation. However, it is very helpful to have such a statement, giving the HPA the necessary authority in this area. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Radiation protection functions]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 3:

Page 3, line 5, leave out subsection (4) and insert—

"( ) If a Health and Safety body asks the Agency to enter into an agreement with the body for the Agency to carry out any of the body's functions relating to radiation (whether ionising or not) on the body's behalf, the appropriate authority may direct the Agency to do so."

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, the first of these government amendments would replace Clause 3(4) with a new provision. Currently, this provision provides a power similar to that in Section 1(7A) of the Radiological Protection Act 1970.

The noble Earl, Lord Howe, questioned in Committee whether it was right that the Secretary of State should be able to direct the agency to agree with the Health and Safety Commission that the commission should "relinquish" any of its functions in favour of the agency. He thought there might be a case for providing for this to happen in the event of an emergency, but questioned whether, in normal circumstances, an independent person such as the Health and Safety Commission could be required to agree.

We have looked again at the provision in the light of the noble Earl's comments. It has never been our intention that it should be used to apply compulsion to a health and safety body. The government amendment, therefore, aims to make it clear that the situation contemplated is one where the health and safety body has asked the agency to carry out functions of the health and safety body.

The Health and Safety Commission and its Northern Ireland equivalent already have the power to enter into agreements with bodies such as the HPA for such bodies to carry out their functions. However, nothing in the Bill gives the agency the power to agree to carry out another body's function, except in the circumstances envisaged in Clause 4(5), which are not relevant here.

The Bill therefore needs to provide for the agency to agree to carry out a function of a health and safety body. Without some such provision, there could be doubt about whether the agency would have the power to accept a proposal from the health and safety body that it should exercise one or more of the body's functions. Clause 3(4) and the new version of it proposed in the government amendment provide for just that. We are grateful to the noble Earl, Lord Howe, for bringing this point forward.

The second government amendment provides for the deletion of Clause 3(9). This subsection currently provides that Scottish Ministers must not give a direction under subsection (4) and must not be consulted in relation to such a direction for the purposes of subsection (6).

The Bill, as introduced, reflected a view by the Scottish Executive that it would not need the power in Clause 3(4) because health and safety is largely a reserved matter. Subsection (9) took account of that. Subsequently, views on the desirability of subsection (9) changed, and the Government, in agreement with Scottish Ministers, tabled an amendment for Grand Committee which would have deleted it.

The noble Earl, Lord Howe, suggested in Committee that the Bill, as introduced, reflected a decision by Scottish Ministers,

"to subordinate or relinquish to English Ministers their right of direction in relation to radiological protection matters".—[Official Report, 3/3/04; col. GC 267.]

The noble Earl welcomed that and was concerned that the government amendment to delete subsection (9) reflected a change from that position. I have to disappoint him, because although I agreed to withdraw the amendment and provide more details before it was considered, the position in terms of devolved matters has not changed. In answer to the noble Earl's suggestion that the Bill as introduced showed a readiness on the part of Scottish Ministers to relinquish powers they currently have, I have to make it clear that health and safety is and remains largely a reserved matter. The Bill does not change that. Similarly, the radiation protection functions which were devolved before the Bill remain devolved under the Bill.

Scottish Ministers could not be an appropriate authority, as defined in Clause 6, for the purposes of Clause 3(4) at present, as there is no relevant function exercisable within devolved competence. Deleting subsection (9) does not give Scottish Ministers powers which they do not currently have, but it does mean that if in future a health and safety function in relation to radiation protection becomes exercisable within devolved competence, the power in subsection (4) would become available to Scottish Ministers. More immediately, the deletion of subsection (9) removes the prohibition on consulting Scottish Ministers when a direction is issued, a prohibition which none of the bodies identified in Clause 6 wishes to maintain. I beg to move.

Photo of Earl Howe Earl Howe Conservative

My Lords, I thank the Minister for introducing government Amendment No. 3, which certainly addresses the point I sought to make in Committee. I, for one, had not picked up from the Minister's remarks in Committee or from any published Government statement that what was envisaged was a situation in which the health and safety body made a request that the agency should assume one or more of its functions. I think his remarks in that regard were extremely helpful. I should also like to take this opportunity to thank him for the letter he sent me a few days ago on this matter.

With regard to Amendment No. 4, I once again thank the Minister for some very helpful explanatory remarks, which he foreshadowed in his letter to me. I am much clearer now about what is and what is not a reserved matter. The noble Lord has put it squarely on the record that there is no change in the current constitutional position. I am therefore quite content for the amendment to be agreed if that is the wish of the House.

On Question, amendment agreed to.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 4:

Page 3, line 22, leave out subsection (9).

On Question, amendment agreed to.

Clause 4 [Functions: supplementary]:

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities 12:30 pm, 6th April 2004

moved Amendment No. 5:

Page 3, line 37, at end insert—

"( ) ensure that the Agency's specialist services at the local level are adequately resourced to enable them to appropriately discharge their duties."

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities

My Lords, we turn to the funding of local HPA facilities, which we debated in Grand Committee. It would be fair to say that there was a degree of confusion on all sides during that debate. I therefore thank the Minister for his letter of 24 March, which clarified some matters to me, in particular that those services which have been transferred from PCTs will no longer be required to be carried out. That was a useful clarification.

However, it is not clear whether the funding of local HPA functions will be ensured. That issue lies at the heart of my amendment. The Minister usefully explained something that I admit I had not realised; that 75 per cent of the HPA's funding comes from the selling of its activities and services. They are world-class services, as we have acknowledged. Some of my colleagues have had the opportunity to see them for themselves. I can understand that that is a significant and perhaps growing source of income; for example, the research and development programmes that generate new vaccines; the manufacture of licensed pharmaceutical products and the royalties from their sale; and the development, clinical trial and manufacture of biological products for the bio-pharmaceutical industry.

However, I am concerned about the provision in Schedule 1 that would allow the Treasury to take into account the income that is generated from those activities in determining the level of funding for the Health Protection Agency. We on these Benches are concerned that the basic duty of health protection should be guaranteed by government funding and should not be dependent on the extent to which the agency can generate income from those sources. It was not clear in the Minister's letter whether that is the case. I note that he stated that the extent to which the agency succeeds in selling its services will not necessarily always mean that the Government will cut its funding, but there is still a degree of uncertainty which causes us some concern on these Benches.

I quite understand the need to determine the overall resources that are likely to be available to the agency as a whole, but our amendment would ensure that those basic, day-to-day health protection functions at local level are never jeopardised, particularly at times when there may be a sudden and increased demand for those services. The noble Lord, Lord Fowler, spoke about some of those issues in moving his amendment. Will the Minister give us further clarification about local funding? I beg to move.

Photo of Earl Howe Earl Howe Conservative

My Lords, we can make one quite obvious observation about the Health Protection Agency: in order to do its job properly, it has to be adequately resourced and funded, as the noble Baroness made clear. Paragraph 19 of Schedule 1 takes us to the heart of that debate and I shall speak now to the three amendments to which my name is attached—Amendments Nos. 21, 22 and 23.

If we look at the wording of the schedule, I am not sure that we can derive great comfort from it. The agency will be funded from several different sources: from the Department of Health; from the health budgets of Scotland, Wales and Northern Ireland; and from miscellaneous income generation. The amounts to be contributed by each of the governmental sources seem to be determined by no objective considerations whatever. They are to be arrived at from individual ministerial decisions on what appears to be appropriate. As I read the wording, the Scottish, Welsh and Northern Irish contributions will be decided on first, before the Secretary of State decides how much he is going to chip in. In the worst case, the Secretary of State might be obliged to contribute a disproportionate share of the kitty if the others decided to cut back their public health budgets. What exactly would constitute a disproportionate share of the kitty? How is a calculation of fair shares to be arrived at? I am certainly not clear about that, and it would be helpful if the minister could enlighten us.

Paragraph 19(2)(d) worries me. It states that in deciding on the amount he is going to contribute to the agency's budget, the Secretary of State must take into account,

"any income received by the Agency from any other source".

That seems to provide him with a golden excuse to reduce the amount of his contribution if the agency has been clever enough to raise income from external sources, as it does regularly. As I know from my visit to the agency last month, there is a whole variety of ways in which it is able to generate income from the services that it offers. The Minister may argue, as I am sure that he will, that it would be grossly irresponsible for the Department of Health to disregard such income completely when determining an appropriate level of grant in aid. The trouble is that where income from external sources is generated, that very fact becomes a driver for ratcheting down the level of public subsidy; in other words, the agency, having generated external income in one year, would be given a target to raise even more in the following year. It might or might not be able to meet that target; but in the process, one key issue is in danger of being overlooked, which is whether there is a risk that the agency might not be funded adequately to perform the full range of its functions.

In addition, certain activities fall naturally to the agency that might not be seen as strictly essential for the performance of its functions. It might be, for example, that the agency decides to make a bid to the New Opportunities Fund, or another grant-making body, to fund a specific programme of activity, related, let us say, to a programme of public communication. Engaging the public with the science that underlies the more common public health concerns, such as SARS, food poisoning or MRSA, and educating them about the degree of risk in those areas, could be seen as one of the core tasks of the agency, but there might not be enough government funding to roll out a programme of that kind as fully as the board of directors might like. Will the agency be penalised for raising that income? If so, that would be wrong.

A further concern that I have relates to the UK contribution to the World Health Organisation. At present, it is fair to say that our national contribution is put together in a somewhat piecemeal fashion, so I am not sure what the total now is. However, I have also heard the view that, nowadays, the UK lags behind other countries in its financial support for the WHO, even though the WHO places a heavy reliance on the expertise in this country to assist it in the control and monitoring of infectious epidemics. That does not seem to be a comfortable situation for us to be in. Sweden and the USA have specific, dedicated budgets for international collaboration in health matters. Why does the UK not have the same?

Of course, the Secretary of State will have to gauge the extent of his contribution to the agency's budget partly by reference to the amounts promised by the other countries, but he should have a duty also to have regard to what the agency needs in order to perform the full range of its duties in an effective manner. If no such benchmark is set out in the Bill, there can surely be no basis for challenging any decision on funding that the Secretary of State takes, however inappropriate it may be to the work that the agency has in train. We cannot give the agency the right to demand whatever sum it likes, but it should not, on the other hand, be wholly dependent on the mood and whim of the Minister in securing the funding that it needs.

I hope that the Minister can reassure me on those concerns. I am sure that he will agree that they run to the heart of the Government's case for a more effective and joined-up approach to public health protection.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 12:45 pm, 6th April 2004

My Lords, in responding to these amendments, I will briefly put what I am going to say into context by reminding noble Lords of what I said at Second Reading of this Bill, where I am clearly on the record in Hansard as saying that the intention is to plan for an increase of £25 million or so in the provision for the HPA between 2003–04 and 2004–05. That is the context in which we are dealing with the funding.

Amendment No. 5 would enable, but not require, the agency to ensure that its specialist services at the local level are resourced adequately to enable them to discharge their duties appropriately. I agree that specialist services at a local level need to be funded properly. Indeed, the creation of the HPA has already helped us to go some way towards addressing this issue, by concentrating specialist services within a single organisation and establishing a framework within which it will be easier to ensure that the same health protection standards are met in all parts of England.

The noble Baroness, Lady Barker, drew attention in Grand Committee to a briefing note from the Faculty for Public Health which argued that local services inherited by the HPA are under-resourced, and I have written to her on that particular issue. But I would draw attention to the fact that the faculty was referring to the situation in 1997, and we believe that staffing levels have significantly improved since then. I enclosed some information on that point with my letter, which went to other noble Lords and had been submitted to the Select Committee on Science and Technology. We will certainly continue to work with the HPA to ensure that it has sufficient funding and that it puts it to good use.

The Bill established the agency as a non-departmental body. It does not determine funding levels for the agency, or for health protection more generally. I do not believe that this amendment is the right way to tackle the issue of funding at the local level. The amendment now makes clear that the reference is to the agency's own local services, but in our view it remains unnecessary. The HPA already has the power to decide how to allocate resources between its different functions. Our intention is that the agency will have the same power, subject to the power in paragraph 1 of Schedule 1 in relation to people who provide money to it. It would be odd, we believe, to make specific provision for local services in the Bill, which seems to privilege them over any other services the agency might provide. It seems to me that this is the kind of micro-management we are all trying to get away from within the NHS.

Paragraph 19 of Schedule 1 of the Bill as introduced sets out a rational way for the Secretary of State to reach decisions on what funding to provide for the agency. Amendments Nos. 21 to 23 would replace this with an approach which I do not believe is as rational, and in our view they should be resisted.

Amendment No. 21 would enable—but, I accept, not require—the Secretary of State to fund the agency at a level which would enable it to undertake the full range of its functions effectively. When the agency is carrying out functions for the devolved administrations, and funding for those functions is included in the financial settlements for those administrations, it is not clear to me why it should be thought necessary that the Secretary of State should do this.

I assume that the reasoning behind Amendment No. 22—the change of "must" to "may"—is similar: that it is desirable that the Secretary of State alone should be able to fund the agency for all its functions, and therefore he should not be required to consider the funding provided by the devolved administrations. Even if there is no requirement to consider their funding, I am confident that, in practice, the Secretary of State will want to do so. The Secretary of State has a wide range of responsibilities in relation to priorities, and it does not seem rational that he should simply ignore these contributions from the devolved administrations in setting the budget for the HPA.

Amendment No. 23 is also, in our view, undesirable. It seems to suggest that the Secretary of State should not take account of any income the agency receives, other than that from the devolved administrations. We have made clear, but it is worth going over some of this again, the extent and type of income that the HPA is already generating and we have every reason to think will continue to generate. It is an agency that has much to contribute, not just to the UK government and the devolved administrations, but to others as well. It has long been Government policy that departments, agencies and non-departmental public bodies should make better use of their assets—not just their physical assets but also their intellectual property, data and skills—by engaging in commercial services. The HPA already does this. For example, in 2003–04 the HPA budgeted for an external income of over £70 million. This was not tight-fisted government. It came from research grants, roughly £10 million; micro-biological testing, around £33 million; surveillance services, just under £4 million; manufactured products, around £18 million; plus other sundry income, including royalties and licences of £5 million. Customers from both the private and public sectors, UK and overseas, were involved. For 2004–05, it forecasts external income of around £74 million, spread across the same range of activities and in roughly the same proportions.

The National Radiological Protection Board's total external income in 2003–04 totalled around £9 million. It raises funds from external sources such as the EU, government departments and agencies other than the Department of Health, and local authorities to support its scientific programme of work. A major proportion of its external income is earned through the direct commercial services that it offers to users of radioactive material, principally UK industries and businesses. These commercial services include a personal dosimetry service, radiation protection advice and training, and other technical services. Again, this income will go up in 2004–05.

The funds generated are reinvested in the work of the organisations concerned in both cases. The benefits from these activities are not simply financial. It is the experience of both the National Radiological Protection Board and the HPA that the dynamics and diversity which develop in an organisation which has many facets and commercial exchanges with the wider world makes it a more exciting place to work, so that there are recruitment and retention incentives as well. It provides opportunities that attract high calibre people, and that benefits the core functions for which the organisation was created.

We think this approach is the right approach. It is not about being tight-fisted on the part of central government, although it does recognise the reality that the HPA has these skills and is able to market them and generate income. It seems rational in these circumstances that the Secretary of State should take account of those sources of income when settling the budget for the HPA. I have said already, in a context where our actions match our words, that we are looking to ensure that the funding for the HPA is appropriate.

On one particular point raised by the noble Earl, Lord Howe—that it was wrong for the Secretary of State to reduce agency funding on the basis that it has made a successful bid to the New Opportunities Fund—the Bill does not require the Secretary of State to reduce funding. As I have said, he would need to take account of efforts in income generation and the work that is done in settling the funding, as well as all the priorities that any Secretary of State has to take account of across the wide spread of the healthcare field.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities

My Lords, this has been a useful debate, and I thank the Minister for his answers. There is still a gap between the Minister's explanation and the concern that we have on this side of the House. We are not concerned that the agency should be in any way limited from developing the work that it has done so well commercially; that is not at issue. What is of concern to myself, and to the noble Earl, Lord Howe, in moving his amendment, is that within the context of the devolved administrations and of services provided at a local level, there should always be a certainty that the essential work of the agency is funded adequately. What happens beyond that, as and when the agency is successful in developing its work nationally and internationally, is a separate matter.

I believe that it is more the drafting of the Bill that causes problems for myself and for the noble Earl, Lord Howe. I hope that before we consider these matters again we might be able to come up with a form of drafting that enables us to have our genuine concerns taken into account about essential services being safeguarded, without in any way seeking to impinge on the agency's good work. I beg leave to withdraw.

Amendment, by leave, withdrawn.

Photo of Lord Clement-Jones Lord Clement-Jones Shadow Minister, Spokesperson On Older People

moved Amendment No. 6:

Page 4, line 29, at end insert—

"( ) If the Secretary of State considers that the Agency is not undertaking an appropriate function, he may direct it to do so.

( ) The Secretary of State may not limit the Agency in the exercise of a function that the Agency considers appropriate."

Photo of Lord Clement-Jones Lord Clement-Jones Shadow Minister, Spokesperson On Older People

My Lords, without wishing to stretch the metaphor too far, putting Amendment No. 6 before the government amendments feels a little like putting the cart before the horse. I do not want your Lordships to speculate on who the horse might be in those circumstances. It means that I have to get my retaliation in first, this being Report stage.

The matter that caused most of us the greatest affliction in Committee was whether or not the "appropriate authority", which in most cases would be the Secretary of State, would be able to prevent the Health Protection Agency publishing or carrying out an act that the Secretary of State did not believe to be appropriate. In those circumstances, we felt that the existing wording of subsection (7) was too wide. The Government have responded helpfully to that, and I shall be interested to hear the Minister unpack new subsection (7). The lettering and numbering of it is rather interesting and quite novel, but no one is against innovation in this House.

However, I still have some concerns about the powers of the appropriate authority—and, indeed, the Secretary of State—in those circumstances. I seek reassurance from the Minister that the provisions would not prevent the agency carrying out an activity or undertaking a function if the Secretary of State deemed that he did not want it to be carried out. I believe that new subsection (7) tries to bring the process within a policy framework, by which I assume that it means a public policy framework—so measures are not merely at the whim of the Secretary of State or a set of circumstances such as a crisis, in which the material produced by the agency is too sensitive for public consumption, or some such scenario. I am assuming that is why the new subsection is worded as it is, so that measures are clearly seen to be part of a public policy framework, so that it is quite legitimate for the appropriate authority to direct the agency.

We need reassurance on that point. The original amendment, Amendment No. 6, was designed to ensure that the Secretary of State could not limit the agency in the exercise of a function that the agency considered appropriate, for that very reason. I beg to move.

Photo of Earl Howe Earl Howe Conservative

My Lords, it would be wrong of me not to acknowledge the Minister's efforts to respond to concerns that I and others raised in Grand Committee. However, like the noble Lord, Lord Clement-Jones, I am sorry that he has not felt able to go just a little further. None the less, I shall listen to his remarks with particular care.

As the noble Lord, Lord Clement-Jones, said, a number of us felt that while default powers are one thing—and certainly an understandable feature of a Bill of this kind—a widely drawn power of direction raised the possibility of Ministers making use of that power as a regular mechanism by which to steer the agency's activities from a distance. The Minister assured us that that was not the intention, which I accept; but the existing wording is nevertheless widely permissive.

As amended in the way now proposed by the Government, the power becomes much more circumscribed, which is decidedly welcome. I shall be interested to hear what the Minister says about including a duty to have regard to government policy; if I were honest, I would wish that that had been omitted, but no doubt the Minister will tell me that it is essential. It is to be hoped that that power will be used sparingly, if at all.

As regards the other amendments, I thank the Minister for taking on board the main thrust of my concerns as he has.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, Clause 4(7) of the Bill gives each of the appropriate authorities a power to direct the agency as to the exercise of its functions. As noble Lords have said, concerns were expressed about the unlimited nature of the power. I undertook to reflect on whether the provision could be tightened up so that the power could be deployed only when Ministers had a genuine concern that the agency might not be performing its functions properly. I hope that the amendment which the Government have now brought forward meets the concerns expressed, and I am encouraged in that hope by the remarks made by noble Lords.

In practice, I do not believe that there has been much between us on this point. We all agreed that there were circumstances in which it would be desirable to direct the agency, and I made the point that we did not envisage that we would direct the agency frequently. The amendment which we produced makes the position much clearer than it was before.

New subsection (7B) provides a power to direct that is available only when the appropriate authority considers that the agency is failing to a significant extent to discharge any of its functions, or is failing to discharge any of its functions properly. The power enables the appropriate authority to give such a direction as it thinks appropriate for remedying that failure. New subsections (7) and (7A) provide that the appropriate authority should be able to direct the agency to have regard to the policies of the authority, and that the agency must comply with any such direction. These provisions will enable an appropriate authority to identify aspects of its policy which the agency must take into account. That could be relevant to judgments as to whether the agency is failing to a significant extent to discharge a function properly.

Both elements of the amendment reflect approaches which were taken in last Session's legislation on the Commission for Social Care Inspection and the Commission for Healthcare Audit and Inspection—now popularly known as the Healthcare Commission. Section 131 of the Health and Social Care (Community Health and Standards) Act 2003 provides that,

"in exercising any of its functions the CSCI must have regard to such aspects of government policy as the Secretary of State may direct in writing".

Section 130 makes similar provision in relation to the Healthcare Commission.

Section 132 of the 2003 Act provides that,

"where the Secretary of State considers that the CHAI is to a significant extent . . . failing to discharge any of its functions under this Act; or . . . failing properly to discharge any of those functions; he may give a direction", to the commission.

Similarly, Section 133 provides for directions to CSCI where the Secretary of State considers that it is to a significant extent failing to discharge any of its functions or to discharge them properly.

A reference was made in Grand Committee to the fact that NHS foundation trusts are not subject to such a power of direction by the Secretary of State. That is true. However, there is a power, in Section 23 of the Health and Social Care (Community Health and Standards) Act 2003, for the independent regulator of NHS foundation trusts to require a foundation trust to take certain action. If the regulator is satisfied that an NHS foundation trust is contravening, or failing to comply with, any term of its authorisation or any requirement imposed on it under any enactment and that the contravention or failure is significant, he may by a notice to the trust require it to do, or not to do, specified things or things of a specified description within a specified period.

Clause 4(8), as amended by the government amendment, would continue to provide a default power for an appropriate authority if the agency failed to comply with a direction about remedying a failure.

We consider that a default power is necessary where a body is providing front-line services, particularly where, as with the agency, it is the only body of its kind. Similarly, Section 24(7) of the Food Standards Act provides:

"If the Agency fails to comply with any directions under this section, the authority giving the directions may give effect to them (and for that purpose may exercise any power of the Agency)".

There is also a power in Section 84A of the National Health Service Act 1977 which allows for intervention orders to be made in relation to a failing NHS body. There is no default power for CHAI or CSCI, but those bodies carry out inspections and reviews. They are not in the front line of service provision in the way that the agency will be.

I have set out this context at some length because I am trying to show that, in framing these amendments, we have tried to take account of recent practice in circumscribing the Secretary of State's powers to issue directions in a meaningful way which does not go too far but preserves his right, in particular circumstances, to exercise a discretion. That is what we are trying to do in these amendments. The power to direct the agency to take account of policy, about which noble Lords have raised concerns, could not be used in that way. In the Bill Parliament entrusts the agency with functions without providing for it to be micromanaged by directions. These amendments are very circumscribed. I hope that noble Lords will accept that we have tried to respond to the concerns expressed in Committee.

Photo of Lord Clement-Jones Lord Clement-Jones Shadow Minister, Spokesperson On Older People 1:00 pm, 6th April 2004

My Lords, I thank the Minister for what was effectively an introduction and a reply. He laid down a barrage of legislative provision that to some degree created a great deal of smoke around the target, as barrages often do. I am not sure whether in the middle of the smoke there was not something dimly perceptible that we need to tease out on Third Reading.

I do not think that there is any argument between us about the default provision. The precedents that the Minister mentioned are sensible and clear. I do not believe that the wording on that goes beyond the point that it should. The argument is entirely about the policy framework within which the agency is required to work under Clause 4(7). The Minister did not mention any precedent. It may be that beneath the barrage some precedent was mentioned, but I think that he spoke only about the default powers. I think that we need a period of further reflection on whether this clause is entirely proportionate as regards the operation of the agency, whether it should be there, and whether it could be used for purposes that are not wholly legitimate.

In view of the erudition of the barrage, we will ponder Hansard over the Easter recess, and, if necessary, return to the issue on Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendments Nos. 7 to 9:

Page 4, line 30, leave out subsection (7) and insert—

"(7) The appropriate authority may direct the Agency to have regard, in exercising any of its functions, to such aspects of the policy of the authority as the authority directs.

(7A) The Agency must comply with any direction under subsection (7).

(7B) If the appropriate authority thinks that the Agency is to a significant extent—

(a) failing to discharge any of its functions, or

(b) failing to discharge any of its functions properly, it may (after relevant consultation) give the Agency such a direction as it thinks appropriate for remedying that failure." Page 4, line 32, leave out "the direction" and insert "a direction under subsection (7B)"

Page 4, line 33, leave out from "may" to end of line 34 and insert ", instead of the Agency, take such action as it thinks appropriate to remedy the failure"

On Question, amendments agreed to.

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 10:

Page 4, line 35, at beginning insert "Subject to the provisions of the Data Protection Act 1998 (c. 29),"

Photo of Earl Howe Earl Howe Conservative

My Lords, when I tabled this amendment in Grand Committee, I explained that my concern about Clause 4(9) as drafted was that it appeared to give an unfettered power to the agency to disclose personal, non-anonymised data to anyone with whom it finds itself co-operating. The Minister in reply took me by surprise by saying that there was no reason to think that personal identified data would be passed across by the agency and that therefore my amendment was unnecessary. He has now very helpfully written to me to correct that answer, since, as he says in his letter, there is now a recognition that in some circumstances personal data would be exchanged.

I had always assumed that an exchange of this type of information would be necessary in certain circumstances, in particular those relating to infectious disease control. I have no problem with it where it is clearly in the public interest. My only concern is that there is nothing in the subsection that pays even the smallest degree of lip service to the key principles of data protection, chief of which perhaps is proportionality. What it says is that:

"The disclosure of information to or by the Agency . . . does not breach any restriction on the disclosure of information (however imposed)".

That seems to me a very broad power, which could be interpreted as overriding common law duties of confidentiality. There is absolutely no mention of the public interest or of the kinds of circumstances in which disclosure might be allowable. Without a qualifier of this type, individuals may well start to wonder, when they go to see their doctor, whether and to what extent private information on their medical files might be revealed and to whom. Fears of that kind tend to undermine trust and confidence between doctor and patient. In Grand Committee, the Minister spoke about the interrelationship between the Data Protection Act and the Human Rights Act. I do not doubt that there is a balance between the two statutes; but as I understand the Data Protection Act, it already contains provisions that enable the free exchange of data where the public interest demands that such data should be disclosed.

I would remind noble Lords that Clause 5, which covers the duty of co-operation, is unspecific in that it does not list the bodies with which the agency must co-operate. We all understand the reasons for avoiding lists in primary legislation—the government amendment that we are shortly to debate will eliminate one list altogether—but the necessary consequence of avoiding such lists in this Bill is that the number of bodies or persons to whom the duty of co-operation will apply is technically unlimited. That means that the number of bodies and persons lawfully entitled to be in receipt of confidential named data is also unlimited. I am worried by that when, as here, the power to disclose is protected against any restrictions to the contrary "however imposed". The force of those last two words is, I confess, unclear to me, but at best they would appear to leave room for interpretation. That cannot be satisfactory.

I believe that most of us would accept that there is a very simple test governing the exchange of personal data, and that is whether the other party has a need to know it. The word "need" in this context means "need in relation to the public interest". I would be much comforted if, first of all, there were some qualifying phrase or set of phrases in this subsection of the kind to which I have alluded—not necessarily as my amendment suggests, but something along those lines—and, secondly, if the Minister were to agree to issue guidance on the issue of data sharing to which all relevant parties must have regard.

I hope that he will be able to reassure the House, perhaps in more detail than before, that the concerns I have outlined can be addressed. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, the amendment deals with a point raised in Grand Committee. There was some confusion on the matter to which I freely acknowledge I contributed. My letter of 31 March to noble Lords recognised that there are points here that need further investigation and which, unfortunately, we have not yet been able to complete. Departments other than the Department of Health are involved. I have asked officials to ensure that we report back with a specific proposal for Third Reading. In the mean time, it may be helpful if I set out more fully what Clause 4(9) is intended to do and respond to some of the particular queries that have been raised here and in Grand Committee.

We all recognise that the agency, in order to discharge its functions, will need to handle some sensitive information. For example, it will need to deal with medical information about individuals. Its work on preparedness against chemical, biological, radiological and nuclear (CBRN) terrorism could also mean that it will have some information that will have implications for national security. Quite properly, sensitive information of this nature needs to be subject, as a general rule, to various restrictions on its handling.

There will, however, be circumstances in which the agency will need to disclose information that it holds to the other bodies with which it works in order to discharge its functions effectively. There will also be circumstances in which it will need to receive information from such bodies, again in order to perform its functions effectively.

It is because the agency, in order to discharge its functions, needs to receive and to pass on information, some of which could be subject to restrictions on handling, that Clause 4(9) is included in the Bill. As it is currently drafted, Clause 4(9) effectively disapplies from the agency restrictions on the disclosure of information; or to put it another way, Clause 4(9) enables the agency to disclose or receive information in circumstances where it would not otherwise be able to do so because, for example, of provisions in the Data Protection Act.

I should emphasise, however, that this does not give the agency an absolute power to disclose information. Under the Bill as currently drafted, what it can do is limited in two ways. First, Clause 4(9) itself provides that the disclosure needs to be for a defined purpose: either in pursuance of a duty of co-operation under Clause 5, or in the exercise of a function which is the subject of an arrangement made by virtue of Clause 4, subsection (5)(c) or (e). Secondly, the agency will be a public authority governed by the Human Rights Act 1998 in the exercise of its public functions. It is unlawful for the agency to act in a way that is incompatible with a convention right. Under the Human Rights Act, any disclosure that is lawful still needs to be proportionate: that is, to be published to no more people and in no other media than necessary to enable the agency's functions to be performed effectively, for the effective protection of public health, as described at Article 8(2) of the convention. On a point raised by noble Lords in Committee, it is not necessary to write into the Bill that the Human Rights Act, or its requirements on proportionality, apply to the agency: they do, whether the Bill says so or not.

As a result of those two qualifications, it is not the case, as was suggested in Grand Committee, that Clause 4(9) would give the agency carte blanche to disclose personal information to everyone on a local authority's pay roll. Clause 4(9) would make disclosure to a local authority lawful where disclosure was necessary under the duty of co-operation in Clause 5; but I cannot envisage circumstances in which a disclosure to all the authority's staff of information which should be kept confidential would be regarded as proportionate.

The noble Earl, Lord Howe, asked whether Clause 4(9), as currently drafted, would override the requirements of the Data Protection Act. As I indicated earlier, the current drafting provides such an override. The noble Earl made the point in Grand Committee that,

"the Data Protection Act does not prevent the dissemination of personal data when that is necessary in the public interest".—[Official Report, 3/3/04; col. GC 286.]

I accept that this is a very important point, and that is why we are still considering whether Clause 4(9) needs amendment to reflect that. However, the Department of Health is not the custodian of wisdom on the Data Protection Act, and we also need to clarify further with the Health Protection Agency what the practical implications are for it of modifying Clause 4(9). I am sorry to tell your Lordships that that work has not been completed in time for Report stage.

The agency deals with many different kinds of information, including information about the health and sexual behaviour of individuals and information about security matters in relation to bioterrorism. We need to look at each one of these in considering what provision is most suitable. We are working closely with the agency and lawyers on this, and I aim to bring forward our conclusions at Third Reading. It is not completely clear at this stage that Clause 4(9) as currently drafted is inappropriate and that is why I would ask the noble Earl to withdraw his amendment until we have completed further work. I shall keep him posted on the progress made and I am happy to consider his suggestion about providing guidance as a back-up to this piece of legislation.

Photo of Earl Howe Earl Howe Conservative

My Lords, that was a very helpful reply. Like the Minister, I regret that the Government have not had time to come to a conclusion on these issues. Nevertheless, I am grateful that Ministers are taking these matters seriously. It was helpful to hear from the Minister that, as I suspected, the clause overrides the Data Protection Act. I was not clear about that before. It is an important point. He drew our attention to the wording of subsection (9) where it states:

"The disclosure of information to or by the Agency", must be,

"for the purposes of the exercise of a function".

I accept that those words circumscribe the power, but at the same time they do so only in a loose way. My fear is that it will be necessary for someone or some body to co-operate with the agency in a general way for the transfer of confidential information to that person or body to be lawful. I understand that proportionality applies, whatever the Bill may say. Nevertheless the cat could get out of the bag before anyone intended that to happen. It would be helpful if between now and Third Reading the Minister could keep me advised of his thinking on this matter. I am perfectly happy to wait until Third Reading for a resolution and I believe we have three weeks before that takes place. It is much better to get such matters right in the end, even though it may take some time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Co-operation]:

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I have the pleasure of introducing this formidable string of government amendments which I shall group according to their subject, starting with government Amendment No. 11. The amendment responds to a point raised in Grand Committee when the noble Earl, Lord Howe, queried why it was necessary to include a specific reference to local authorities in Clause 5.

There are logical and historical reasons that explain why the clause was drafted this way. We were, for example, very aware that a number of the local authority responses to our 2002 consultation paper argued that we had downplayed the local authority role in health protection and needed to give clear recognition of the fact that the agency should work closely together with them.

It remains our view that the agency needs to work together closely with local authorities, particularly in England where it will have a particular role in supporting the provision of services at local level. However, we accept that it is unhelpful that Clause 5 as currently drafted singles out local authorities alone among all the bodies with which the agency needs to co-operate. That is not the impression we intend to give. By deleting the reference, the government amendment will remove any danger of doing so.

I turn to government Amendments Nos. 24, 25, 28 and 29. The noble Earl, Lord Howe, was astonished that we did not accept those amendments in Grand Committee. I do not want to raise his blood pressure any further. We have reflected on the point he made and we are happy to make the changes that he suggested.

I turn to Amendments Nos. 30 to 32 and 37, which provide for the agency to be placed in the jurisdiction of the Parliamentary Commissioner for Administration in relation to all its functions, except those that it carries out for Scottish Ministers, which will be in the jurisdiction of the Scottish Public Services Ombudsman. At present, the Health Protection Agency Special Health Authority is in the jurisdiction of the Health Service Commissioner for England. The National Radiological Protection Board is in the jurisdiction of the Parliamentary Commissioner for Administration, with the exception of functions that it carries out for the Scottish Executive, which are in the jurisdiction of the Scottish Public Services Ombudsman.

The Bill provides broadly for the current situation to continue, although with a change in that some functions would fall within the remit of the Health Service Commissioner for Wales. That would effectively mean four different ombudsmen: the Parliamentary Commissioner for Administration, the Health Service Commissioner for England, his equivalent for Wales and the Scottish Public Services Ombudsman would all have a role in relation to the agency.

We have discussed the approach taken in the Bill and we have taken advice from and had long conversations with the Parliamentary Commissioner for Administration, Ann Abraham, who is also the Health Service Commissioner for England and the Welsh Administration Ombudsman. We are indebted to her for her advice. Together we have all come to the conclusion that the government amendments would provide for a better approach to that in the Bill.

We are happy to be guided by the Parliamentary Commissioner's view. She has made the point that the HPA is not an NHS body and is unlikely to provide much by way of direct care and treatment. In her view, it would not be appropriate for the Health Service Commissioner to consider complaints. We are happy that the agency, through our amendment, will fall within the remit of a single ombudsman, the Parliamentary Commissioner for Administration, with the exception of functions carried out within devolved competence in Scotland, which fall to the Scottish Public Services Ombudsman. That is common sense and takes account of the fact that, from the point of view of citizens, it is much simpler to keep the number of ombudsmen involved to a minimum rather than to create a possibility of confusion. I hope that noble Lords will agree.

Amendments Nos. 33 to 36 follow from an amendment accepted in Grand Committee, which allowed the agency to receive information from medical inspectors. The amendment allows the agency to receive that information not only in relation to England, Wales and Scotland, but also in relation to Northern Ireland. The further amendment also improves the drafting. The new provision achieves the effect intended, whether it is brought into effect before or after the changes to Section 133 of the Nationality, Immigration and Asylum Act 2002 to be made when Schedule 13 of last year's Health and Social Care (Community Standards and Quality) Act has commenced. As I am sure noble Lords will remember, that is the schedule that makes changes consequential on the abolition of the Public Health Laboratory Service Board.

Finally, I turn to Amendment No. 38. A government amendment to Schedule 4 was accepted in Grand Committee, which repeals Section 77 of the Health and Safety at Work Act 1974, which in itself amends Sections 1 and 2(6) of the Radiological Protection Act 1970. Having done that on coming into force it has no further legal effect and can be removed from the statute book. Amendment No. 38 makes an equivalent change to Northern Ireland's legislation. I hope that with those explanations noble Lords will be happy to accept the government amendments.

Photo of Earl Howe Earl Howe Conservative

My Lords, I am sure that I speak for the whole House in thanking the Minister for her explanation of the government amendments, and in particular for the first five amendments in this group. It is no small thing sitting on the Opposition Benches to have points made accepted by Ministers and officials. I am extremely grateful.

On Question, amendment agreed to.

Clause 7 [Publication of information]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 12:

Page 5, line 30, leave out from beginning to "any" and insert "But the Agency must not publish"

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, the government amendment and the amendments tabled by the noble Lord, Lord Clement-Jones, the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay, aim to respond to points raised in Grand Committee. I believe that we are aiming for the same outcome, and the only issue is over the best route to our destination. I will explain briefly why my preference is for the drafting of the government amendment.

As I explained in Grand Committee, Clause 7 gives the agency a proactive power to publish its advice and information—a power wholly consistent with our commitment to open government, which was supported by those who responded to our 2002 consultation exercise.

However, a number of noble Lords expressed concerns about the drafting of subsection 2(c), which some saw as a sinister device that would enable Ministers to insist that the agency's decisions on publication took account of Ministers' personal preferences.

As I tried to explain earlier, the question of whether publication is or is not in the public interest is not a matter of individual whim but has to be objectively determined. In appropriate cases, the agency may decide to consult government or any other public body about the public interest. However, under Clause 7 the power to publish rests with the agency itself, whomever it chooses to consult.

The reference to the public interest is important, as without it full effect might not be given to the right of respect for private life in Article 8 of the European Convention on Human Rights and other human rights. Article 8 is a qualified right: any interference must first be in accordance with the law and must also meet a public interest in a proportionate way. Convention rights are given effect in domestic law by a mixture of statute and common law. Although the HPA as a public authority is obliged by Section 6 of the Human Rights Act to act compatibly with human rights, there is a danger that without subsection 2(c) the unlimited power to publish in Clause 7(1) might be interpreted as overriding common law duties of confidentiality.

The reference in subsection 2(c) to the public interest balances the references to duties in statute. To omit it might imply that common law duties can be ignored, which in turn could cast doubt on whether full effect is given to article 8. But its inclusion is in no way intended to allow the appropriate authorities unduly to influence the exercise of the HPA's power.

Nevertheless, in response to concerns, I have looked at the drafting again and the government amendment now makes it clear—I hope that noble Lords will agree—that it is the agency that has the power to publish unless publication is not in the public interest.

I am getting in my bit of retaliation, to use the words of the noble Lord, Lord Clement-Jones. I recognise that the other amendment would deal with that point by following the wording in the Food Standards Act. We have nothing against that. I just mention to noble Lords that it was drafted over an interval of five years ago to meet the needs of different bodies with different functions. In the case of the HPA, we live in an era of bioterrorism and publication might not be in the public interest for reasons other than as arise from considerations of confidentiality. That is my slight quibble with the alternative versions. I beg to move.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities

My Lords, I rise to speak to Amendments Nos. 13 and 14, which are grouped with government Amendment No. 12. Before turning to the precise matters, it is worth noting that across an increasing number of government Bills the issue of how personal data and sensitive information are dealt with is becoming more and more important. Therefore, I eagerly anticipate the opinion that the Minister has suggested will be with us before the next stage of the Bill.

In a wider sense we are returning to some of the arguments that were attached to Amendment No. 10. We all accept that the work of the agency necessitates the giving and the receipt of sensitive information. We all accept that there will be times when publication of information is detrimental to health protection. However, we similarly believe that a critical part of the efficacy of the agency is its ability to engender trust with other agencies and with the public. The Minister was absolutely right to get his retaliation. We have used the food standards Act as the basis for the amendment that we have before us because we believe that it gets the balance right in terms of disclosure of information. We have had to do so because there is still no satisfactory definition of what is and is not in the public interest.

In preparing the amendments that we are discussing, we on these Benches consulted the HPA website. If you follow the links through to freedom of information, you come across the Health Protection Agency code of practice on openness, and a very good document it is. It states:

"We will aim to publish, as swiftly as practicable, any substantive information or advice we provide to others, either actively or in response to specific requests. Advice on largely local matters may be issued in conjunction with or through partner organisations, such as Primary Care Trusts.

"The HPA will make publicly available results, analyses and conclusions in as timely a manner as possible, especially when there are implications for protecting health and will lead to action by the HPA or others".

The agency goes on to explain circumstances in which it will not do that. It also goes on to explain how one can register a complaint about the lack of publicly available information.

Having read that, we believe that Amendments Nos. 13 and 14 are much closer to the actual working practice of the agency than that of the Government. The Minister said that we were all trying to get to the same place. I think that is true but the architecture of this particular part of the measure does not make that apparent at all. We believe that the amendment that stands in our name and that of other noble Lords is the route to follow to get to the position which the agency probably knows it is in whereby it makes decisions on every piece of information regarding whether or not it is in the public interest for it to be published. As I say, we on these Benches prefer our wording to that of the Government.

Photo of Earl Howe Earl Howe Conservative 1:30 pm, 6th April 2004

My Lords, I support the noble Baroness, Lady Barker, in all that she has said.

One of the other attractive features of our amendment is that it makes clear that it is the agency which makes the judgment on whether or not to withhold information in the public interest. The Bill is not specific on that point even with the amendment that the Government are now proposing, although in Grand Committee the Minister told us that that, indeed, was the intention.

In our earlier debate, my noble friend Lord Fowler expressed a very valid concern, which was that a government at some point in the future might regard publication of certain information as embarrassing and thus prohibit it on the grounds of the public interest. If it is, indeed, the agency which has the prerogative to decide whether or not to withhold publication, let that be spelt out on the face of the Bill. Similarly, why not make it absolutely clear that the public interest is normally served by publication?

I come back to a point I made in Grand Committee. What is at stake here is public confidence. The more transparent the agency is, the more confidence the public will have in it. I still think that we need something rather more explicit than the wording in this part of the clause. I hope that the Minister will not be impervious to that point if we return to the matter at Third Reading.

On Question, amendment agreed to.

[Amendments Nos. 13 and 14 not moved.]

Clause 8 [Transfer of property and staff etc.]:

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

moved Amendment No. 14A:

Page 6, line 2, leave out "one or more schemes" and insert "a scheme"

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, Amendments Nos. 14A and 15A respond to a grammatical worry that the noble Earl, Lord Howe, and the noble Lord, Lord Skelmersdale, raised in Grand Committee and which the noble Earl, Lord Howe, raises again resolutely in these amendments.

I understand that the noble Earl, Lord Howe, is of the view that the wording "one or more schemes" is incorrect. Tempting though it is to engage with him at length on this, I shall resist. As promised in Grand Committee, we have considered the point further—indeed, we have wrestled with it—and we are still to be persuaded that the Bill as drafted is incorrect grammatically. However, in a spirit of co-operation and good will, we have responded to the noble Earl's concerns by means of the government Amendments Nos. 14A and 15A. These replace "one or more schemes" with "a scheme". I think the noble Earl is bound to agree that that is an elegant solution. It is supported by the fact that Section 6(c) of the Interpretation Act states that words in the singular include the plural, so the new wording in the government amendments will allow the appropriate authorities to make just as many schemes as before.

I turn now to government Amendment No. 17. The Bill gives the agency a number of functions, set out in Clause 2(l) and Clause 3(l) and (2). It also provides for the agency to be directed to have, or to exercise, other functions. This second group of functions, once given to the agency, may in principle subsequently be removed from it. The government amendment is needed to take account of the possibility that functions—and the staff involved in delivering them—may be transferred from the agency.

Noble Lords will be familiar with the Transfer of Undertakings (Protection of Employment) regulations, also known as TUPE. The purpose of TUPE is to ensure that the employment rights of employees are not removed following the transfer of work in which they are engaged. Indeed, if an employee spends more than 50 to 60 per cent of his time carrying out the work which is to transfer, he should transfer with the work. However, the TUPE regulations do not always apply to transfers within the public sector. To cover those situations Cabinet Office guidance provides, broadly, that where, as a matter of law, TUPE does not apply, for example on the transfer of an administrative function between different parts of the public sector, protection equivalent to that provided by TUPE should be provided. To ensure this, relevant staff should be transferred legislatively.

The government amendment provides for an appropriate authority to make a scheme on the transfer of a function from the agency pursuant to Clause 2 or 3. The scheme would provide, as at paragraph 3 of Schedule 2, that such a transfer does not break the continuity of an individual's employment.

Before making the scheme, the appropriate authority must consult each person or body that it must consult in respect of the variation or revocation of the direction or order under Clause 2 or 3.

In bringing forward the amendment, I should make clear that neither we nor any of the other appropriate authorities have any expectation at present that such functions would be transferred from the agency. But if such an eventuality were to arise, none of us would want those staff to be disadvantaged, and the amendment provides for that.

In our anxiety to put the language right in the text of the Bill, we overlooked the fact that in the amendment that we brought forward forensic examination must have been insufficient. Clearly, we shall have to table yet another amendment at the next stage and we can have this debate again at Third Reading. With that proviso, I hope that noble Lords will accept the amendment. I beg to move.

Photo of Earl Howe Earl Howe Conservative

My Lords, may I be the first to offer two or more cheers for the government amendments and to thank the Minister for the strenuous efforts that she has made to resolve this extremely important matter? I look forward to a further debate on the subject at Third Reading.

On Question, amendment agreed to.

[Amendment No. 15 not moved.]

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

moved Amendment No. 15A:

Page 6, line 19, leave out "one or more schemes" and insert "a scheme"

On Question, amendment agreed to.

[Amendment No. 16 not moved.]

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

moved Amendment No. 17:

Page 6, line 25, at end insert—

"(6A) If the appropriate authority varies or revokes a direction or order under section 2 or 3, it may make one or more schemes for the transfer of the rights and liabilities of the Agency specified in subsection (6B) to a relevant transferee.

(6B) The rights and liabilities are the rights and liabilities relating to the contract of employment of any individual whose employment, in the opinion of the appropriate authority, relates wholly or principally to the Agency's exercise of a removed function.

(6C) A removed function is a function which is the subject of the direction or order which the appropriate authority varies or revokes.

(6D) A relevant transferee is an entity which, following the variation or revocation of the direction or order, is to exercise the removed function.

(6E) The appropriate authority must not make a scheme under subsection (6A) unless it first consults, in respect of the scheme, each person or body that it must consult in respect of the variation or revocation of the direction or order under section 2 or 3."

Photo of Lord Skelmersdale Lord Skelmersdale Conservative

My Lords, I apologise for wearying the House but I have a small problem with new subsection (6D) in Amendment No. 17; namely, it suddenly states:

"A relevant transferee is an entity".

To me, a transferee is human and an entity is not. Would the noble Baroness be good enough to go back to the draftsman and clarify that point? I am sure that I have bounced her and that she will be unable to answer now.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, since the interpretation has stood us in such good stead in relation to "scheme" or "schemes", I shall certainly go back to see what it says about the word "entity" and whether there is a human connotation to it.

On Question, amendment agreed to.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 18:

After Clause 9, insert the following new clause—

"HEALTH CARE PROVISION: STANDARDS

(1) In so far as any health care is provided by or for the Agency it is to be treated for the purposes of the standards provisions as an English NHS body.

(2) Health care must be construed in accordance with section 45 of the Health and Social Care (Community Health and Standards) Act 2003.

(3) The standards provisions are Chapters 2, 3 and 10 of Part 2 of that Act.

(4) The references in section 53 of that Act (failings of bodies) to special measures are, in relation to the Agency, references to anything that may be done by the appropriate authority in pursuance of section 4 above.

(5) Section 57 of that Act (studies as to economy and efficiency, etc.) does not apply to the Agency.

(6) This section does not extend to Scotland and Northern Ireland."

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, the Health and Social Care (Community Health and Standards) Act provides, among other things, for the establishment of the Commission for Healthcare Audit and Inspection, which came into existence on 1 April 2004.

The Health Protection Agency, in its current incarnation as a special health authority, falls within the scope of the bodies which the Commission for Healthcare Audit and Inspection is responsible for inspecting. We want the functions which the HPA currently carries out to remain within the scope of what the commission inspects when the agency is reconstituted as a non-departmental public body. We made that clear in the report that we produced on the outcome of the 2002 consultation exercise.

The government amendment provides for the agency to be subject to review and inspection by the Commission for Healthcare Audit and Inspection. It does so, among other things, by applying to the HPA the provisions in the 2003 Act which allow the Secretary of State to prepare and publish statements of standards in relation to the provisions of healthcare, as set out in Section 46 of that Act. I beg to move.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities

My Lords, perhaps I may seize the opportunity to ask the Minister why proposed new subsection (5) is included in the amendment.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, my brief does not—says he fumbling his way through it—adequately cover that particular point, but I shall write to the noble Baroness.

On Question, amendment agreed to.

Schedule 1 [Health Protection Agency]:

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Shadow Minister (Agriculture), Environment, Food & Rural Affairs 1:45 pm, 6th April 2004

moved Amendment No. 19:

Page 9, line 9, at end insert ", one of whom is an employee of the equivalent public health organisation in Wales"

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Shadow Minister (Agriculture), Environment, Food & Rural Affairs

My Lords, the amendment concerns the membership of the agency. Indeed, page 9 of the Bill lists the persons who are members of the agency. Paragraph (d) of sub-paragraph (1) refers to the prescribed number of executive members, and the point of the amendment is that we want one of the employees of the equivalent public health organisation in Wales to be a member of the executive.

I am moving the amendment on behalf of the noble Baroness, Lady Finlay, who apologises for her absence. She, along with other Members of this House, is currently in Paris for the celebrations of the entente cordiale with the Queen and the President of France.

In Committee on 3 March, as reported in Hansard at col. GC 309, the Minister, the noble Baroness, Lady Andrews, and the noble Baroness, Lady Finlay, agreed that further reflection on this amendment should occur. The reasons for the amendment are clear. It is essential for the health protection services in England and Wales to be in harmony, delivered through a partnership of the Health Protection Agency and the National Public Health Service for Wales.

The National Public Health Service incorporates a specialist health protection function and includes integrated microbiology, communicable disease control, environmental health and epidemiological services. As well as protecting the population of Wales, those units also provide specialist reference laboratory services for the UK, processing more than 23,000 specimens from England last year.

Research being undertaken by the National Public Health Service is also contributing to policy and strategic development in the two countries. The Welsh service also runs the zoonosis surveillance unit for England and Wales. The Health Protection Agency reciprocates, providing specialist services for Wales.

Disease does not respect political or geographical boundaries. If we are to ensure the long-term health of the nation, it is essential that the services on this island co-operate and work in harmony. They must have common strategies and policies, common standards and integrated information-sharing processes. Combined representation at each organisational level is required.

The National Public Health Service for Wales does not have a specialist board as it is part of an NHS trust. However, it has invited representation from the Health Protection Agency on to committees at all levels of its management structure, including its executive management team. Organisational arrangements need to reflect the requirement of both agencies to serve the populations of both countries and ensure that their programmes are properly aligned; otherwise, there is potential for them to work out of synchrony.

A non-executive director, although playing a key role on the board, would not have a first-hand grasp of the detail in the wide spectrum of strategic and operational issues that need to be addressed. A presence at executive level on the board of the Health Protection Agency would ensure that the service in Wales continued to develop to meet the needs of England, too. It would ensure that there was integrated strategic planning, allowing long-term service growth, and a co-ordinated rapid response at local level to biological threats, both infectious and malicious through terrorism. It would maximise cost-efficiency and assist in maintaining the co-ordination of planning between the two organisations.

There is a history of good working relationships, maintained through professionalism of the staff across political boundaries. The organisational structures must complement and reinforce that to ensure the most effective health protection. I have in my hand a letter to the noble Baroness, Lady Finlay, which refers, in part, to the upshot of what I have just said. Indeed, it refers to co-operation between the HPA and the National Public Health Service for Wales. In that, the noble Lord, Lord Warner, states that there are close links at working level. In particular I know that the noble Baroness, Lady Finlay, welcomes the giving to each other of observer status on the boards of the two organisations. As the HPA has confirmed, it is happy to do so in the case of a representative of the National Public Health Service for Wales.

That is welcome but we still feel very much that there is a need for an executive board member. I shall be interested to hear the Minister's response. I beg to move.

Photo of Lord Fowler Lord Fowler Conservative

My Lords, Amendment No. 20 in this group, tabled in my name, touches on corporate governance. The point of the amendment is to ensure that only people of independent judgment are appointed to the board of the Health Protection Agency. The reasons for that are clear. First, the public rely on the impartial reports of the agency. We do not want any possible interference with that process and certainly do not want political placemen on the board. Secondly, as Ministers will know, in the outside world of industry great attention is currently being paid to issues of corporate governance and in particular to ensuring that boards of companies are made up of men and women of independent judgment who will not do simply what the executives want.

I have to admit that there was a rather special reason for tabling the amendment, even, perhaps a little mischief. Back in 1998, when I was shadow Home Secretary, I was approached by the then Home Secretary, Mr Straw. He explained who he was appointing as chairman of the Youth Justice Board. I cannot remember his precise words but they were to the effect that it might look like a party appointment but the new chairman was not really a figure of party politics. I observe that that non-party political figure has now developed into the noble Lord, Lord Warner, the Minister in charge of the passage of the Bill through this House. However, I shall be fair, as I always am, to the Minister. I make no personal complaint about the way he chaired that board, although I have to admit that I had moved on by the time that he really got going.

That raised, for me at any rate, a general principle; that is, that we do not want outright government supporters—supporters of any government—to be chairing boards which are scrutinising the policy-making process or at least part of it. I raised that point in Committee and received what I regard as a "double whammy" reply. The first page stated that it was from the Parliamentary Under-Secretary of State, Lord Warner, and the last page was signed by Kay Andrews. So, I think I can take it that it was the collective view of the Government on this issue.

The letter stated, rather oddly, that neither the NHS Appointments Commission nor the Office of Commissioner for Public Appointments recognises the concept of political impartiality. That seemed to me to be a good start. However, it then conceded that since 1998 there have been concerns that the number of politically active appointees within the health service is higher than in any other group, and that in 1999 the Commissioner for Public Appointments set up a scrutiny group to address growing concerns that increasing numbers of politically active Labour Party supporters were being appointed to positions in the NHS. The group found examples where political associations had been a decisive factor in candidates' appointments and that such appointments had not always been made on merit. That is not my view; that is what the commissioner said.

The commissioner also concluded that the process had been politicised by systematically inviting Members of Parliament and local authorities to nominate candidates at the start of the process and seeking MPs' comments on short-listed candidates for the chair.

The Ministers then went on to quote figures, which I found curious. They said, obviously quite rightly, that in 1999–2000 around 23.7 per cent of the appointments made in the National Health Service were political appointments; 15.98 per cent were Labour; 4.1 per cent were Conservative and 2.28 per cent were Liberal Democrat. The Government then set up the NHS Appointments Commission and stated that that effectively resolved these problems.

Figures were then quoted from the 2002–03 report, which seems to me to do anything but show that these problems have been resolved. They show that in 2002–03, 26.1 per cent of the National Health Service appointments were political; 17.18 per cent were now Labour; 4.5 per cent were Conservative, and 3.2 per cent were Liberal Democrats. That requires explanation.

I am not sure that the reply that this is simply a function of the number of applications is satisfactory. That begs the question how many have been prompted to reply, and also raises the question of the disincentive inside the system for knowing exactly what takes place. As far as concerns the Health Protection Agency, I am glad that only one of the 12 non-executive directors is politically active, who is apparently a Conservative. It seems to me that what the Ministers are relying on and what is their argument in precis is that, in effect, "Dreadful things are happening in the National Health Service generally. All kinds of Labour appointments are being made, far too many proportionately but you will be glad to know that as far as the Health Protection Agency is concerned this is an exception to the rule and everything there is hunky dory". If that is their case, it is a curious one to put before the House. I hope that that is not an unfair summary of the Ministers' argument. However, it seems to me that thanks to the Ministers, a rather bigger issue has been revealed than I thought existed hitherto.

I should be grateful to the Minister for further clarification of the position. However, in the mean time I can think of no objection to placing in the Bill a requirement as regards appointments to the board of the Health Protection Agency that members should be people of independent judgment.

Photo of Earl Howe Earl Howe Conservative

My Lords, my Amendment No. 26 is pre-empted by government amendment No. 25A. However, I hope I shall be allowed to speak to it in this group and I assure the Minister that I do so in a spirit of entente cordiale within this Chamber, if not the kind to be found accompanying the noble Baroness, Lady Finlay.

In Grand Committee the Government amended paragraph 23(2) of Schedule 1 in a way that in my view introduced an unnecessary ambiguity. Surely, what is intended by the paragraph must be that if the Auditor General for Wales wishes to exercise the power set out in sub-paragraph (1) he must first consult the Comptroller and Auditor General and that the same duty applies in equivalent circumstances to the Auditor General for Scotland. As amended, the wording appears to say that neither the Auditor General for Wales nor the Auditor General for Scotland may act individually unless both have consulted the Comptroller and Auditor General. Surely, that cannot be the intention, and I believe that here as elsewhere we should remove all semblance of double meaning. My amendment is designed to address that difficulty but since I tabled it the Government have tabled their own, which, though adopting a different approach, I am delighted to welcome.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip) 2:00 pm, 6th April 2004

My Lords, a spirit of entente cordiale is breaking out all over. I wish I knew the Welsh equivalent. I think that the noble Lord, Lord Livsey, drew a short straw. It is a shame that he could not have gone with the noble Baroness to Paris, instead of moving her amendment; but we miss her when she is not here.

I start by saying that I fully endorse the view that there needs to be close harmony—a typically Welsh expression—between the Welsh and the English services. We are very keen to see the good working relationships which already exist in this field continue. Our problem is that we are not persuaded that the amendment provides the best way of achieving that. Perhaps I may spend a little time explaining the nature of the executive appointment which the Welsh Assembly seeks.

The Bill currently provides for two sorts of appointment to the agency. I stress that the arrangements were agreed between the devolved administrations and the Government before they were introduced.

First, there are the appointments of the chair and the non-executives. These are public appointments made on merit, after open competition, as required by the Commissioner for Public Appointments. Such appointments are intended to bring people with a variety of expertise on to the agency's board. The noble Lord outlined the sorts of expertise that are already present and at work in the Health Protection Agency and in the National Public Health Service in Wales. It is because they can be appointed on this basis that they will bring—we are convinced—great influence and power in terms of the strategic direction of the agency. But—as the title suggests—non-executives do not have executive responsibilities for running the agency.

The Secretary of State—under Section 187 of the Health and Social Care (Community Health and Standards) Act 2003—and the National Assembly for Wales—under Schedule 1, paragraph 2, of the Bill—will also have the power, if they wish, to delegate their appointment functions to a special health authority—in practice, the NHS Appointments Commission. But again, the requirements for open competition will still apply.

The Bill already gives the National Assembly for Wales the right to appoint a non-executive member of the agency. The noble Lord suggested that that was a rather narrow opportunity. I would dispute that. I think that we would want to see precisely that sort of scope being brought by Welsh scientists and medical expertise. It may be worth mentioning that one of the non-executives appointed by the Secretary of State to the board of the HPA Special Health Authority works for the health service in Northern Ireland and is bringing in that kind of expertise.

Secondly, there are the appointments of the chief executive and the executive members of the agency. These are not public appointments. They are not made by Ministers or by the NHS Appointments Commission and will be made by the chair and the non-executives within the framework set by the Bill. The Bill provides for the chief executive to be a member of the agency, but it will be for the agency itself to decide whom to appoint as its chief executive.

In the case of the executive members, the Bill provides that the Secretary of State, after consultation with the devolved administrations, will prescribe in regulations a number of executive members. Once he has prescribed a number, or a range of numbers, it will be for the chair and the non-executives to decide which members of the agency's staff they wish to appoint as executive members. Their decisions on this will be bound up with the way they decide the agency should be structured—that is by definition to do with running the agency—and what the top-level posts in it should be. In other words, the chief executive and the executive directors are appointed to the agency's board on the basis of the executive responsibilities that they hold within the agency itself.

At this point, I should add that in principle there is a third way. The noble Lord has alluded to it. It is possible for a person to participate in the activities of the agency board as an observer. I know that that has been welcomed. I should say that observer status can bring great value and influence to the board. Many bodies already have them and recognise their value. An observer is not, of course, responsible for running the body but he or she can in principle play a very active role, bringing to it a range of expertise and advice and contributing to and influencing discussions.

The agency, which will be established by the Bill and the HPA Special Health Authority, are, of course, separate bodies, but their functions have much in common. It is worth noting that the special health authority has already invited the National Public Health Service for Wales to send an observer. We see that as a very effective way to make sure that issues such as lack of co-ordination and lack of understanding can be overcome. So we have these alternatives—a non-executive member and an observer.

I accept that the Bill does not do what the noble Lord has argued. It does not provide that an employee of the NPHSW can be appointed as an executive member of the agency, unless that person was seconded to the agency, in which case he would hold executive responsibilities there. Our strong sense is—and we have thought about the issue and had correspondence about it—that it is not appropriate that the Bill should provide for a person who holds no executive responsibilities in the agency to be appointed as an executive member of the agency

There are three reasons: first, executive members are responsible for running the agency, but they are not there to represent the views of another body. In fact the noble Lord used the term "representation". It is possible that the agency and the NPHSW might take different views on something. In what position would that place the representative?

Secondly, it is for the chair and the non-executives to decide what executive appointments they wish to make. If we were to suggest what we wanted to see, we, as a government, would be accused of micro-management. There is no greater slur on any government. We spend a lot of time resisting that.

Thirdly, we should say that we have other reservations. The noble Lord, Lord Fowler, in the course of our debates has tabled a number of amendments, which have usefully reminded us of the importance of following proper appointment procedures. If the amendment of the noble Baroness, Lady Finlay, and the noble Lord, Lord Livsey, were to be accepted, I strongly suspect that some might see it as a way of bending the rules away from open competition which would be required for a non-executive appointment.

We want to achieve close working relationships. We are very clear that we want to support that in all forms. There is a very strong case for close links. For example, I understand that the memorandum of understanding between the HPA Special Health Authority and the NPHSW is close to being finalised. I am sure that that will set out the way in which these things should work.

All these measures can be pursued without the need for primary legislation. In the light of that explanation I hope that the noble Lord will be reassured on behalf of the noble Baroness, Lady Finlay, and will accept that, having given the issue careful thought, we must beg to disagree on that.

I turn to Amendment No. 20 in the name of the noble Lord, Lord Fowler. It just proves what a big mistake it is to show any generosity and especially to put it in a letter and have it read back to you—selectively, I should say.

There are a few things that I want to say. Indeed, to prove my case I pray in aid my noble friend, who to all intents and purposes is one of the most independent Members of the House, even though he sits on the Front Bench—and an excellent appointment it was.

Amendment No. 20 would write into primary legislation a requirement for the Secretary of State for Health to ensure that all appointees to the agency should be of independent judgment. We support that. We are fully behind that amendment, but we do not believe that it is either necessary or workable in practice. It is unnecessary because we are already fully committed to following the guidelines issued by the Office of the Commissioner for Public Appointments. The core principle of those guidelines is that appointments should be on merit. The appointments process is intended to ensure that people who have the necessary skills and expertise have the opportunity to make that contribution. Of course, different appointments call for different qualities. I would be surprised if the term "merit" did not generally require a person to show independent judgment.

Secondly, it is not clear at what stage the Secretary of State would be expected to form his view. Would he wait for the appointments panel to make recommendations on merit, and then substitute his own view of who was of independent judgment, or who was of more independent judgment?

In the context of Clause 7, we discussed the suspicions that some feel about the possibility that Ministers might substitute their views for those formed by independent bodies. Leaving aside the uncertainties over exactly what is meant, I do not think that the devolved administrations would welcome the role that this amendment would give to the Secretary of State. Those administrations have the power to appoint a non-executive member. Would this amendment allow the Secretary of State to veto the appointments? The sensible approach is to leave the detailed requirements for appointments to the Commissioner for Public Appointments—it is his job—rather than to write them into the Bill. I have every confidence that the systems are in place.

I am glad that the noble Lord had such sport with our letter. The one thing that he did not quote was that the Appointments Commission commissioned the Nuffield Institute to look into the issue further. It noted that a larger proportion of Labour supporters were being appointed, but that this was not disproportionate to the number of applications received that declared political activity for the Labour Party. Therefore, the institute concluded that there was no bias. I remember saying in Committee that there is a difference between impartiality and independence. It is difficult to find people who do not have political views. We had a slight reprise of that discussion.

On the noble Earl's Amendment No. 26, I am glad that we were able to come to the conclusion that the text, as it was, was confusing. It was not clear in which order, or at what point, people would have to consult. Our substitution for that is much clearer. It makes the process crystal clear in relation to the Comptroller and Auditor-General.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Shadow Minister (Agriculture), Environment, Food & Rural Affairs

My Lords, I welcome the spirit in which the Minister's reply has been given, and the arguments, which have been put in such a beguiling way. The issues of the members of the board and of the HPA, and of non-executive and executive members, have been covered extensively by the Minister's reply. We will study the Minister's reply in some detail.

I repeat briefly something that I said during my speech, that the service in Wales provides specialist reference laboratory services and process over 23,000 specimens from England each year. It also runs the zoonoses surveillance unit for the whole of England and Wales. That makes a case for an executive status. Perhaps the Minister can think about that.

I know that the noble Baroness, Lady Finlay, will study the response in great detail. It may or may not find its way back here at a later stage of the Bill. I refer in passing to the amendment proposed by the noble Lord on the independence of members of the HPA. He made some telling points about that, and the jury is still out on the assurances that all is now well. I have no doubt that some new statistics will appear, which the noble Lord will analyse further. However, we will consider the Minister's reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 to 23 not moved.]

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendments Nos. 24 and 25:

Page 12, line 34, leave out "it" and insert "the Department"

Page 12, line 35, leave out "it" and insert "the Assembly"

On Question, amendments agreed to.

Photo of Lord Elton Lord Elton Conservative

My Lords, if this amendment is agreed to, I shall not be able to call Amendment No. 26.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 25A:

Page 13, line 34, leave out sub-paragraph (2) and insert—

"( ) A requirement under this paragraph must not be made unless the person proposing to make the requirement first consults the Comptroller and Auditor General."

On Question, amendment agreed to.

[Amendments Nos. 26 and 27 not moved.]

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendments Nos. 28 and 29:

Page 14, line 16, leave out "it" and insert "the Department"

Page 14, line 23, leave out "it" and insert "the Assembly"

On Question, amendments agreed to.

Schedule 3 [Amendments]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendments Nos. 30 to 37:

Page 16, line 25, leave out "In the Parliamentary Commissioner Act 1967," and insert—

"( ) The Parliamentary Commissioner Act 1967 is amended as follows." Page 16, line 27, at end insert—

"( ) In the Notes to Schedule 2, after paragraph 11 there is inserted the following paragraph—

"12 (1) This paragraph applies in relation to the Health Protection Agency.

(2) No investigation is to be conducted in relation to any action taken by or on behalf of the Agency in the exercise in or as regards Scotland of any function to the extent that the function is exercisable within devolved competence (within the meaning of section 54 of the Scotland Act 1998)."" Page 18, line 26, leave out paragraph 13.

Page 19, line 18, leave out "for sub-paragraph (v) there is substituted the following sub-paragraph" and insert "after sub-paragraph (v) there is inserted "or""

Page 19, line 20, leave out "(v)" and insert "(vi)"

Page 19, line 21, leave out "for sub-paragraph (iii) there is substituted the following sub-paragraph" and insert "after sub-paragraph (iii) there is inserted "or""

Page 19, line 23, leave out "(iii)" and insert "(iv)"

Page 19, line 34, leave out from beginning to "(persons" and insert—

"19 (1) The Scottish Public Services Ombudsman Act 2002 is amended as follows.

(2) In section 7 (matters which may be investigated: restrictions), after subsection (6) there is inserted—

"(6A) The Ombudsman must not investigate action taken by or on behalf of the Health Protection Agency in the exercise in or as regards Scotland of any function to the extent that the function is not exercisable within devolved competence (within the meaning of section 54 of the Scotland Act 1998 (c. 46))."

(3) In Schedule 2"

On Question, amendments agreed to.

Schedule 4 [Repeals]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 38:

Page 20, line 22, at end insert—

"Health and Safety at Work (Northern Ireland) Order 1978 (S.I. 1978/1039 (N.I. 9)) Article 52"

On Question, amendment agreed to.