Health Bill [Lords]

Public Bill Committee, 25 June 2009.

Written evidence to be reported to House

Robert Key (Conservative, Salisbury)

I draw the Committee’s attention to the fact that I have changed some of the amendment groupings since last we met and I understand that that is acceptable to both sides. May I ask that we keep interventions short if we wish to complete on time this afternoon?

Schedule 5

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 69, in schedule 5, page 55, line 26, at end insert—

‘(4) Where the Local Commissioner chooses not to disapply, he must write to the complainant giving reasons for his decision.’.

It is a great pleasure to resume under your chairmanship, Mr. Key, and to welcome the Minister back to his place —just!

As we discussed on Tuesday, the ombudsman has the power to waive the form and date limits on the complaint, if he wishes. I can see no obligation in the Bill for him to give reasons for choosing not to take forward a complaint. As the complaints procedure is intended to be taken up by the ombudsman—whose usual approach is primarily focused on maladministration—it is fair that he should give reasons where he “chooses not to disapply” the rules on form and content. Our amendment would place such a responsibility on the ombudsman, which would be good practice, in any case. I hope the Minister will confirm that when complaints are not taken forward, complainants will be given the reasons why.

Mike O'Brien (Labour, North Warwickshire)

The powers in the Bill to disapply the specified requirements mirror those in the legislation governing complaints about local authority social services. Those arrangements work well. The ombudsman operates a flexible approach, often using his discretionary powers for the benefit of the complainant. Every complaint involves a dialogue between the ombudsman and the complainant at an early stage. It would be apparent very early, through this process of dialogue, whether disapplying the specified requirements was necessary. As that dialogue already occurs, an additional requirement to explain a decision not to disapply in writing seems unnecessary. The aim and practice is that by the time the dialogue has been completed, the complainant is aware of why a decision has been made. That is how things have operated up to now and we want that process to continue to apply.

Stephen O'Brien (Conservative, Eddisbury)

The exchange has been helpful. No doubt the ombudsman will read this in due course and will have some sense of—as the Americans put it—moral suasion, which will help to make sure that reasons are given. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 70, in schedule 5, page 56, leave out line 14 and insert—

‘(2) The Local Commissioner may choose to conduct an investigation under this part in private.’.

Robert Key (Conservative, Salisbury)

With this it will be convenient to discuss amendment 105, in schedule 5, page 57, line 15, at end insert—

‘(8A) A Local Commissioner may apply to the High Court in order that a judge may issue any order in regard to evidence with the powers of compulsion available to such judicial authority which would not otherwise be available to the Local Commissioner’.

Stephen O'Brien (Conservative, Eddisbury)

The Bill states:

That has resonances of yesterday’s motion on the Floor of the House. Will the Minister explain to the Committee how far that extends? What does “this Part” refer to? Is it just the new clauses before us? Surely the ombudsman should be given the freedom to decide whether to conduct investigations in public or private. Is he not able to make that decision? In the week that the Government are feeling a touch of the heat about matters such as this, I hope they will regard the ombudsman as having discretion to make that decision more freely than is apparent in the Bill.

The commissioner has only civil powers of compulsion, but amendment 105 seeks to enable him to obtain, through a judge, the powers of compulsion used in criminal actions, that is not just over people, but over documents, too. Dredging into my past practice as an international commercial litigator and arbitrator, I remember that it was enormously helpful in civil cases to be able to apply to a judge to seize documents under an Anton Piller order, or a subpoena duces tecum. Those concepts will be familiar to the Minister. At present, it appears that the ombudsman has no powers to obtain the sort of evidence that might be required to ensure that this as a complaints procedure, rather than as a referred, typical ombudsman’s procedure, will give the necessary satisfaction. Without the opportunity for compulsion, the appeals process and the complaints process will not carry with them the confidence that all the evidence necessary in order to ensure that a complaint is properly heard and adjudicated upon is available, and that the process is sufficiently robust to be worthwhile, rather than simply avoiding putting a whole separate complaints process in place and parking it with the ombudsman. This is a bit of a test as to how truthfully the scheme is intended to operate, without the powers of compulsion with which the Minister, in terms of legal concepts, will be familiar— this balance between the normal powers of compulsion within the criminal court where, of course, the burden of proof is of a much higher standard than in the civil courts. This seems to relate to a more voluntary, civil-type arrangement, and even in the civil courts, rather than in the case of the ombudsman, as referred to here, there is a danger that, without the powers of compulsion that I would expect to have been able to use in relation to a civil action, the ombudsman’s role and remit could be unnecessarily severely limited.

Mike O'Brien (Labour, North Warwickshire)

The current local authority scheme operated by the ombudsman under part 3 of the Local Government Act 1974 contains exactly the same provision for investigations to be conducted in private. It is generally also the case with other public service ombudsmen’s investigations.

One of our aims in these provisions is to mirror, where appropriate, the procedures that apply to the local authority scheme. Of course, if there are any good reasons for a different approach, we will listen to them. In the case of investigations being conducted in private, however, I do not think there should be any difference between the two schemes.

There are also sound arguments in favour of investigations being conducted privately in relation to these matters. For example, the matters complained about may be to do with health or care and may be of a confidential or personal nature. The effectiveness of the scheme is, to a large extent, dependent on how well it enables the ombudsman to get to the truth of the matter. This means that procedures that encourage the giving of accurate evidence are important. If there was a requirement to hold investigations in public, that might hinder openness on the part of some witnesses.

The ombudsman’s procedures are not like a court of law. They are meant to be flexible and effective, capable of being carried out speedily, and they are designed to bring out the salient features as efficiently as possible, to allow the ombudsman to reach a conclusion as reasonably expeditiously as possible. While it is possible for witnesses to have legal representation, the ombudsman aims to regulate the investigation and to ensure that it does not become costly, bureaucratic, or unduly cumbersome. I fear, however, that is exactly what would happen if investigations were to be held publicly. I therefore believe that it is entirely appropriate that we should keep the ombudsman’s operation in a particular area without trying to apply to it a whole list of legalistic concepts that may have a real relevance in a court of law, but which would undermine the very nature of the ombudsman’s role.

Amendment 105 seeks to allow the ombudsman to apply to the High Court for a judge to use the powers of the court in relation to evidence. There are certain powers here anyway for the ombudsman. In the proposed new section 34G, the ombudsman has the same powers as the High Court to compel the attendance and examination of witnesses and production of documents. This means that anyone not complying with a reasonable request of an ombudsman may be in contempt of court and subject to the penalties associated with it.

If a person obstructs an investigation, or is guilty of an act or omission in relation to an investigation, which could constitute contempt of court in proceedings in the High Court, the ombudsman may certify this as an offence to the High Court. The High Court then would deal with the person charged as though they had committed the same offence in relation to the High Court.

The hon. Member for Eddisbury proposes to make further remedies available to the ombudsman, which would enable him to take steps beyond those he is currently able to take. I am concerned that, if we start to extend significantly the powers of the ombudsman in this area alone, the real risk is that we import into it a whole series of legal concepts, which operate perfectly well in the courts, which are designed to protect those affected by the powers and remedies. However, in the context of the ombudsman’s investigation, it could become extremely legalistic, resulting in the ombudsman being judicially reviewed on all sorts of decisions before the High Court, as well as delaying things substantially, adding to the cost of the ombudsman, and failing to fulfil the whole basis of the speedy review and examination of issues that the ombudsman was intended to facilitate.

I recognise the good will and genuine intentions of the hon. Gentleman to enhance the powers of the ombudsman, the fear is that with those remedies and powers would come a significant examination of legal detail as well as importing legal procedures that would be unduly cumbersome. I hope that, having expressed those concerns, the hon. Gentleman will be able to withdraw his amendment.

John Horam (Conservative, Orpington)

I understand where the Minister is coming from on amendment 70. He seeks to mirror the original legislation because otherwise the process might become burdensome and difficult. He has already simplified the procedure for hearing complaints by cutting out one of the processes and we are now down to two, so the burdensome argument does not really apply.

I also wonder whether this is an issue that, in this day and age, would be helped, in some part, by being held in public. I have a recent personal experience of these procedures where a resident in Bromley took up with the ombudsman the behaviour of some of the chief executives of the Bromley hospitals trust—there have been several chief executives recently. He tried to obtain information about their procedures and the way they handled business. What happened in practice was a prolonged exchange of letters, which was very unsatisfactory. The complainant felt that every letter contained an element of misrepresentation or inaccuracy that he had to correct. It went backwards and forwards endlessly, becoming a prolonged procedure that other people eventually got involved in. Eventually, it was brought to an end by the ombudsman, who said, “This is my final decision and I will not take any more evidence.” In many ways, it would have been better if there had been a short hearing, where the applicant could have challenged some of the points made by the ombudsman and his representative. In fact, it might have been quicker in the end because there would have been a question and answer session, rather than repeatedly sending letters backwards and forwards. I take the point that my hon. Friend the Member for Eddisbury made about what happened on the Floor yesterday, and I wonder whether, in this day and age, we need to move forward a bit and at least give the ombudsman the possibility of taking this course of action where he feels it may be appropriate.

Stephen O'Brien (Conservative, Eddisbury)

Rather interestingly, I had expected to find myself being satisfied with the Minister’s answer on amendment 70 and dissatisfied with that on amendment 105. In fact, it has turned out to the contrary. The answer we had on amendment 105 has been helpful. It seeks to give the necessary strength to the process, but to the extent that powers are described in proposed new section 34G of the Local Government Act 1974, the Minister was able to highlight that there is the appropriate appeal in the contempt process of the High Court. This probably gives the power that we need behind these measures in order to make the compulsion process likely to take place in reality.

In relation to amendment 70, my hon. Friend the Member for Orpington made the point well in the example he gave. The Minister referred to the need to retain flexibility, but that is exactly what the amendment seeks to provide. New section 34F(2) states:

“Every investigation under this Part is to be conducted in private.”

I sought to suggest, as the amendment shows, that

“The Local Commissioner may choose to conduct an investigation under this part in private.”

There would therefore be a presumption. The point about flexibility is therefore better served by our amendment.

Mike O'Brien (Labour, North Warwickshire)

Let me clarify what we mean by “in private”. It is possible for the ombudsman to call both parties into the room and have a discussion between them, so that they can talk both to each other and to the ombudsman. In those circumstances it is still in a sense a private discussion. So the parties may, if the ombudsman were to choose to behave in that way, be brought into a room with the ombudsman. That is not the way the ombudsman system has worked up to now. The hon. Gentleman is suggesting that we should import into one area only of the ombudsman system an entirely different practice.

Stephen O'Brien (Conservative, Eddisbury)

The Minister is right to make that distinction. The reason we are having this debate, even if this is effectively an accretion to the ombudsman’s traditional approach, is because the ombudsman would be used as the complaints process for a new area of activity. That is why this distinction needs to be made. The Minister’s comments are helpful in so far as they make it explicit that the intent here is more of an arbitration type of proceeding, as arbitrations are privately arranged. They park a dispute and the relationships between the parties can carry on; as against litigation where more or less everything comes to a general halt and there is a contentious situation in the court.

As long as it is clear to everybody that that is what we are heading into, it would be counter-productive to press this to a Division. Our exchange makes it clear what type of process we are dealing with, so I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 71, in schedule 5, page 56, line 30, at end insert—

‘FA Complaints: Emergency Action

(1) If, on receiving a complaint under section 34D, the Local Commissioner has immediate and urgent concerns, he may inform—

(a) the Care Quality Commission,

(b) the local authority,

(c) the Police,

(d) the Secretary of State.

(2) The Secretary of State may issue guidelines on circumstances of “immediate and urgent concern”. These may include—

(a) all forms of abuse,

(b) malnutrition,

(c) infection.’.

The amendment will take slightly longer than our canter through recent amendments. It probes what happens if the ombudsman receives a complaint that he deems serious enough for action to be taken immediately. We have termed these “immediate and urgent concerns” and generously allowed the Minister the liberty to set out what they might be in regulations. It empowers the ombudsman to inform any or all of the CQC, the local authorities, the police and the Secretary of State. The specifics on the face of the Bill relate to issues that, as we all know from our case work, have been particularly prevalent in the sector in the last 10 years, namely malnutrition, elder abuse and health care associated infections.

According to the advisory group on malnutrition, malnutrition is an under-recognised and under-treated problem. Evidence suggests that over one in 10 care homes do not have a nutrition screening policy in place and malnutrition has been found to affect one in three adults admitted to care homes and an even greater proportion of people resident in sheltered housing, even though NICE guidance published early in 2006 demands that people resident in care homes are screened when there is clinical concern.

Malnutrition in community settings is not being managed effectively. The case for encouraging care homes to identify and manage malnutrition is highlighted in the recent data from hospital episode statistics, which reveal that the number of people being admitted to hospital with a diagnosis of malnutrition has increased from 72,095 in 1997-98 to 148,946 in 2007-08—a rise of 107 per cent. over that period. This suggests that the nutritional care people receive in community settings such as care homes is deteriorating, meaning that a greater number of people require hospitalisation. The guidance will help address this situation by encouraging a focus on nutritional care by adult social care providers.

Furthermore, mortality from malnutrition is on the rise. The hospital episodes statistics data is reinforced by figures obtained through parliamentary questions, which reveal that 263 people died in care institutions, including care homes, in 2007 from malnutrition—a 9 per cent. increase over 1998 levels. The guidance our amendment proposes could help by stipulating that a death from malnutrition in an institution is an issue of immediate and urgent concern, requiring action by either the Care Quality Commission, the commissioning local authority, the police, or the Secretary of State. Rather than go further into the elder abuse issue, with which Members throughout the House are terribly familiar—and I use the word “terribly” advisedly, as it has been a real shock to us all to find out just how much elder abuse there has been—I shall move on to health care associated infections. A good series of campaigns is highlighting elder abuse, and many of us are doing our best to focus on it and see improvements.

We are all aware of the Government’s performance on HCAIs in hospitals, which, it has been argued over many years, is not creditable. The latest Health Protection Agency figures show that the number of clostridium difficile cases went up by 6 per cent. in the last quarter, while the number of MRSA cases went up by 2 per cent.—although, extraordinarily, the new Health Secretary boasted that he was “proud” of the record on the day that those figures were released.

I fear that the figures expose the Government’s complacency and their failure to tackle that blight. Just two weeks ago, the National Audit Office said that almost a quarter of hospitals still do not have facilities to isolate patients with an infection to stop it spreading. Instead of taking real action, the Department and the Government have pursued measures such as the Prime Minister’s flawed deep-cleaning programme, which has turned out to be one of those deep embarrassments.

However, HCAIs are beginning to appear in community settings, particularly in care homes. We have figures up to only 2005, so those are still small, but they are rising significantly. Deaths from MRSA doubled from 0.02 per cent. to 0.04 per cent. of the care home population between 2001 and 2005. Deaths from C. diff more than trebled over the same period, from 0.03 per cent. to 0.11 per cent. Those numbers are more significant if we posit a care home population of 300,000 to 400,000 people.

Action on this is moving faster across the Atlantic. In fact, this month nursing homes in the eastern regions of Pennsylvania began reporting healthcare associated infections to the state’s Patient Safety Authority through the Pennsylvania patient safety reporting system. Legislation signed as long ago as July 2007 made that reporting mandatory.

What mechanisms will be put in place to enable the ombudsman to take or alert others to take swift action where necessary? If none, I hope that the Minister will accept our amendment. I also hope that he will explain how the Government are acting on health care associated infections, on elder abuse, obviously, and on malnutrition in the care sector, as those are clearly pertinent, powerful and distressing examples. We hope that the complaints procedure, which to some degree picks up on the power that was lost when community health councils were scrapped, because they had the ability to look across the system as well as down into individual complaints, will bring benefit to urgent and immediate policy action.

John Horam (Conservative, Orpington)

My experience is that the statistics for MRSA and C. difficile are very late. The current situation is usually nine months previous, which is one reason that we need to react quickly. I have constantly found that when looking at the situation, one is talking about figures that came out nine months ago. That really is unsatisfactory and I understand that there are reasons for it; it is not easy to pinpoint those things in accurate and timely ways. None the less, when it is apparent that the situation in a hospital is sliding, we need to take urgent action.

Mike O'Brien (Labour, North Warwickshire)

I looked at this issue with some care, and was initially tempted to take the matter back and consider it for Report. The hon. Member for Eddisbury has put his case in a politically contentious way, and I certainly refute his suggestion that there is any complacency about issues of abuse, malnutrition or infection. Those are all serious matters that the Government, certainly, take seriously; institutions like the Care Quality Commission were set up to deal with them. It is precisely because we take those issues seriously that we took legislation through to set up an organisation like the CQC.

We accept entirely that action needs to be taken to deal with incidents of abuse, malnutrition and infection, which occur from time to time and must be tackled without delay where discovered. Under new section 34P, the ombudsman may provide information to the Care Quality Commission if that information appears to be relevant to the CQC’s responsibilities. He can do so as soon as he receives a complaint. He does not have to wait or investigate; he just sends the information. The thing about the CQC is that it has the powers to take immediate action. That includes alerting the independent safeguarding authority as well as taking direct action such as closing a care home immediately, for example. Action can be taken.

Why the local authority, the police or indeed the Secretary of State would be more appropriate needs explanation, as they do not have the regulatory powers and responsibilities of the Care Quality Commission. The Secretary of State, for example, does not have a role in regulating social care directly; that role has been given to the Care Quality Commission. Similarly, local authorities have a role in commissioning care but not in its regulation. Action such as closing a care home is for the CQC, not the local authority.

As for informing the police, that is essentially a decision for the complainant. They might make a conscious choice to complain to the ombudsman rather than the police, but the ombudsman may always suggest to a complainant that a matter needs to be brought to the attention of the police or, alternatively, the CQC. If appropriate—if prosecution is needed, or a particular aspect of the case requires police investigation—the CQC is there, and its job is to refer such matters and ensure that they are dealt with effectively. We have set up a body to which the ombudsman can go to ensure that the necessary action is taken.

The hon. Member for Orpington raised a reasonable concern about statistics being delayed for months or, on occasion, for a year or more. That is a matter of frustration for Ministers as well as for him. He will be aware that many times, Ministers get only a day’s notice of statistics becoming publicly available, so we often have only a limited chance to look at them. We share his frustration about that, but why does it happen? Because statistics must be collated, validated, cross-checked and peer group-assessed, and then conclusions must be drawn from them. Often, that takes time and is a matter for debate within the organisations providing such data, which often seek peer group validation.

The process takes time. That is, I fear, the price of having reliable statistics. The delay causes some of the problems that the hon. Member for Orpington identified, but I am not entirely sure how we might overcome them. He is right to raise the issue and make that complaint, and I share his frustration to some extent, but I do not really have a way to provide him with a remedy, unless we want less reliable statistics.

Sandra Gidley (Liberal Democrat, Romsey)

We all share that frustration with delayed statistics, because they give us less opportunity for scrutiny, but does the Minister accept that most good trusts have the statistics straight away? They spot emerging trends and take action to find out what is going on and work through it. We need to put that on the record; otherwise, we might come to the conclusion that it is only when MPs start making a noise that action is taken, which is rarely the case. Action has usually been taken by the time we investigate, except in rare cases.

Mike O'Brien (Labour, North Warwickshire)

The hon. Lady is absolutely right, and I am grateful to her for putting that on the record. Most trusts take action in relation to statistics that they become aware of privately, before validation, peer group assessment and publication. She is right to point out that it is only where some sort of failure has occurred that MPs must start voicing concerns. I hope that I have given reassurance that the powers for the ombudsman to deal with an abuse that comes before him are indeed available in the Bill and more generally through the CQC.

Stephen O'Brien (Conservative, Eddisbury)

I do not think that it is anything that I or the Minister said that caused Committee members on our Benches to exit completely.

I am grateful to the Minister, who made the important and valid point that proposed new section 34P makes possible immediate reporting to the CQC and the independent safeguarding authority. That is helpful, as is the extension to the police—although there is nothing to stop anyone relaying information at any point to the police—and the Secretary of State. In many ways it was helpful to explore that. The Minister rightly observed, in his answer to the hon. Member for Romsey and to my hon. Friend the Member for Orpington, the timeliness of statistical information coming out, so that action can be taken in a timely way, based on knowledge of the evidence base. That has been useful, so I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 72, in schedule 5, page 58, line 3, after ‘provider’, insert ‘or any other person’.

Robert Key (Conservative, Salisbury)

With this it will be convenient to discuss the following: amendment 73, in schedule 5, page 58, line 9, at end insert—

‘(4A) “any other person” under section 34H(4) may include—

(a) the Care Quality Commission,

(b) the local authority,

(c) the Secretary of State,

(d) the Department of Health’.

Amendment 74, in schedule 5, page 58, line 47, after ‘provider’, insert ‘or any other person’.

Stephen O'Brien (Conservative, Eddisbury)

In the Bill as drafted, specifically in proposed new section 34H(4), the ombudsman is limited to making recommendations with respect to action that the provider should take. However, it seems clear that in some circumstances action taken, or not taken, by individuals working for the provider—rather than the provider—and other individuals and agencies will have a bearing on the complaint. By allowing recommendations to be made to the provider “or any other person”, our amendment would allow the ombudsman to make more far-reaching recommendations if and when necessary. In particular, a complaint might arise from circumstances in which the CQC, the local authority or even the Government should have been responsible. The ombudsman should have the power to make recommendations to them in such situations.

For example, the Alberti and Colin-ThomĂ(c) reports into the recent tragedy at Stafford were prevented from addressing Government-inspired—some would argue—or otherwise-inspired systemic failings other than by legislation, but if there were conflicts of interest, the same principle would apply. One of the things that has been shocking about the Stafford situation, which all of us have been wrestling with and trying to understand, is why on earth, despite all the encouragement of and the law on whistleblowing, the nurses, for instance, did not get together in the canteen and decide that it was time to blow the whistle. Some kind of fear factor appeared to be at play. The system did not operate as intended under a series of legislative and regulatory measures from this place. We must all continue to wrestle with the question of how we create that confidence to come together and provide information.

I hope that the Minister will be able to reflect and explain why the ombudsman is at the moment limited in that respect. Perhaps our amendment would help ensure the removal of such a limitation.

Mike O'Brien (Labour, North Warwickshire)

Our aim with the new scheme is, as far as possible, to be consistent with the existing provisions in the 1974 Act, which govern the ombudsman’s handling of local authority complaints. In those provisions the ombudsman’s recommendations can apply only to the local authority. In the new scheme they can apply only to the adult social care provider. The ombudsman’s recommendations are intended to be a response based on conclusions reached in the investigation of a complaint about the adult social care provider. Such complaints are not complaints about the local authority. Indeed, if they were, they would fall to be dealt with by the existing scheme under part 3 of the 1974 Act. The ombudsman is not dealing with complaints about the Care Quality Commission, the Secretary of State or the Department of Health. That is why we have provided under the Bill for the ombudsman’s recommendations to apply only to the provider. That does not mean that if the ombudsman takes a view that there are concerns that ought properly to be drawn to the attention of others, that cannot be done, particularly when it comes to the Care Quality Commission, local authorities or central Government.

The Bill enables the ombudsman’s statements to be sent to a local authority or to the CQC. Both already have a strong interest in acting on matters that are brought to their attention in that way. It would merely add to the ombudsman’s administrative responsibilities to require formal recommendation to be made to them and to be responded to in a formal way.

The CQC and local authorities have a direct interest in individual cases, but the Secretary of State also has an interest in the wider picture. He needs to reach a strategic view about services and he is assisted in that process by the provision under proposed new section 34R, which requires the ombudsman to conduct a periodic review of the scheme and to convey to Departments and the CQC any recommendations or conclusions that he has reached about how it operates. In the circumstances, we can leave it to the ombudsman to determine whether he needs to go further in relation to such matters.

I do not wish to go into the distressing issues in respect of Mid Staffordshire that the hon. Member for Eddisbury raised. They are of substantial concern and there have been, as he knows, two important investigations into the matter. We need to look at how in the future the ombudsman will deal with individual issues that are drawn to his or her attention. In the case of Mid Staffordshire, there were issues in relation to the staff not bringing the matters out early enough. We want it to be possible for that to happen, but we must also recognise that, if the ombudsman is to investigate anything, he needs to have something drawn to his attention. It is only then that the ombudsman will become involved.

In a sense, the ombudsman does not deal with the concerns that he expressed about Mid Staffordshire, but when a complaint has indeed been made, he then needs to determine how he will deal with it and ensure that other appropriate organisations respond to their duties. We want to follow the existing provisions under the 1974 Act, whereby the ombudsman can, if he feels it appropriate, draw to the attention of the Government any concerns that he might have in relation to the powers, so that they can consider whether any appropriate action is necessary. On that basis, I hope that the amendment will be withdrawn.

Stephen O'Brien (Conservative, Eddisbury)

That is a satisfactory answer. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 75, in schedule 5, page 58, line 24, at end insert ‘and

(c) the Member of Parliament in whose constituency any person concerned under section 34H(6) lives or works.’.

Currently, the ombudsman would have to send a copy of the statement of recommendations for the provider to the CQC and the local authority. Obviously, that is not the same as making recommendations about them. Amendment 75 would see that a copy was sent to relevant local MPs, too. As we all know from our case loads, such complaints are naturally within the purview and sometimes the preserve of MPs, and it seems sensible that local and relevant MPs should be kept in the loop. I hope that the Minister considers the amendment to be helpful.

Mike O'Brien (Labour, North Warwickshire)

The complainant might not wish his MP to see the complaint if it is a matter of privacy. Under the current scheme, the ombudsman can supply copies of statements and another information to Members of Parliament on request. That seems the right approach. I believe that it works perfectly well, and we need to be cautious about interfering with a process that seems to work reasonably well. Hon. Members can obtain information on cases. They are aware of that, for example, when they have correspondence on the matter with constituents. However, intruding an MP into what may be a personally felt case, where a report is shared between people on a confidential basis, may not be what the individual wants. I hope that the hon. Gentleman will withdraw his amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I am curious about the argument. Listening carefully, I think the Minister makes an interesting point. Sadly, it is also the case that some constituents will only go to an MP of one party. I have had such an experience. I inherited some work from my late predecessor, Michael Colvin, and people did not want to talk to me about it. By contrast, there would have been people who would not have gone to him for his political views either. It is a sad reflection that people think that we are politicised when we are in Parliament, but nevertheless, that is the way some constituents seem to prefer to behave.

Mike O'Brien (Labour, North Warwickshire)

The hon. Lady makes a valid point. It reinforces my argument that the amendment is not appropriate.

Stephen O'Brien (Conservative, Eddisbury)

I take the point about privacy seriously—it is an important point made by the Minister. Equally, I think that the point that the hon. Member for Romsey made, regarding the perception that once elected, we serve all our constituents, irrespective of whether people voted for our party—or if it turns out that they did not vote at all—is also important; we should recognise that there is the other side. I accept the Minister’s response, and I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 76, in schedule 5, page 58, line 31, at end insert—

‘(8A) In the case of section 34H(8)(b) applying, the Local Commissioner must submit his reasons, in writing, to the Secretary of State.’.

The amendment seeks some accountability for the ombudsman when he decides not to identify individuals. I just hope that the Minister is able to expand a little on the previous answer and give us some examples as to when he envisages that privacy should occur. To some degree, he has already answered it, so maybe there will only be a brief response.

Mike O'Brien (Labour, North Warwickshire)

The ombudsman would normally want to name the provider in a statement because it is in the public interest—there will be a public statement on the ombudsman’s conclusion on a complaint. The provision in the Bill is therefore worded to allow the statement to identify the provider wherever possible. But it also recognises that there may be human rights issues in doing so, such as when there are risks to the privacy of the individual provider. There are providers who may be close to an individual, and others may have a long-term relationship with the individual.

On the other hand, there are more likely to be circumstances where the ombudsman will want to ensure that an individual service user cannot be identified as a result of naming the provider in the statement. In a small care home with only 100 or so residents, the identification of the provider may allow others to work out who the individuals affected in the case are. Of course, the complainant may actively wish the provider to be named and not be concerned about being identified.

We do not envisage that the discretion available to the ombudsman will mean that he will decide in every case that it is appropriate for a provider or another person to be identified as a result. The point of the provision is that the ombudsman can decide on the basis of the merits of a particular case. We give him that discretion because it would be difficult to make provision for all the precise circumstances where identification is or is not appropriate. Leaving it to the ombudsman in those cases is the best way forward.

Stephen O'Brien (Conservative, Eddisbury)

I accept the Minister’s response, and I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 77, in schedule 5, page 59, line 46, leave out ‘month’ and insert ‘week’.

Robert Key (Conservative, Salisbury)

With this it will be convenient to discuss amendment 78, in schedule 5, page 61, line 12, leave out ‘month’s’ and insert ‘week’s’.

Stephen O'Brien (Conservative, Eddisbury)

The two amendments are probing in nature. They try to ascertain why the particular time frames have been chosen in the two cases concerned. In the schedule, the provider will be given a month to notify the ombudsman of the action it plans to take in response to his recommendations. Amendment 77 would reduce that to a week—a month can seem a rather long time in the tough circumstances, particularly of serious complaints. I hope it will give the Minister the opportunity to explain the thinking behind the time frames. It is also important to note that that is the time for a response, not time for action to be taken. I hope that the Minister will recognise that there may be a difference between the two.

Amendment 78 relates to the period of warning the Government get that the ombudsman is about to release previously unpublished Government information. As currently drafted, the ombudsman can publish after a month, or sooner with written consent; so the question arises as to why the Department needs a month’s notice. I would have thought that a week would be sufficient, particularly given the move to transparency. I hope that the Minister takes the amendments in the constructive spirit in which they are intended.

Mike O'Brien (Labour, North Warwickshire)

Three months is allowed for a local council under part 3 of the 1974 Act. I do not believe that that long is needed for a social care provider, which typically will have fewer processes to go through than a local authority. More importantly, processes of fairness require that the provider have adequate time but not too much time. It is about getting the balance right.

The provider should not be placed under undue time pressure to respond. He will often need to consult staff, check records and take other action that it would be impossible to do effectively within, say, a week. Normally the provider would need to decide what action to take to improve the service and remedy any inconvenience, suffering or financial injustice that a complainant has experienced. To ensure that the ombudsman’s recommendations are met, the provider cannot reasonably be expected to consider such matters in a week.

I appreciate that this is only a probing amendment. It is certainly not in the interests of the scheme as a whole if providers cannot respond properly to recommendations. I hope that explains why we have reduced the time from three months to one month, and why we felt that reducing it further would not be appropriate.

As for the period that the ombudsman must give a Government Department if he proposes to use Government information, this is in essence about disclosure of information. The relationship between a Government Department and the ombudsman is important. The ombudsman may wish to cite Government information in order to offer complete responses to complainants, and the provision is worded to enable that to happen.

I believe that a month is reasonable to allow the Department time to consult internally and to give adequate consideration to the implications of the information’s publication. A shorter period could have a detrimental impact on the quality of response. We want to ensure that the information that the Government are providing can be collated, examined and checked for accuracy. If the data are available in a non-collated form, they need to be collated, brought together, checked for accuracy, peer reviewed and examined. Trying to squeeze that into a month could be difficult.

Moreover, we also want to ensure that if information is provided, it is directly relevant. Checking the detailed local relevance may be important in some cases. I hope that we have got the balance right. It was with a view to doing so that the provisions were put in place.

Stephen O'Brien (Conservative, Eddisbury)

I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 79, in schedule 5, page 62, line 21, at end insert ‘or

(e) the Care Quality Commission’.

The Bill makes provision for the local government commissioner to consult with the Parliamentary Commissioner or Health Service Commissioner, or his equivalents in Wales and Scotland. Our amendment seeks to add the Care Quality Commission to the list. As it is the registration, inspection and regulatory body, surely such consultation should be enabled.

Mike O'Brien (Labour, North Warwickshire)

The relationship between the ombudsman and the CQC is important. The Bill allows the ombudsman to send copies of his statements to the CQC and also to send any information at any date if it appears relevant to the CQC’s functions. Findings by the ombudsman are often indicators of poor service and performance, which impacts on the suitability of a provider to be registered, and the CQC can then take action to deregister a provider.

The CQC will need to take account of concerns, complaints and allegations when determining whether services are being safely provided and are of appropriate quality. Such intelligence will feed into the risk assessments that the commission will make when determining the level of scrutiny that it should apply to a particular provider. The commission will also have the freedom to investigate a case if it has concerns that the health, safety or welfare of patients or service users is or may be at risk.

We look to the CQC and the ombudsman to agree arrangements between themselves as to how best complaints data can be fed from the ombudsman into the CQC’s registration assurance systems. Those operational details are, of course, best left to the organisations to work out. I believe that there is sufficient provision in the Bill to ensure the appropriate level of interaction and collaboration between the two bodies. They will have obligations put on them. Let us allow them to work out the best ways of putting detailed implementation in place.

Stephen O'Brien (Conservative, Eddisbury)

The Minister has answered the question. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 80, in schedule 5, page 63, line 23, leave out ‘obtain the consent of’ and insert ‘inform’.

Robert Key (Conservative, Salisbury)

With this it will be convenient to discuss amendment 81, in schedule 5, page 63, line 24, leave out ‘or’ and insert ‘and’.

Stephen O'Brien (Conservative, Eddisbury)

These are probing amendments. Amendment 80 removes the need to obtain consent. Why has the ombudsman not been given the discretion to decide that himself and what would be the factors involved in making and denying consent?

Amendment 81 questions why there is an “or” in this schedule. It seems that if you cannot get something from mum, then you should try and get it from dad. The views of both parties should be sought and if they do not agree then they should wait. If there is one thing that my wife and I made a clear, early decision about when we had children, it was that we should always back each other, even if we do not agree, so that the children cannot divide and rule. To a large degree it has stood us in good stead, so the same principle should apply here.

Mike O'Brien (Labour, North Warwickshire)

What applies as a parent may not always apply as a Minister. [Interruption.] Yes, perhaps it should. It is important that the complainant is asked for their consent before a joint investigation takes place. There may be reasons that are not obvious to the ombudsman for the complainant not wanting the investigation to be joint; there are also considerations of data protection and human rights. To remove the requirement for consent would be inconsistent with the joint investigation provisions recently introduced in legislation covering the parliamentary and health service commissioners. As we already have it in one area, why should we change it? We should remember that the ombudsman is acting for the complainant. In effect, it is the complainant’s right to ascertain their own wishes. They should have some control over the process. If the complainant objects to a joint investigation, it would be illogical to override that. The right of consent is critical for service users. We are seeking to make complainants and people affected by complaints feel more empowered and central to the resolution of these complaints. I suspect that the hon. Gentleman does not want to take some of that power away from individuals and give it to the ombudsman, and nor do I. On that basis, I hope the hon. Gentleman is able to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful for the Minister’s answer. They were probing amendments and this has been a useful exchange. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 82, in schedule 5, page 64, line 42, at end insert

‘and the content of the complaints it has processed since the last review was made under this subsection.’.

Robert Key (Conservative, Salisbury)

With this it will be convenient to discuss amendment 139, in schedule 5, page 65, line 18, at end insert—

‘(2A) The Local Commissioner may, in the Part 3A annual report, assess the costs of the complaints process borne by—

(a) the taxpayer; and

(b) the provider; and

(c) the service user.’.

Stephen O'Brien (Conservative, Eddisbury)

The amendment seeks to include in the ombudsman’s review of its own activities a review of the nature and content of complaints it has dealt with. Taking oral evidence during the passage of the Health and Social Care Bill last year, Anna Walker of the Health Commission pointed out the value of the regulator inspector also having access to complaints data. The amendment would give the public and policy makers an overview of the complaints being made, so that similarities can be charted and solutions explored.

Amendment 139 addresses the contents of the ombudsman’s annual report. It is worth having it on the record that the Government expect, according to the regulatory impact assessment, each of the 800 to 1,000 complaints a year to cost the taxpayer £1,500, through the ombudsman, and the provider £800. The RIA elaborates in paragraph 21 that

“there is a possibility that providers will, depending on the state of the care market, be able to pass on their additional costs to commissioners—probably mainly to people funding their own care.”

The amendment would seek to establish the breakdown of these costs every year, in part to control rises in fees. I ask if the Minister is happy that this measure would push up care home fees, which is the fear. Could the Minister also confirm whether the local government ombudsman has been voted the additional resources he needs—about £1.5 million in the Department’s estimate? There was a real concern during the passage of the Health and Social Care Bill that the Government declined at every point to discuss the extra resource that the parliamentary and health service ombudsmen would need to deliver the legislative requirements. We have since discussed that and found from information provided by the ombudsmen that that has now been put in place; that has been helpful.

Mike O'Brien (Labour, North Warwickshire)

I am happy to write to the hon. Gentleman on those points.

Stephen O'Brien (Conservative, Eddisbury)

I will be happy to receive the letter. I beg to ask leave to withdraw the amendment.

Clause 34

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 152, in clause 34, page 32, line 38, leave out ‘may’ and insert ‘must’.

Robert Key (Conservative, Salisbury)

With this it will be convenient to discuss clause stand part.

Stephen O'Brien (Conservative, Eddisbury)

It is good to be back under your chairmanship, Mr. Key. With amendment 152 and clause 34, we are dealing with the private patient income cap. Under the amendment, the Secretary of State must, rather than may, by regulations make provision. I shall happily withdraw it if the Minister withdraws his intent—signalled by the unselectable amendment 199—to remove the clause altogether, or if he promises to introduce an equivalent replacement on Report.

Let me be clear from the outset: the issue is not fundamentally about private health care or private patients; it is about better functioning of foundation trusts, better care for NHS patients and better value for UK taxpayers. The private patient income cap is iniquitous, limiting foundation trusts arbitrarily to the proportion of private to public income that they received in the base year—2002-03, the year before the first foundation trusts were authorised. For some, that means 30 per cent.; for others, it is 5 per cent. For all mental health trusts, it is 0 per cent. The cap also prevents specialist hospitals such as Great Ormond Street—I would be very surprised if any hon. Member had the guts to say that they thought that hospital should not be allowed to expand and to continue its services—from becoming a foundation trust.

The issue is very relevant to the Committee. Many members of the Committee have foundation trusts in their constituency. In fairness, the hon. Member for Stourbridge made a declaration near the beginning of our proceedings because she has in her area the Dudley Group of Hospitals NHS Foundation Trust, and I think she mentioned that her husband is a governor of that trust, so she has an interest in the issue, as does the hon. Member for Bristol, North-West in respect of the University Hospitals Bristol NHS Foundation Trust, and the Government Whip in respect of the South West Yorkshire Partnership NHS Foundation Trust, which she visited last September. I shall remind her when she comes back into the room. The hon. Member for Romsey has in her area the Salisbury NHS Foundation Trust, to which her constituents are often sent and which just happens to be in your constituency, Mr. Key.

Patrick Hall (Labour, Bedford)

Is the hon. Gentleman saying that if a Member of Parliament has in their area a foundation trust or an NHS trust seeking foundation status, that represents a pecuniary interest that should be declared?

Stephen O'Brien (Conservative, Eddisbury)

I certainly am not saying that. When I say “interest”, I mean an interest on behalf of constituents—a political, representational interest—because foundation trusts are now widespread across the country, as is well known. I wanted to make it clear that this is not a theoretical issue. The private patient cap will make a real difference to the ability of foundation trusts to progress and to ensure that they deliver better care for patients. I also wanted to underscore this point. It is so easy, because it is called a “private patient” cap, to think that the issue is about private patients versus the NHS. On the contrary, it is not about private health care; it is about the better functioning of foundation trusts, better care for NHS patients and, above all, better value for UK taxpayers.

The Government Whip has come back into the Room. I was just covering those hon. Members who have foundation trusts in their constituency. The Government Whip, who is the hon. Member for Wakefield, has in her area the South West Yorkshire Partnership NHS Foundation Trust, which I know she visited last September. That, along with the others and, indeed, the Calderdale and Huddersfield NHS Foundation Trust, would potentially be adversely affected if the signal victory secured in the upper House was not maintained.

As I said, the cap is iniquitous, and I gave the example of Great Ormond Street, which will be injuriously denied the chance to grow and sustain itself if the clause that the upper House has handed to us is not maintained. The private patient income cap is ultimately political, rather than practical. On Report, Lord Warner, who was genuinely a Labour Minister and not just a GOAT—a member of the Government of all the talents—said that the cap was “a bit anachronistic” and that it was

“sops to parts of the Labour Party”.

He explicitly repented his “sins” over the issue.

More importantly, the cap’s stated purposes are achieved in other ways, including through Monitor, the terms of authorisation, the mandatory services schedule, contract variations with PCTs, boards of governors on significant decisions, the asset disposal locks and consultation.

Finally, and most importantly, the cap is detrimental to the NHS and patient care. On Report, Lord Warner said that

“it is potentially a source of income for trusts that they can use for the benefit of NHS patients”—[Official Report, House of Lords, 6 May 2009; Vol. 710, c. 656.]

On Third Reading, he said:

“We are moving into a financial climate where the NHS...will need every penny that it can get to meet public expectations”—[Official Report, House of Lords, 12 May 2009; Vol. 710, c. 936.]

As such, the cap also impacts adversely on UK plc, hampering our provision of health care to non-UK residents and our research base, which depends on funding.

As Baroness Thornton said, the Government have accepted

“that the issue needs attention”—[Official Report, House of Lords, 6 May 2009; Vol. 710, c. 659.]

On 12 May, at column 939, she also accepted that it needed “wider debate”. As Baroness Meacher said in the upper House, this is

“the direction that the Government want to go”—[Official Report, House of Lords, 12 May 2009; Vol. 710, c. 940.]

and the proposal would merely be an interim measure while they hold their review.

I am happy to let matters rest on that argument. I have more that I can develop, but it would probably be helpful to hear what the Minister has to say on this incredibly important clause. I fear that unselected amendment 199 signals that we are about to have the kind of debate that I had hoped the Government would not force on us. As I hope that I have made clear, the words “private patient” in the cap’s title seem to have excited people and given the wrong impression about the substance of the argument. The essence of what the upper House has handed down to us—even if it is regarded as an interim measure—is better for patients and better for the NHS, and it is not about supporting private health care over public, accessible health care in the NHS. I hope that members of the Committee will think about the issue in an independent way, rather than feel that they have to be led down a political route.

Sandra Gidley (Liberal Democrat, Romsey)

I support the hon. Member for Eddisbury. In my area, I have another foundation trust, the Hampshire Partnership NHS Foundation Trust, which covers a range of constituencies in southern Hampshire. It is a mental health trust and it has the kinds of problems that he alluded to. I met representatives of the trust on Monday, and they are keen to develop other services. They were keen to impress on me the fact that, as the legislation stands, they are quite shackled and unable to move forward with some of their ideas.

Mike Penning (Conservative, Hemel Hempstead)

I also support my hon. Friend the Member for Eddisbury. I praise the comments by the hon. Member for Romsey, on the Liberal Democrat Front Bench, because mental health is a massive issue in this regard.

I was not aware of how much of an issue this was until I came on to the Front Bench and visited hospitals around the country. I was very moved when I visited Great Ormond Street hospital—no one could remain unmoved. If any members of the Committee have not been there, will they please go, not just because of the lovely little babies, but because the work that goes on there is fascinating. When the chair and the chief executive sat in front of me and said, “We could do much more, but we are held back by the fact that we cannot have a foundation trust because of the cap,” I thought, “Perhaps that is just Great Ormond Street.” Then, however, I went to the Royal Marsden, one of the great cancer hospitals in this country, and they said exactly the same—that they could do more, especially in the area of research.

What worries me, as I said a moment ago, is that this is not about private patients. This is about money coming into an NHS facility. I would like to put this on the record. They say on a regular basis that that research, which is often privately funded, benefits our constituents. That is being held back because of the arbitrary cap. I understand, as the then Minister, Lord Warner, indicated, that the cap was put there so that the original legislation could get through. We do not need it now, however. We know that foundation trusts work. There are great hospitals like Great Ormond Street that would like to and need to become foundation trusts. There are others that need to move forward in the area of cancer research and other research. We have heard this morning about the limitations in treatment of cancer. Surely everybody that is represented on this Committee and in this House wants the very best for the constituents. That is being held back because of this arbitrary cap.

I hope that what the other place put into this Bill stays, so that these excellent facilities within the NHS can go forward and help our constituents.

Mike O'Brien (Labour, North Warwickshire)

I agree with the hon. Member for Eddisbury in some respects and disagree with him in others. This is about the place of private health care in the NHS. It is not iniquitous to limit trusts and the amount of private funding they are able to access. The question is how that limit should be put in place and where it should be.

There are significant disagreements, therefore, between the Conservative Front Bench and this Front Bench on this issue. However, that being said, we accept that there is an issue here, and it is right that we should address it. This clause is not some kind of interim or quick-fix solution to the problem. An exemption-based system would not remove the cap’s underlying rule that an NHS foundation trust in private income should be restricted to levels set in 2002-03. Any regulations created using clause 34 would only provide for a simple exemption from the cap. That could not be used to such an extent that the underpinning primary legislation is nullified.

In short, it is the underlying rule itself that we need to look at. Clause 34 does not allow that to happen. Instead, allowing exemptions is likely to introduce a level of uncertainty for the NHS and increase claims of unfairness, as one hospital says, “I’ve got to change, so why doesn’t another hospital?” There will be lots of debates if such exemptions are allowed. It will create a degree of uncertainty in NHS financing. It will not resolve the problems identified by the hon. Member for Hemel Hempstead; it will potentially exacerbate some of those issues because there will be a level of uncertainty about what the rules are and how they should be applied. We need to avoid that.

I do not dispute, however, that the current situation is far from ideal. Rather than trying to create a uniform system of rules for all NHS foundation trusts, clause 34 would maintain a system based on historical activity that appears increasingly arbitrary. Any new system must therefore deliver two things. First, it must remain true to the intention behind the current cap. That is that all NHS providers must not be distracted from their core business providing health care to NHS patients. That is non-negotiable.

Secondly, any new system must be workable. The second point can only be addressed by developing a new system in partnership with those that will implement it in the NHS.

Reforming the rules so that they are clear and work well will not be straightforward. It is clear that opinion as to how the cap should be reformed is divided. There are very strong differences of opinion among those who work in the NHS. A lasting and fairer system for NHS foundation trusts can be achieved only by having a broader and public debate. That is why the Government have a clear commitment to conducting a comprehensive review of the cap, following the outcome of the current judicial review.

The review will enable the Government to develop fully the most appropriate policy solution before we legislate—which we will do at the first opportunity, once a clear approach has been determined—and will involve all those who are affected and who have a direct interest in the policy, namely, NHS foundation trusts, aspirant foundation trusts, the staff, the patients and other stakeholder organisations.

We will consult fully on the proposals and hope to be able to move from looking at that review to implementation. We do not disagree that a change is needed; this is the best way to achieve it. We do not think that it can be done here, certainly by this clause. The clause that we inherited from the other place cannot do it and needs to be removed. The issue needs to be examined thoroughly and fully; that is the appropriate way forward.

Stephen O'Brien (Conservative, Eddisbury)

Let me take the Minister back to the point of picking up on the question of a broader and public debate; that is what he felt needs to happen now. I am thinking very much on Baroness Thornton’s words in the other place, when she said,

“I made clear the Government’s desire for a wider debate on the cap”—[Official Report, House of Lords, 6 May 2009; Vol. 710, c. 658.]

She did not say, as the Minister has, that that needs to take place after the current judicial review. Is the Minister indicating, by what he just said about that judicial review, that whatever emerges from it, the Government would not wish to take any implementing action or, indeed, respond to any injunctive relief, to the extent that they could resist that, rather than simply entering into a broader and public debate as a way of postponing the issue, which is clearly urgent? As he has already identified, there is a need to address this serious issue.

Mike O'Brien (Labour, North Warwickshire)

The difficulty in trying to address this issue before the judicial review is completed is that anything a Minister says, including this one in this Committee, can be prayed in aid in relation to the judicial review. If we tried to carry out a broad-based consultation while a judicial review was in progress, discussion of the issues would play into an interpretation of the clause that is the subject of current judicial examination.

We need to get that completed—completion is due in the autumn—and we want to then look at its outcome, which may well give us some views from the courts about how this should be looked at and, after a full and thorough examination, which issues are in need of addressing from the courts’ point of view. We will then be in a position to be able to set out our strategy for a proper discussion and review.

We do not dispute that there is an issue that needs to be appropriately determined, but we are certainly not convinced that the approach being taken here by the Opposition is the right one, and we do not accept the amendment agreed in the other place as the better way forward. We need to look at this issue in the round. We need to examine it properly. We need to take a view on how the NHS should proceed with regard to private income, and we need to do so with the freedom to have a full and proper discussion about it, after the judicial review concludes.

Stephen O'Brien (Conservative, Eddisbury)

In effect, in the position that he has taken, the Minister has accepted that a problem needs to be addressed, but he does not like the way that it is currently addressed in what the upper House has handed down to us, nor in any other measure at this stage. His position is, rather: let us go back to the existing unsatisfactory position where the amount of the cap is, in effect, arbitrarily set in stone from the amount of private patient income that happened to exist in 2002-03. That has an absolutely venal effect on the mental health partnership trusts, which are causing such a nightmare: the hon. Member for Romsey made that point.

It is interesting that to some degree, the Minister in the upper House also sought to pray that point in aid, as part of the way the Government were seeking to see the point off when the issue was debated there. Of course, the Government were defeated in the upper House when the issue was pressed. It was Baroness Meacher who said:

“I have been given assurances that there are people in the Government who do not have a problem with”

what was being proposed—we know who that was—which was eventually supported. She continued to say:

“When the Government are able to institute a review, we would all hope to be involved in it, contribute to it and support it. Then, if possible, a consensus can be found through a good consultation process...However, that is all for the future. There is no upcoming health Bill”—

we now have one, which has made it possible to insert this clause—

“and the issues are too important to leave for an unspecified opportunity in the future. NHS foundation trusts up and down the country are struggling with this. In my view, having the principle in the Bill will affect how people operate. We have boards of governors”—

the hon. Member for Stourbridge has made it clear that she understands this point—

“and members councils out there that will be watching this and will know that the principle is in the Bill—if we can get it in the Bill. Personally, as somebody who passionately believes in the NHS and NHS patients, I want—and we want—that principle in the Bill. Therefore, I wish to test the opinion of the House.”—[Official Report, House of Lords, 12 May 2009; Vol. 710, c.940-41.]

Sadly, we have not really moved any further. I think it is appropriate, in light of these discussions, to test the opinion of the House. I therefore wish to press the point, recognising that we are also having the clause stand part debate. We have, in the amendment, the opportunity both to be specific and to test the principle. If we are honest to ourselves, if the upper House means anything, it is because it is capable of reviewing and improving legislative proposals that come before us. In this area, it has done a good job and deserves our support. I therefore urge all members of the Committee to back the amendment.

Clause 35

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 84, in clause 35, page 33, line 21, at end insert—

‘(3A) Her Majesty’s Revenue and Customs must publish a list of disclosures of information under subsection (2) to the persons listed in subsection (3), paragraph (e) which must specify—

(a) the person or persons to whom the information was disclosed; and

(b) the reason for the disclosure.’.

Robert Key (Conservative, Salisbury)

With this it will be convenient to discuss the following: Amendment 85, in clause 35, page 33, line 22, leave out ‘a’ and insert ‘an anonymised’.

Amendment 161, in clause 35, page 33, line 23, after ‘enable’ insert ‘any’.

Amendment 86, in clause 35, page 33, line 24, after ‘person’, insert ‘or practice’.

Stephen O'Brien (Conservative, Eddisbury)

As they say, Mr Key, see you on Report.

Clause 35 moves on to a different subject: the disclosure of information by Her Majesty’s Revenue and Customs. I will deal with three amendments and my hon. Friend the Member for Hemel Hempstead will deal with amendment 161.

Amendment 84 seeks to ensure that there is an appropriate level of accountability and public scrutiny included in the information-sharing practices of Her Majesty’s Revenue and Customs and the Department of Health, by mandating HMRC to publish details of the recipients of the information it discloses to the Department of Health and the reasons behind those disclosures. The amendment would help ensure that the Government do not share information for reasons other than those expressed in the explanatory notes and debates on the subject to date.

Amendments 85, 161 and 86 all seek to ensure that the provisions of this clause cannot be exploited to share information for any reason other than the intended purposes. During Second Reading, the Secretary of State deftly tiptoed around the fact that for the last four years, his Department has been complicit in an information-sharing practice which is illegal. The Secretary of State could not quite bring himself to use the word “illegal” during our last debates. Rather elegantly, he referred to it as giving the practice a “firmer legal footing”. As the Minister and I both know—as will anyone else who has been trained in the law—that is the ultimate legal and lawyer’s phrase for saying “I need to make sure this is legal because it has not been like that to date.”

I can understand the reasons behind requiring access to the information. I was much consoled by Baroness Thornton’s admission in the other place that she and her colleagues had consulted the British Medical Association and the British Dental Association about the arrangements in the Bill. However, I seek an assurance from the Minister that this process will, from now on, take place in the full light of day—something that my amendment intends to enshrine in primary legislation. Amendment 84 does not allow for information on pay to enter the public domain, but it does enable the process of sharing this information to be scrutinised widely. There is need for transparency in every aspect of government. If the Government are honest and up-front with the public about information-sharing practices, there is less scope for abuse or misuse of information. Therefore, I need to ask the Minister what measures have been put in place to ensure that the information that he obtains from HMRC is not abused, but used appropriately. How is he ensuring that the Government are accountable for the way in which they use the information?

Through amendment 85, I wish to probe the process by which the disclosed information will be anonymised and to query why the word “anonymised” has not been included on the face of the Bill. The explanatory notes state:

“The information disclosed will be a summary of anonymised information relating to the earnings and expenses of these practitioners.”

The explanatory notes contain both the notion of aggregation and the notion of anonymity as distinct processes, whereas the Bill appears to blur these two concepts into one.

Let us examine the exact phrasing of the paragraph in question. The Bill states:

“Information may be disclosed under this section only in the form of a summary or collection of information so framed as not to enable information relating to a particular person to be ascertained form it.”

The Bill directly links the inability to obtain information relating to a particular person to the aggregation of information in the form of a summary, but that does not necessarily include anonymisation. It is true that the Government may well be able to achieve a certain amount of anonymity through presenting data in an aggregated form, but we need to be clear about what “anonymised” actually means. The Oxford English dictionary defines it as the quality of being

“made anonymous, especially by the removal of names or identifying particulars”.

It is clear that the word is more precise than the anonymity derived from aggregated data. It involves the removal of specific identifiers such as names, addresses or gender, where relevant, so that even if the information is broken down to the level of a practice or group of practitioners, the anonymity of specific persons is fully protected. By way of example, I cite the comments of Baroness Cumberlege in the other place. She asserted that with aggregated information on a particular area of the country, the clause could apply to

“the disclosure of identifiable information relating to a specific GP practice with more than one partner. You would not be able to ascertain the income of one individual, but you would be able to ascertain the income and expenses of the partnership.”—[Official Report, House of Lords, 17 March 2009; Vol. 709, c. GC36.]

By placing the word “anonymised” in the Bill, I hope to cement the Government’s commitment to sharing information only where anonymity has been rigorously guarded, even when it is presented in an aggregate form.

It is important that we distinguish between aggregate and anonymised and do not rely on one to deliver the other if aggregate information would allow quite a close analysis of the salaries of a particular practice, for example. As I have already stated, this is a probing amendment, so perhaps the Minister can shed some light on the process by which information is aggregated, so that the Committee can be reassured on that matter.

I shall skip over amendment 161 and leave it to my hon. Friend the Member for Hemel Hempstead. While I am on my feet I shall address amendment 86, which picks up on some of the comments made by the Government in the other place. Baroness Thornton took issue with a query from the Conservative spokesperson, Baroness Cumberlege, regarding the ability of the Government to use the clause as a mechanism to obtain information on a particular practice. If that is possible under the proposed legislation, it would be relatively easy to match up pay details with specific practitioners.

Baroness Thornton gave an assurance in the other place that details of practitioners’ pay would not be disclosed by Her Majesty’s Revenue and Customs in an aggregate form unless it related to 30 or more doctors or dentists. She said that the number would be revised if it was thought that a practice might exceed that number of practitioners. The Minister may wish to reiterate that, and I hope that he will.

That guiding principle may be the current HMRC policy, but what is to stop the Government probing below the guideline of 30 practitioners? What regulations are in place to prevent such an occurrence? I shall be grateful if the Minister will point me towards the relevant legislation.

Mike Penning (Conservative, Hemel Hempstead)

I want to speak specifically to amendment 161, with regard to dentists and dentistry. I am sure that the Minister is aware that if one is a commissioned dentist rather than a salaried dentist, one’s practice operates completely differently from the way that other NHS practices work, particularly GP surgeries.

The amendment ensures that no information about a particular person could be ascertained from the disclosure of information. That is important, given that the information about individuals under these circumstances would be somewhat sensitive. To tease the Minister slightly, the HMRC does not have a good track record when it comes to losing data. I am not making a silly point: that concern exists and people are frightened by the fact that the details of about half the population were released, accidentally we assume, by HMRC.

I hope that the Minister will respond. This is a probing amendment and I do not intend to press it. However, there is a special case for dentists in that their role within the NHS is different. They are very much the entrepreneurs in their field. Under the present system, they are paid by areas of dental activity. They buy or rent their surgery and they have all their bills upfront. It is completely different from the way in which the NHS operates in other areas. With that in mind, I am concerned that, in a time of openness, private information, which would be very personal to the individuals involved, could be released under this clause. Will the Minister address those concerns—specifically on dentistry?

Mike O'Brien (Labour, North Warwickshire)

I appreciate the intention behind these amendments and I share the commitment to safeguarding taxpayer confidentiality to the greatest extent possible. Confidentiality is a defining principle of the clause and the measures in place are there precisely to ensure that information shared by HMRC cannot be associated with any particular person, whether a dentist or not.

It may be helpful if I clarify what the clause, as currently drafted, permits. It goes further than simply anonymising the information that HMRC may disclose. As the hon. Member for Eddisbury pointed out, HMRC must also summarise the anonymised data and may disclose anonymised information only in such a summarised form. As the identification of a particular practice would risk identifying a particular individual, which is already prohibited under the clause, such data could not be disclosed. HMRC does not release aggregated, anonymised statistics based on fewer than 30 cases. That figure would be increased if the resulting statistics were thought to be potentially disclosive.

The hon. Member for Eddisbury asked what “anonymised” means. The safeguards mean that there is no possibility whatsoever of any details or information being linked to any individual or practice, whether dentistry or not.

Amendment 84 seeks to make HMRC, whenever it discloses any information to any person providing services to or exercising functions on behalf of UK Health Ministers, publicise such disclosures, along with reasons for the disclosure. It is right and proper that we are transparent about the disclosure of information relating to the earnings and expenses of GPs and dentists. It is currently only the NHS information centre for health and social care that receives this anonymised and summarised information from HMRC. If that changed in the future, the information would still need to be passed to some appropriate body that was doing such statistical work. In addition, the information could only ever be disclosed for one reason, as set out in subsection (2), so there is no need to specify that in each case. The purpose of the disclosures is clearly understood by the bodies that represent dentists and GPs, as both they and the UK Health Ministers use the data to ensure that the pay of practitioners remains at an appropriate level.

It is also worth noting that the tax self-assessment forms, which HMRC provides to dental practitioners and GPs, clearly state that the information that they submit to HMRC is subject to being used for the purposes of the earnings and expenses inquiries. When the earnings and expenses reports on GP and dentist earnings are eventually published by the NHS information centre, they clearly state that the source of the data is HMRC and that only aggregate non-disclosive information is supplied to the NHS information centre. In a sense, there is a cordon sanitaire between those who supply the information and those who receive and use it. I do not believe, therefore, that such publication would provide sufficiently beneficial information on the activities of HMRC to justify the amendments proposed. I hope that, with those reassurances, the hon. Gentleman will be able to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I have listened carefully to the Minister. He has been categorical in his assurances; he clearly regards taxpayer confidentiality as paramount to the extent possible. He also used the phrase “no possibility whatsoever” in relation to inappropriate information getting out.

There is no purpose in pressing the amendment to a Division, but it is important to recognise the issue, in terms of any potential problem that could arise in the future. We all recognise that any manipulation of and transactions with information always carry some risk. There have been plenty of examples in which there has been disclosure, on memory sticks and other things, which can easily get out, or on a laptop rather foolishly left in the boot of a car and the car gets stolen. Those things can cause problems, although it never ceases to amaze me how people get through the password. There is always that terrible risk. Once information is used or created for any purpose and taken out of the cordon that surrounds HMRC, there is a risk.

The Minister used the phrase “no possibility whatsoever”. That will provide genuine reassurance but, most importantly, it will be referred to by anyone who feels that their information has got out. That commitment on the part of the Government was a significant statement. On that basis, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 195, in clause 35, page 33, line 24, at end insert—

‘(4A) A person who discloses information in subsection (1) to persons other than those listed at section (3) or for purposes other than in subsection (2), commits an offence.

(4B) An offence under subsection (4A) may in particular extend to—

(a) Her Majesty’s Revenue and Customs;

(b) any person listed under subsection (2);

(c) any employee of any person listed under subsection (2).

(4C) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 4 on the standard scale.

(4D) A person or persons to whom the information is disclosed in circumstances under subsection (4A) has a cause of action for damages, including penalty damages, against the discloser.’.

The amendment would ensure that a breach of the terms set out in the Bill by anyone involved in the information-sharing process is regarded as a criminal offence. It builds on the matter that we have just discussed. Any person who shares the information specified under the clause with people other than those listed should be held to account for their actions. Given that the Government have managed to share information—we have to use the word “illegally”—for four years without facing the legal ramifications of doing so, but now wish to put the matter right, it is logical to want the Minister to reinforce that assurance by saying that any breaches of the new legislation will result in appropriate legal action. In other words, it would show that what is being put in place by the Committee is earnest and genuine.

If employees or other persons in HMRC with information-sharing privileges feel at liberty to share information in an unprescribed fashion, knowing that they will not face consequences for their action, information on doctors on dentists could easily be abused and exploited. I therefore ask the right hon. and learned Gentleman to let us know what precautions are being taken to ensure that those who breach the terms of the clause are held to account. Our amendment gives him the opportunity to ensure that such a provision is both real and serious.

Mike O'Brien (Labour, North Warwickshire)

It is worth noting that section 19 of the Commissioners for Revenue and Customs Act 2005 already provides the sanctions that might be applied for the wrong disclosure of information by HMRC, including imprisonment or a fine. The clause applies to the disclosure of information relating to persons whose identity is specified or can be deduced from the disclosure.

However, the amendment goes much further. As I have said, the information that HMRC transferred to the NHS information centre comprises aggregated and anonymised analyses. Importantly, the whole point of transferring the information is so that it can be disseminated as set out under clause 35(2)—the purpose of the provision. The most important safeguards are those restricting the type of data that may be disclosed, which I have outlined, not to whom it may be subsequently disseminated.

When the NHS information centre published the data in its anonymised, summarised form in the earnings and expenses report, it inevitably made it more widely available than to those persons listed under clause 35(3). The amendment would throw into question the whole dissemination of the information provided by the NHS information centre, which is the basis of the negotiations on which salaries are conducted between dentists, GPs and the Government. It would thwart the whole point of the clause and prevent the earnings and expenses report from being made available. Not only would the amendment do something that I am sure was not intended by the hon. Gentleman, but it would go too far. We already have safeguards and protections that prevent non-anonymised data from being disclosed, which include imprisonment or fine, so the amendment would not be necessary even if it focused merely on the mischief with which the hon. Gentleman wishes to deal.

Stephen O'Brien (Conservative, Eddisbury)

The Minister is right to observe that the amendment would go beyond what is already in place, but he was extremely helpful to draw attention to section 19 of the 2005 Act. As I clearly do not have a copy of the Act on my person, I am grateful to him for that. The provision contains the sanction that is required. The amendment is indeed widely drafted, and I accept that it would go too far. Breaches should have serious consequences and ultimate sanctions should lie behind the provision to make sure that it keeps people’s feet to the fire and that they are honest and practice well rather than sharply or badly. On that basis, I beg to ask leave to withdraw the amendment.

Schedule 6

Stephen O'Brien (Conservative, Eddisbury)

There is little to say other than that this schedule lists repeals and revocations to eight Acts in addition to the countless Acts amended through the Bill. Of those eight, six were passed by the current Government. We are spending a lot of time correcting previous Acts; I hope that we will have the opportunity to get them right once and for all, so that we do not have to keep coming back to them. I would like to place that point on the record.

Clause 40

Stephen O'Brien (Conservative, Eddisbury)

Why was the Bill introduced in the upper House, thus necessitating this amendment? My understanding is that particularly controversial or detailed Bills may start in the upper House when it is necessary to bring specialist knowledge to amend their detail. This Bill is neither controversial—we have had some points of controversy, but in broad terms it is not regarded as controversial—nor does it contain detail requiring expert knowledge. It seems strange that the Bill was introduced in the upper House, thus we find ourselves faced with this Government amendment. I look forward to the explanation.

Mike O'Brien (Labour, North Warwickshire)

The explanation is simple—the objective of this Bill is to implement the review set out by my noble Friend Lord Darzi. He was able to lead the introduction of the Bill, which was a helpful way of ensuring the smooth passage of, as the Opposition have indicated, a broadly uncontroversial Bill. In the other place my noble Friend was in a position to set out the case in broad terms for the implementation of a review that he championed.

Mike Penning (Conservative, Hemel Hempstead)

Could the Minister clarify where the ban on the display of tobacco appears in Lord Darzi’s review?

Mike O'Brien (Labour, North Warwickshire)

There are some other issues that have also been included in the Bill, but most of my noble Friend’s key provisions and recommendations are included in the Bill and were led by him in the upper House. I reassure the hon. Gentleman that my noble Friend supports the provisions concerning tobacco.

New Clause 1

Mike Penning (Conservative, Hemel Hempstead)

I beg to move, That the clause be read a Second time.

New clause 1 seeks to bring the law protecting young people from tobacco into line with the law protecting young people from alcohol. The Government, supported by myself and the Opposition, have amended legislation to make it illegal for people under the age of 18 to purchase tobacco products. That was a sensible thing to do and will help to discourage young people from smoking. I am sure the Minister will say that that was in the thoughts of the Government when they introduced the relevant provisions in the Bill.

The problem is that, unlike the proxy purchase of alcohol—it is a criminal offence to buy alcohol knowingly to pass it on to a minor, or an individual under the age of 18, as the legislation states—it is not a criminal offence at all to purchase tobacco knowingly and willingly to pass it on to a person under the age of 18. I assumed that this was just a slip of thought, or a missed opportunity, when the Government introduced the legislation, so I looked for such a provision when the Bill was introduced in the other place, but it was not there. I decided, therefore, that it would be sensible to table an amendment with my hon. Friend the Member for Eddisbury, to change the law in order to protect young children.

The Committee has heard me speak about evidence several times during the past few weeks. The evidence is there: “Smoking, Drinking and Drug Use among Young People 2006” showed that 89 per cent. of young people either being bought tobacco products or being given tobacco products by an older person. Interestingly, that was before the legislative changes, so it related to young people aged 16 or younger being given tobacco products by adults.

On the assumption that if 89 per cent. of young people are having tobacco products purchased on their behalf, or sold to them by someone, the tobacco products are not necessarily all coming through tobacconists, I would have liked to discuss the whole issue of black-market products, counterfeit products and “cheap whites”—products imported into this country and sold very cheaply, mainly from the eastern bloc. Those amendments and new clauses were not selected, but perhaps we will be able to come back to that area.

New clause 1 is a very simple new clause. It will bring our legislation up to date. It will make it a criminal offence for a person who owns a shop to knowingly sell tobacco to a minor, and it will make it a criminal offence to proxy purchase, which is the key to the new clause. That would make it much easier for the authorities to pick up on those who are preying on young people—either people selling from an ice-cream van, which used to happen when I was a young fellow outside the school, or people selling black-market products or any other tobacco products, whether legal or illegal. To knowingly do that would be a criminal offence, and that would make it a recordable crime so that we could stamp down on this. I hope the Government and the Minister will support new clause 1.

Sandra Gidley (Liberal Democrat, Romsey)

I very much support the sentiments behind this new clause, because it seems odd to me as well that the proxy purchase of alcohol is a criminal offence, whereas the proxy purchase of tobacco does not seem to be one. I have not had a chance to check whether the hon. Gentleman has copied exactly the legislation that covers alcohol, but I have a slight concern that this new clause may not be tight enough. Subsection (2B) of the new clause states that a defence is that,

“he had taken all reasonable steps to establish the individual’s age, or that from the individual’s appearance nobody could have reasonably suspected that the individual was aged under 18”.

I do not know about the hon. Gentleman—he may be better at these things than I am—but I find it incredibly difficult to work out people’s ages, particularly when young girls glam themselves up. So a defence on appearance seems to be quite an easy get-out.

Mike Penning (Conservative, Hemel Hempstead)

Of course I am more than happy for amendments to be made by the Government, if they were willing to accept this new clause on Report and tidy it up, but it is framed around the alcohol legislation. To touch on the point that the hon. Lady has raised: if someone is fraudulently going out of their way as an under-18-year-old with fake ID, or whatever, to actually break the law—whether to purchase alcohol or cigarettes—it is very difficult for the individual who is running the business to know that that is a piece of fake ID. Siblings often exchange ID.

The new clause was designed not only with people who run legitimate businesses in mind, but also to make sure that anybody—whether they run a legitimate business or are in a black-market situation—realises that not only are they breaking the law to do with duty and the sale of tobacco products, but they are committing a criminal offence if they sell to a minor.

Sandra Gidley (Liberal Democrat, Romsey)

I had almost concluded my comments. To sum up, we have great sympathy for the spirit of these amendments. We have to take action on this if we are serious about tackling the problem of under-age smokers because most under-age smokers receive their cigarettes from black-market, under-the-counter sources. I have some concerns, however, that in some ways the amendments do not go far enough.

Gillian Merron (Labour, Lincoln)

As we have heard, the new clause would create an offence for a proxy purchase of tobacco. I welcome the sentiments that have been expressed by the hon. Gentleman and the hon. Lady. I share these sentiments and welcome the concern. The hon. Member for Romsey asked whether the amendment was the same as the provision in the Bill in respect of alcohol. I can confirm that it is not and I refer the hon. Lady to the Licensing Act 2003, section 149, which provides clarification as to what the purchase of alcohol by or on behalf of children would do, as opposed to the amendment before us. This might be helpful to the Committee.

It is already illegal to sell tobacco to young people under the age of 18. Last year 200,000 children smoked regularly in England and we have to ask ourselves where they are getting their cigarettes from. I welcome the support of the hon. Member for Hemel Hempstead for the change in the law that we have already seen. We have the largest survey of the smoking habits of children from 2006, before the age of sale was raised to 18. The survey found that, of children aged 11 to 15, 34 per cent. usually bought their cigarettes from a shop, and that was the single largest source of tobacco for people under age. It did not, however, tell the whole story and the Committee may find it helpful if I set out other aspects. Over a fifth were given cigarettes by friends and just over one in 10 by family members; and 18 per cent. said they often bought cigarettes from other people. That gives us some idea of the scale and extent of the problem that we are all committed to tackling.

In total, other people were the most usual source of cigarettes for just over half of children. That is completely unacceptable. The proposed amendment, however, would not address this particular problem. It would apply only when an individual specifically purchased tobacco on behalf of a child. What would not be taken into account—I am concerned about this—are cases where, for example, friends share a pack of cigarettes. That would not count. Parents giving a cigarette from their own pack would not count either. Unless it was possible under this amendment to prove at the time that the person who had bought the pack intended to sell it on to a child, it would not count as a proxy purchase offence. While that was not the intention of the amendment, that is where it takes us.

I would like to place it on the record that I know that the majority of shopkeepers take seriously their responsibilities to stop under-age sale and I would like to thank them for their efforts in this regard. We need to ensure, however, that children cannot get hold of tobacco. Although the intent behind it is understandable, this amendment in respect of proxy purchasing would be both difficult to enforce and ineffective. Perhaps I could explain therefore what I think we should be doing.

Mike Penning (Conservative, Hemel Hempstead)

I cannot understand the logic; perhaps the Minister could elaborate. If the Government use the logic that the Minister has just used that such a provision would be difficult to enforce, my reply is that this part of the legislation is exactly the same as other parts. If an adult purchases alcohol in an off-licence or a licensed premises, takes it outside and either sells or gives it to a person under the age of 18, that is a criminal offence. If that is not enforceable, why is it on the statute book? All we are asking for is for that to be duplicated for tobacco.

Gillian Merron (Labour, Lincoln)

Perhaps I could refer the hon. Gentleman to the full section 149 of the 2003 Act. I would like to say why the two areas are different. To reassure the hon. Gentleman, I completely understand his intent. Perhaps he will allow me to elaborate on where we want to go with this issue.

We can deal only with the amendment that is before the Committee, and it does not replicate the defence in the 2003 Act of proxy purchasing provision. Instead, the amendment replicates the defence used in the Bill’s tobacco display provisions, which are more prescriptive on what a person must do to qualify for a defence. As I said, we can only deal with what we have before us.

Supply of tobacco to children is a much bigger problem, which is one that, I assure the Committee, I intend to examine in our new tobacco control strategy, which will be published later this year. We had some 100,000 responses to our consultation, which will set us up very well to be able to move forward on the issue. I want to be able to assess how we can help people to understand how dangerous and addictive tobacco is, and how important it is to stop children from accessing it.

I also want to look—the hon. Gentleman made reference to this—at what other countries have done to tackle under-age access to tobacco. For example, we are not aware of any countries that have proxy purchasing for children as an offence, as we have before us today. But we know laws against the supply of tobacco to children exist in Latvia, Italy and Ontario. That means—it is important for me—that anyone giving or providing tobacco to a minor is committing an offence. I am keen that we find the right way forward through legislation, information, education and whatever other means necessary to tackle the problem.

What we are doing is important because supply of tobacco to children is a very much bigger problem. It does not matter who is providing it or for whatever reason, whether it is retailers, friends or family—it is wrong to supply those under the age of 18 with cigarettes, and we should act to protect children from that. I hope that with the reassurances that I have given, and with the expression of understanding of what we are seeking to do, the hon. Gentleman will be able to withdraw his amendment.

Mike Penning (Conservative, Hemel Hempstead)

It is new clause 1, rather than an amendment.

Gillian Merron (Labour, Lincoln)

I beg your pardon.

Mike Penning (Conservative, Hemel Hempstead)

What has been missing from the Minister’s comments is how we got into the position in the first place. The legislation was changed and it became a criminal offence for the under-18s. But she seems to have forgotten the proxy purchase issue, which was addressed—[Interruption.] The Minister, from a sedentary position, is saying no. The matter has been missed, because it is missing—it is not on the statute book. What we are trying to do—I freely admit that it may not be perfect—is to bring us from a position of nothing to a position of protecting young people, in a Bill which the Government say is evidence-based to protect children from starting to smoke.

I had hoped that the Minister would say in her comments, “It is not perfect, so we will draft an amendment on Report. We will come back with that, and we will ban it in the Bill. We will send a message out there to shopkeepers.” The Minister is right in saying that the vast majority of them are doing a fantastic job of enforcing the law and vetting who purchases tobacco. But with one in five in the nation buying black-market products, and two in five in some parts of the country—I understand that in some inner-city areas, the most deprived areas, it is even higher than that—where no one is taking a blind bit of notice about their age because they are just trying to make a fast buck, we need to have another criminal offence similar to that in the alcohol legislation. That is where the Bill should be.

The Minister says, “We are going to have a review, we will look at the matter and we will come back in the autumn with a strategy,” but the Bill could have contained a lot of other things that would have helped, not least nicotine replacement therapy or the whole issue of the black market or of cheap whites—loads and loads of pieces of legislation. The truth, I believe, is that because the new clause is coming from the Opposition Benches, whether those of the Liberal Democrats or Her Majesty’s official Opposition, the Government have closed ranks: “No, we’ll sort this out in good time.” I would be more than happy to withdraw new clause 1 if the Minister said to me that, on Report, she would bring back provisions that tighten up the minor areas—although I do not completely agree with the way that the Minister referred to them.

For instance, supplying alcohol to one’s children is completely different in legislation. One can supply wine to them at 14—it is not illegal to supply alcohol to one’s children. That is completely different, which is why it was not in the new clause. The comparisons do not work. I am really very sad for the young people of this country who are having their lives blighted by people proxy purchasing for them. Proxy purchasers can make an awful lot of money by selling to young people and encouraging young people to start smoking, getting them addicted. New clause 1 would take a huge leap forward into protecting the public health of young people.

I am hugely disappointed that the Minister has not come before the Committee today, knocked my new clause down but said, “We will address this on Report—there is plenty of time to address it—and we will protect young children.” I cannot press the new clause to a Division in the Committee, because I am advised by the Clerks that if I do, the House will be restricted from voting on it on a free vote, which would also be important. I hope that in the meantime, before Report, both Ministers, the Secretary of State and their advisers see sense and table an amendment to the Bill that protects young people from proxy purchase. If not, I shall move a similar amendment on Report.

I beg to ask leave to withdraw the clause.

Robert Key (Conservative, Salisbury)

Is it your pleasure that the clause be withdrawn?

Gillian Merronrose—

Robert Key (Conservative, Salisbury)

Does the Minister wish to speak?

Gillian Merron (Labour, Lincoln)

Yes. I am sorry that I was not quick enough off the mark, Mr. Key. I am sorry to disappoint the hon. Gentleman, but I shall reiterate some of my points. We can only go on what the new clause before us says; it would be difficult to enforce and would not do the job required. I can confirm that I will examine the full range of effective measures that we can take in the tobacco control strategy. I feel that we will get a better job done when we have that.

Mike Penning (Conservative, Hemel Hempstead)

This is the second time that the Minister has said that it would be difficult to enforce measures against the proxy purchase of tobacco, but the alcohol legislation on the statute book specifically has such measures. Why would it be more difficult to enforce measures against the proxy purchase of tobacco than to enforce the existing legislation on alcohol?

Gillian Merron (Labour, Lincoln)

I had thought that we had talked about the difference, but I shall have to go through it again. New clause 1, which is before us and is all that the Committee can deal with, is rather different from the provisions on alcohol. There has been reference to alcohol and tobacco being different. There are some limited legal circumstances in which alcohol can be drunk by under-18s, as we know if we look at the detail of the legislation, whereas tobacco should always be out of reach.

I very much welcome the zeal with which the hon. Gentleman puts his case, because—as I have heard in the Chamber as well as in Committee—not all right hon. and hon. Members on the Opposition Benches share his zeal. On tobacco display, on one of the points on which I had hoped—hope—for greater support, our proposals are there because we want to protect children from the addiction of smoking, which damages their health so badly.

Mike Penning (Conservative, Hemel Hempstead)

Will the Minister give way?

Gillian Merron (Labour, Lincoln)

New clause 1—

Mike Penning (Conservative, Hemel Hempstead)

Does that mean no?

Gillian Merron (Labour, Lincoln)

I am asking the hon. Gentleman to be a little patient.

New clause 1 as drafted does not do the job. I have given an assurance that we are very keen to tackle this issue, but doing it by creating an offence of proxy purchase, which does not exist in any other country and so we have little to draw on, would mean having to prove the intention to sell it on to a child. That would be the only way to count it as a proxy purchase offence.

Mike Penning (Conservative, Hemel Hempstead)

I will not be long, but yes, I do speak on this subject with zeal. If the Minister looks at Hansard and at the time I spent on the Select Committee with her hon. Friends, she will find that I was much more zealous there, particularly with the Secretary of State when she tried to bring forward a piece of legislation that was fundamentally flawed. But the key to being an Opposition Member is that we have a free vote—a conscience vote. Why is there not a free vote on the Government’s Benches? If the hon. Lady wants to talk about zeal, she should let her Back Benchers have a vote.

Gillian Merron (Labour, Lincoln)

Mr. Key, I am sure you know that these matters are subject to the usual channels. I am glad to hear that the hon. Gentleman will be withdrawing or not pressing new clause 1, and I hope we can make progress.

Sandra Gidley (Liberal Democrat, Romsey)

What I am struggling to understand is that the Minister sounds sympathetic, the Bill has been some time in preparation and the issues have been raised numerous times in debate on the Floor of the House, possibly in an Opposition day debate initiated by the Conservative party, yet we do not have any attempt by the Government to address a very real problem. Why is that? Why so slow?

Gillian Merron (Labour, Lincoln)

To reiterate once again, I believe that it is right to draw together all the concerns and we will address them, whether it is through legislation, information, guidance or a connection in the tobacco control strategy. I should have thought that hon. Members would be glad that we will be responding to a very full consultation, which has included retailers, those who do and do not smoke, and those who have to deal with the scourge of smoking. I do not want legislation that does not do the job. I want, as we all do, legislation that will do the job. If the hon. Lady feels that the approach taken in the new clause is the right way, doubtless she will pursue the matter. I am disappointed that it appears we will not be testing it in Committee.

Sandra Gidley (Liberal Democrat, Romsey)

The Minister almost seems to be making a good argument to defer the whole Bill until we have the tobacco strategy. I cannot see why the Government have cherry-picked some of the things that they like and that they think are a quick fix, and yet again thrown into the long grass measures that would make a real difference.

Gillian Merron (Labour, Lincoln)

The new clause would not make the real difference that we all seek. As I have said, we will address the matter in full on all levels later in the year through the tobacco control strategy, and it will be informed by the consultation’s 100,000 responses. It appears that new clause 1 will not be promoted and I welcome that, but I hope that the spirit in which I welcome that is understood.

Robert Key (Conservative, Salisbury)

Because I had put the question that the clause be withdrawn, and the Minister by speaking indicated that she did not wish to see it withdrawn, the Committee must now come to a decision.

New Clause 6

Stephen O'Brien (Conservative, Eddisbury)

I beg to move, That the clause be read a Second time.

Andrew Turner (Conservative, Isle of Wight)

On a point of order, Mr. Key, could you indicate whether there has just been a Division?

Robert Key (Conservative, Salisbury)

No. There was no Division, because there was no one on your side saying what they wanted to do.

Stephen O'Brien (Conservative, Eddisbury)

Which of course, in parenthesis, was because had we forced the Division, that would have precluded—in the way these things are handled—being able to bring this back on Report, so quite rightly we had to do that.

Mike O'Brien (Labour, North Warwickshire)

On a point of order, Mr. Key. May I clarify the position? The new clause was negatived in the sense that the Committee disagreed with it. That was a vote, therefore, even though there was not a Division. A decision was made in relation to it, but not a Division.

Robert Key (Conservative, Salisbury)

It was a decision, not a vote.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful for your clarification, Mr. Key. As far as we are concerned, it has left us with the option of being able to make sure that that is brought back on Report. It would have been closed out had we forced a Division—so no one should read into the fact that we were not pressing it to a vote the absence of our continuing earnest underlying new clause 1.

New clause 6 concerns an issue that our discussions about pharmaceutical needs assessments have not yet raised, and that is the provision of pharmaceutical services for patients living in cross-border territories. We touched on the subject in relation to other matters in the Bill. My constituency is widely affected by it; a significant number of my constituents in various villages such as Farndon, Shocklach, and Higher Wych, make use of Welsh NHS services. The Welsh Affairs Committee estimates that there are more English patients registered with Welsh GPs than vice versa—about 20,000 English patients with a Welsh GP and about 15,000 Welsh patients with an English one. In 2007, there was a net flow of 5,354 patients into Welsh primary care services from England.

The localisation of entry into the pharmaceutical list, through the pharmaceutical needs assessment, could impact negatively on those patients. If Wales grants applications to provide services on the basis of its Welsh population, and an English PCT does the same for its area, English patients registered with Welsh GP practices could find there is inadequate provision of pharmaceutical services in their area. My amendment seeks to ensure that Welsh Ministers take that into consideration when monitoring the PNA process, so that pharmaceutical services in cross-border territories do not suffer, and patients in those areas get a fair deal. The new clause is to probe the Minister about what provision the Government have made to ensure that residents of such areas have access to the same calibre of pharmaceutical services as elsewhere in England.

Mike O'Brien (Labour, North Warwickshire)

The provision of general medical services and pharmaceutical services is governed by powers within the National Health Service (Wales) Act 2006. Such powers are within the devolved competence of Welsh Ministers, and if the new clause were accepted, it would derogate from the devolved competence of Welsh Ministers in respect of their functions in relation to health.

Additionally, the measures do not accord with—and, in fact, run contrary to—the principles underpinning the protocol for the cross-border commissioning, which was agreed between the Welsh Assembly Government and the Department of Health on 1 April and which will continue until the 31 March 2011. That protocol sets out agreed procedures for commissioning NHS health care for residents in England who are registered with a GP in Wales, and for residents in Wales who are registered with a GP in England.

While the PCT retains the legal responsibility for its resident population registered with a GP in Wales, local health boards commission such services on the basis of clinical need, and as a minimum, the Welsh Assembly Government’s standards for access to health care, irrespective of the location of the provider. That means Welsh GPs are required to work to the standards and targets set out by the Welsh Assembly Government for all the patients that they see and treat, irrespective of the patient’s place of residence. For those reasons, Welsh Ministers have confirmed that the new clause would not be accepted, so I hope that it will not be pressed.

We have set up, with great care, a relationship with the devolved Administration in Wales. That has been carefully negotiated and the arrangements have been agreed up until 2011. This clause would change everything, without full consultation and with no discussion.

I appreciate that it is important to deal with these issues appropriately, but I assure the hon. Member for Eddisbury that if an MP, on behalf of their constituent, raises an issue with a Minister about the provision of health care by a Welsh GP to an English patient, the Minister will be able to pass it to the Welsh Health Minister, and the Welsh Assembly Government would then respond to the letter in the same way as that from an MP. There are ways in which these matters can be dealt with but trying, in effect, to write a new derogation from the relationship with Wales is really not the way forward.

Stephen O'Brien (Conservative, Eddisbury)

As I said, this is a probing new clause, so I will not press it. What is important, given that last element of the Minister’s response, is that I am glad to note that the Department of Health would, for instance, pass on a complaint that I might write to him on behalf of my constituent who has a problem with a GP in Wales with whom they are registered, to the holder of the equivalent ministerial position in Wales.

I am grateful for that assurance, because outside the Department of Health—which I have had no cause to write to on behalf of a constituent—my experience to date in about 70 cases that I have taken up over the past decade has been, at all times, for my letter to be passed to the Welsh Assembly’s equivalent Minister, then, if I receive a response at all, to hear that I have no rights as an MP and that they therefore respond to me as to any other citizen in the country. The quality of response has been extremely poor compared with the assurance that the Minister just gave, so I am grateful for that, not least as I rather hope that the rest of Whitehall will note what he has just said and that for once, after a decade of trying, I might get somebody in the Welsh Assembly to listen to the enormous issues that spread right across the Welsh border with Cheshire along the River Dee. That has been helpful from a more general point of view, and I hope that the Minister realises the enormous consequences of the commitment that he has just given, which I will now be able to pray in aid across the whole of Government.

That said, I note the care with which he thinks that the protocol has been negotiated and the number of years that it is meant to last, but it does not work in all respects. There are significant shortcomings in the way that the protocol operates, and there have been some real problems, not so much in primary care services, but certainly in emergency services, resulting in a number of patients coming across the border from Wales to access the shorter waiting times at the Countess of Chester hospital. Meanwhile, we have had a number of English patients wanting to access the free prescriptions in Wales. The protocol is fairly frayed, at times, and causes an enormous amount of casework for local MPs.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Gentleman mentioned the free prescriptions in Wales. How much of a factor is that in the disparity? Are people actively choosing to go over the border and register with a Welsh GP because of the free prescription charges or are other factors at work that a good pharmaceutical needs assessment could, potentially, address?

Stephen O'Brien (Conservative, Eddisbury)

That is an interesting question. I shall be careful not to stray too far, but it covers cross-border pharmaceutical services in so far as the needs assessment is taking place within a village where it is literally 200 ft down to the old Roman bridge to cross the River Dee from Farndon to Holt in Wales, where they also have a pharmacy. Those needs assessments have, for these purposes, been taking place in completely separate countries yet, in truth, the proximity of those two pharmacies compared with many facilities across many other, more rural parts of my constituency has shown that there is a difficulty at these points in how territories are defined.

Most importantly, at the moment it is too early to tell; there is not enough evidence, and it is anecdotal about people with long-term conditions and who do not get free prescriptions in England. However, particularly if they are of working age, there is some evidence of attempts to register with Welsh GPs in order to access free prescriptions. On that basis, I am happy to withdraw the new clause, but we have had a rather useful discussion. I beg to ask leave to withdraw the clause.

New Clause 8

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move, That the clause be read a Second time.

This new clause is similar to the amendment tabled by my noble Friend Baroness Tonge in the other place. It seeks to end the situation where refused asylum seekers, including children, the elderly, victims of torture and other seriously ill and extremely vulnerable people, can be denied secondary health care unless they can pay for it. There are many who regard this policy as inhumane. It puts asylum seekers’ lives at risk and is likely negatively to impact on public health in general. The policy is also very difficult for health care professionals to administer and enforce.

It may be worth providing some background to this. In 2004, as part of the National Health Service (Charges to Overseas Visitors)(Amendment) Regulations, the Government introduced charges for all refused asylum seekers to access hospital care except for emergencies. In practice that has meant that treatment in an A and E department is free but all other hospital and specialised medical care is chargeable; that strikes many as a blunt instrument. That includes patients on section 4 support, pregnant women, children, cancer patients, diabetics and those needing treatment for HIV/AIDS. Treatment for most communicable diseases, except HIV/AIDS, is an exception to this rule and can be provided free of charge; there seems to be an anomaly in not including HIV/AIDS. Given how difficult it has become for asylum seekers to access health care, it is questionable whether they will come forward for screening or treatment for diseases such as tuberculosis or mental health problems.

The rationale at the time for this policy seemed to centre on health tourism. That was something the media were concerned about at the time, but there has been relatively little evidence that it was a significant problem. The occasional person will come to the UK specifically to access health care, but there is no evidence that that is the prime motivation for most people entering this country. In 2009, the Royal College of General Practitioners concluded:

“There is no evidence that asylum seekers enter the country because they wish to benefit from free health care.”

It also stated that GPs have a

“duty of care to all people seeking healthcare”

and

“should not be expected to police access to healthcare and turn people away when they are at their most vulnerable.”

The Royal College of Psychiatrists has also observed:

“The psychological health of refugees and asylum seekers currently worsens on contact with the UK asylum system.”

During its scrutiny of the Bill, the Joint Committee on Human Rights noted:

“We remain as concerned as we were more than two years ago when we concluded our inquiry into the Treatment of Asylum Seekers that a highly vulnerable group of people in the UK...continue to be denied access to fundamental healthcare”.

In the first two years following the introduction of the regulations, the Refugee Council worked with dozens of refused asylum seekers who had been denied or charged for the health care they urgently needed. To give a snapshot of the sort of cases that have fallen foul of the regulations, 15 women and two girls were charged more than £2,000 for maternity care and in some cases were denied that care if they could not pay in advance. I would contend that the unborn children had a right to care in utero, but others decided differently. Ten people who needed operations for different medical conditions or treatment for injuries sustained in the UK were denied treatment, as were people with cancer. A gentleman with bowel cancer was admitted to A and E, but his operation was cancelled when he was unable to pay for it and he was told to come back when his condition deteriorated. There are many similar examples.

Refused asylum seekers face considerable obstacles to accessing care, including confusion about entitlements, GPs using their discretion whether or not to register or treat them, language barriers and so on. This all paints a very confused picture. Despite having been refused asylum in the UK, some of these people have horrendous stories. They sometimes have health problems linked to torture, poverty in their country of origin or even mental health problems caused by their detention. The numbers may be relatively small but the problems are quite specific. I alluded earlier to the problem women asylum seekers face; if they are pregnant, they do not get good anti-natal care.

There was a successful legal challenge to this policy in April 2008, but the ruling was overturned on appeal by the Government. The Court of Appeal handed down its judgment on 30 March, finding that failed asylum seekers cannot be considered ordinarily resident in the UK and are not exempt from charging, even if they have lived in the UK for a year. However, the court also found that existing guidance is unlawful as it is not sufficiently clear on what treatment should be considered urgent and immediately necessary.

In response, the Department of Health issued interim guidance on the 2 April 2009. That makes it clear that immediately necessary treatment, including maternity care, must never be withheld; urgent treatment for conditions such as cancer, which would deteriorate significantly if untreated, should not be withheld; trusts should not pursue charges beyond what is reasonable; and non-urgent treatment that can wait until the person returns home should not be started until payment has been made. By contrast, in Scotland, refused asylum seekers receive free health care until they return home, and in Wales, the Welsh Assembly have confirmed that they will not charge refused asylum seekers for access to secondary health care despite the outcome of the appeal.

The new interim guidance is welcome, but it does not address the fundamental concerns relating to the charging regime and the way guidance has been implemented since 2004. There has been a lot of confusion and the new clause is an attempt to clarify some problems from the past. The policy remains burdensome on health care professionals. They may have to assess when a patient is likely to return home, or whether waiting until that time would lead to an unacceptable deterioration in the patient’s condition. This can be difficult and time consuming. It is also inappropriate to make health care professionals consider a person’s immigration status when their duty of care should be their only concern. In addition, there are still likely to be differences of opinion between clinical and non-clinical staff as to which cases are immediately necessary or urgent, because hospitals will not be reimbursed for the treatment they give to refused asylum seekers.

We are moving into the argument about whether it is a good thing to charge for health care, but if people do not come forward there are public health risks, because they may not be screened for treatment or they may not receive inoculations. The policy is not consistent with the ethos of the NHS constitution, which we discussed at length earlier in the Committee.

Andrew Turner (Conservative, Isle of Wight)

How many asylum seekers live in England, and how many in Wales and Scotland?

Sandra Gidley (Liberal Democrat, Romsey)

I do not have that information, but if the hon. Gentleman is interested we can table a question to the Home Office and it will provide the answer.

In May 2009, the committee on economic, social and cultural rights voiced its concern over the low level of support for and difficult access to health care for rejected asylum seekers. The charging structure also runs counter to other Government policy objectives on public health, social exclusion, combating HIV/AIDS and TB, and the Every Child Matters agenda.

Restoring refused asylum seekers’ access to free secondary health care would ensure more efficient use of NHS resources. Treatment that prevents or cures illnesses is obviously more efficient and effective than waiting for a condition to deteriorate until it reaches the thresholds of immediately necessary or urgent treatment, which cannot wait until the person is expected to return home. That conclusion was also reached by the Joint Committee on Human Rights, which repeated a previous recommendation that

“free primary and secondary healthcare be provided for all those who have made a claim for asylum or under the ECHR whilst they are in the UK, in order to comply with the laws of common humanity and the UK’s international human rights obligations, and to protect the health of the nation”.

It also stressed the very difficult position of refused asylum seekers who cannot be returned and recommended that the Government issue guidance to set out clearly their entitlement to free health care while they remain in the UK.

If the Department of Health issues further guidance before that has been done, it should help to ensure the proper implementation of existing guidance and relieve some of the burden on health care professionals by specifically stating that the decision whether to treat somebody rests entirely with the commission. That was confirmed in another place by Baroness Thornton on 6 May 2009.

Refused asylum seekers on section 4 should be exempt from charges as the grant of section 4 support means that the Government accept that those people are temporarily unable to return home and would otherwise be destitute. All HIV treatment should be considered immediately necessary. That has been recommended by the British HIV Association and there is clearly a public health implication here. The Government should also take steps to reimburse hospitals in areas where large numbers of asylum seekers are grouped so they do not have to bear an unreasonable extra cost from properly implementing the guidelines. There would obviously be a disproportionate impact on those areas.

Earlier, a comment was made from a sedentary position about how much all this would cost. The more important question is, how much less would it cost if we treated early? Community-based health care is cheaper than secondary health care. Seeing a nurse at a GP’s practice costs £33 an hour. Seeing the GP costs £116 per hour of patient contact. Prompt referrals to hospitals for care that is required can be very cost-effective. For example, seeing a doctor who is a medical consultant based in a hospital costs £163 per patient-related hour and out-patient attendance at a hospital for a face-to-face meeting, non-consultant led, would cost £55 for first attendance and £71 for the follow-up.

Compare that to the cost of treating someone whose condition is allowed to deteriorate until care is absolutely necessary. The average cost for a journey in an emergency ambulance is £263, or £344 in a paramedic unit. If surgery is required, the cost for a surgical consultant to perform an operation is £388 per hour. Similar arguments can be extended to mental health issues. In short— [Interruption.]

The hon. Member for Eddisbury has spoken at length on a number of amendments. The first one I speak at length on, he seeks to mock me. He is being rather churlish.

Mike Penning (Conservative, Hemel Hempstead)

It was me.

Sandra Gidley (Liberal Democrat, Romsey)

I must correct that—it was the hon. Member for Hemel Hempstead, who has been brief in his comments. In short, the amendment— [Laughter.] I could go on for longer if the Committee requires, but I will not. [Interruption.] Yes, there are a lot more yellow pages of notes, so the Conservative Whip should be careful before he comments further because I could probably speak on this matter until 5 o’clock if I so wished, but other important amendments need to be discussed. He can have it whichever way he likes.

The amendment would create fairness in a situation which is unfair on a lot of failed asylum seekers and does not treat them compassionately. It is ironic that the Government, in the form of the Department for International Development, put a lot of resource into improving health care in some of those countries, yet refuse the same people treatment if they are in this country. That is not fair.

Andrew Slaughter (Labour, Ealing, Acton and Shepherd's Bush)

I congratulate the hon. Lady, who was taking a bit of flak, on bringing the matter forward. Having said that, it does not sit easily with the Bill and I am not sure that the new clause is the way to address what is a complex issue—in several parts, as she suggested. However, one has to take one’s opportunities where one can. She has done that and she was right to do so.

This is a matter of concern to my constituents and to me—particularly to refugee organisations in my constituency, my law centre and other practitioners who represent refugees and asylum seekers. I am not sure that the original legislation was well conceived by the Government back in 2004, but we are where we are and the hon. Lady has indicated some of the problems that have come from that.

I want to highlight three separate areas. The first, which has already been mentioned, is refused asylum seekers under section 4. This appears to be entirely anomalous and I do not think that the new clause is dealing with that. It might deal with it in passing, but the issue goes much further.

I shall listen carefully to the Minister. I hope that we get some indication—if not today, then in the near future—of the Government’s intention. It is a highly anomalous situation whereby asylum seekers who are due for return are, with the Government’s agreement, not being returned for good and practical reasons—often to do with temporary situations in their country of return. In such circumstances, the Government do not have a leg to stand on in withholding health care.

The second problem, which recent legal proceedings have highlighted, is that the situation is confusing to medical practitioners and to asylum seekers. That has led either to asylum seekers not receiving the proper care to which they are entitled, such as primary care or maternity care, or to the types of care that are available not going far enough. I agree that the new guidance issued in April 2009 is helpful in clarifying some of those anomalies, but it shows that there were anomalies and confusion, and that there is continuing confusion in some areas.

I hope that the Government look at the matter again. It is principally an issue for regulations under secondary legislation and guidance, rather than primary legislation. However, the Committee offers an opportunity to ask the Government to look again at the circumstances in which there is either a clear humanitarian need or a pressing practical need for conditions to be dealt with.

One of those conditions is HIV, which is primarily excluded from treatment. I cannot see why that condition does not fall under the type of urgent and necessary care that would allow immediate treatment, with later charging, if necessary, rather than being excluded from other contagious and infectious conditions. That is another area that I hope the Government address. It appears that the Liberal Democrats wish to go further than simply repealing the legislation wholesale.

During the Division, I had an opportunity to talk to my hon. Friend the Member for Hendon (Mr. Dismore), who chairs the Joint Committee on Human Rights, and who, in April 2009, produced a powerful argument along those lines. The Government should look at it again. The cost arguments can go backwards and forwards. The costs in terms of overall health service spending are clearly de minimis, although I am not saying that they are not large. However, there are substantial arguments that the bureaucracy, the waste of clinical time and the delay in treatment that permits a condition to worsen are on purely practical, let alone humanitarian, grounds matters that should be looked at again. I am talking of conditions such as cancer, which, perhaps in its early stages, may not receive the type of secondary treatment necessary in this respect, but which in later stages clearly would receive treatment.

I believe, as probably all hon. Members believe, that when asylum applications have failed and due process has been carried out, it is right to return people to their country. Indeed, people who abuse the asylum process in that way do no service to genuine asylum seekers. However, for those caught up in the process of bureaucratic delay and who remain in the United Kingdom—we have heard about the anomalies between the different constituent countries—the system is not achieving a great purpose.

I do not believe that a large number of people come as bogus asylum seekers to receive medical treatment or significantly delay their return for spurious reasons to prolong that medical treatment. In the end, the Government will need to decide largely to abandon the position they have taken—on practical as much as humanitarian grounds. Today, I emphasise the point of detail I have raised, which is essentially to do with failed asylum seekers not being returned because of a Government decision or because of conditions where treatment is in fact urgent and necessary, requiring care that may fall outside the provisions.

I look to the Minister to explain the Government’s line and to say whether further announcements or guidelines will be produced.

Stephen O'Brien (Conservative, Eddisbury)

Everything that needs to be said on the matter has definitely been said. While some important and sensitive issues lie behind the new clause, as well as those of equity, it does not show real understanding of cost implications and it would premature and difficult to include it in a legislative provision at this stage. Were the new clause pressed to a Division, regrettably, Conservative Members would be unable to support it.

Patrick Hall (Labour, Bedford)

I want to make it clear to my right hon. and learned Friend the Minister that I take the issue seriously and welcome the contributions made by the hon. Member for Romsey and my hon. Friend the Member for Ealing, Acton and Shepherd’s Bush. I will not repeat what they said, because there is no need to do so. In fact, while the hon. Member for Romsey was speaking, I had the impression that some Opposition Members regarded the matter as a waste of time and were more interested in other things. [Hon. Members: “No.”] I do not want to misrepresent anyone, but that feeling came across.

I want to make it clear to my right hon. and learned Friend that that is not the attitude adopted by many Labour Members. This is not a question of dealing with such matters as quickly as possible. It might not be suitable to add such a provision to the Bill—that is fair enough—but I hope he will acknowledge that he, too, takes such matters seriously and that there may be an opportunity for him to consider the issue further on Report, or at least suggest how such matters might be more properly addressed in the future.

I remember my right hon. and learned Friend introducing a White Paper some years ago, when he was at the Home Office. I think it was entitled “Faster, Firmer, Fairer”. Many improvements have been made to the immigration control system, some parts of which are faster, but people can still exercise appeal rights and some will not be returned for other reasons, such as the country of origin being deemed unsafe and no safe third country being identified. Genuine issues should not be treated or dismissed lightly.

Mike O'Brien (Labour, North Warwickshire)

I begin by being clear that the Government recognise and respect the fact that their duty is to ensure that the provision of health care is fully compliant with human rights principles. That is important, and we want to ensure that it is firmly on the record.

There are two distinct parts of the new clause, both of which seek exemption from charging for NHS hospital care—an addition to the existing category of refugees and an extension to those refugees and other human rights applicants to include those whose applications have been refused, generally referred to as failed asylum seekers.

On the addition to the existing category of refugees, I should make it clear that the definition in the regulations is intended to cover any person seeking refuge or protection, whether under the 1951 UN convention—in other words, an asylum seeker—or through any other route, including the European convention on human rights. The trigger, therefore, is not whether a person is designated an asylum seeker, but whether they are deemed to be seeking refuge—that is an important category. That means that, in addition to asylum seekers, others may be included.

That definition, in practice, already captures most human rights applicants. As such, they are entitled to free health care while their claim is being considered. A small number may seek leave under the articles of the ECHR relating to family life or marriage. That is a separate category, as they are not seeking refuge but are seeking entry in relation to family life and marriage. We would not extend full rights and benefits unless, or until, leave to remain was granted, as is the case with any other foreign national who seeks to remain in the UK. That exception is important, but for those seeking refuge the position is clearer, although I am not saying that it is entirely clear.

The existing regulation is therefore sufficiently broad to cover genuine humanitarian needs and does not require amendment. However, the Department is looking at the issue with care and wants to update its guidance on charging. For the avoidance of doubt, we will certainly ensure that the intended meaning of the definitions is made fully clear when the guidance is published.

On the proposal to extend free hospital care to failed asylum seekers, the issue of whether they should receive free and unrestricted treatment must take into account a range of complex health conditions, in particular balancing migration strategy with the need to support human rights and public health. Hon. Members will be aware that a review of access to the NHS for foreign nationals is looking at that issue and will report shortly. It would not be appropriate for me to prejudge the outcome of that review. The issue is being looked at, and it is right that it should be.

I should set out some of the key rights that people have. I want to look at the human rights of the people mentioned, many of whom are here because of their circumstances. We are aware that failing an asylum test does not mean that a person’s human rights are somehow invalidated—that is not the case.

First, any course of treatment that commenced before an asylum claim was refused will continue free of charge until a clinician considers it complete. Only new courses of treatment will incur a charge.

Secondly, treatment in a hospital A and E, or any emergency treatment at a GP surgery, is free of charge. Treatment for many infectious diseases and sexually transmitted diseases—I will come back to HIV—is also free.

Thirdly, urgent hospital treatment must not be denied, delayed or restricted. Hon. Members may be aware that a recent Court of Appeal judgment found that the Department’s guidance on that was not entirely clear. The Department has fully accepted the court’s judgment and welcomed the opportunity to act further to ensure clarity on the rights to treatment and their being enforced.

We issued immediate interim guidance to the NHS to clarify matters related to urgent treatment, which is what clinicians judge cannot wait until the patient is likely to return home—whether or not some treatment can genuinely wait and that not exacerbate a condition seems to be the real issue. That urgent treatment should always go ahead even if payment has not been received. If the patient genuinely has no funds or resources, a hospital may decide not to ask for deposits or may write off any debt. We expect hospitals to act reasonably when asking for payment or seeking to recover any costs.

We have also committed to a full redrafting of the guidance on the urgency of treatment—in the autumn, after assessing the impact of the interim guidance. We want to see what the guidance we have issued so far has done and then look at how it needs to be changed. We want to do that in reasonably good time in the autumn.

Sandra Gidley (Liberal Democrat, Romsey)

I am not sure whether the Minister is saying that the guidance will be reviewed or that new, revised guidance will be produced in the autumn. When does he expect new guidelines to be produced?

Mike O'Brien (Labour, North Warwickshire)

I am saying, in effect, both. We want to see the impact of the interim guidance—how it deals with the problems that have arisen, some of which were outlined by the hon. Lady and others—but we also want to review how the guidance can be further developed. A review of the guidance and a review of how the interim guidance has operated—we want to ensure that we do both. In that context we want to consult the key stakeholders to ensure that the final guidance is clear, operable and compliant with the Court of Appeal judgment.

Andrew Slaughter (Labour, Ealing, Acton and Shepherd's Bush)

I am pleased to hear what my right hon. and learned Friend says about looking at such matters again, including charging. He will consult with no doubt better qualified people, but will he also consider meeting me and other hon. Members who are interested in the issue?

Mike O'Brien (Labour, North Warwickshire)

I shall be happy to meet my hon. Friend and others to discuss the issue. Let me add that the Government are committed to re-examining the case for exemption from charges for those failed asylum seekers whom the UK Border Agency accepts have a legitimate, temporary barrier to leaving the UK—of the sort he identified—and who are given section 4 support. I confirm that the review of access is actively considering that.

We take the issue seriously in relation to not only human rights, but people’s most basic rights and the principles of the NHS. I assure the Committee that the Government want to deal effectively with the issues of accessibility to health care for refugees, as shown by our actions and commitments on the definition of “refugees”, the urgent treatment guidelines and those failed asylum seekers covered by the section 4 provision—legitimate temporary barrier to leaving the UK.

Given those safeguards and commitments, the Government do not feel that a more explicit and extensive exemption from charging is appropriate now. We want to see what the impact of the interim guidance is. We want to have a look at the issue in the round and we do not deny that there are related issues. There is no Government denial that the issue is sensitive and needs to be resolved with a degree of care and concern for people who may well be vulnerable. On that basis, I hope the hon. Member for Romsey will not press her new clause to a Division.

Sandra Gidley (Liberal Democrat, Romsey)

I am inclined not to press the new clause to a vote. I do not think that I would receive support from Conservative Members. Interestingly, I might receive some support from Labour Members, but I shall not push it at this stage.

Stephen O'Brien (Conservative, Eddisbury)

That is not because of the issues that lie at the heart of this. I hope I made that clear. Indeed, it needed to be made clear to the hon. Member for Bedford, who cast completely unfounded aspersions about the motives of Conservative Members. [Interruption.] Completely unfounded, and he should withdraw the remark.

It is important to recognise that there is a real issue here, because what is contained in the new clause is a very large spending commitment, which at the moment is not costed, making things very difficult for anyone looking at the deployment of resources either in the NHS or in any other Government budget. A much better cost assessment would be needed in order to proceed to support what lies at the heart of the issue—the substance—on which the hon. Lady made some very fair points. However, without costings, the measure presents difficulties, of which I dare say she might be aware, for her own party’s economic policy.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the hon. Gentleman for that clarification. I can assure him that my hon. Friend the Member for Twickenham (Dr. Cable) would have my guts for garters if I proposed an unlimited spending commitment. However, neither of us knows the truth of the matter at this stage and I accept that the hon. Gentleman supports the sentiment behind the new clause.

I am reassured that there is an active review of section 4 payments, because it struck me that this area is particularly unclear. I retain some concern over the public health aspects, but there seems to be quite a lot of work going on. At this stage, therefore, I think it better to withdraw new clause and to review what is happening, prior to consideration on Report.

Something may be produced at that time, but it would be helpful if the Minister wrote to me on any other points of clarification, because significant numbers of people working in the health service find the guidelines difficult to work under. They are not exactly clear and the sooner we have clarification on this matter, the better it will be for the people who are suffering as a result of the policy. It will also be better for managers and clinicians, who are sometimes caught, having to make difficult decisions. We need greater clarity. I beg to ask leave to withdraw the motion.

New Clause 9

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move, that the clause be read a Second time.

The Committee will be relieved to know that this will be a somewhat shorter explanation. Earlier in Committee, I raised concerns about the accessibility of the NHS constitution in formats for people with different disabilities, and was not entirely reassured that this was covered under the Disabilities Discrimination Act 2005. We have had that Act for some time, and the figures I produced previously showed that a lot of people—particularly partially sighted people—are not receiving information in a useable and useful form.

The Government have talked a great deal about the importance of information: we have the NHS Choices website and NHS Direct. They have been very committed to providing the public at large with information, and I welcome that. However, people working in government and in trusts have a duty to ensure that as many people as possible can access that. Therefore, this clause asks that trusts should publish, as part of their reporting on their disability equality duty obligations, details of the number of documents they have provided to disabled people in formats other than standard print. Again, it is all very well having the legislation, but if it does not require people actively to do something which can be monitored, it is very often forgotten or, worse still, ignored. With that, I withdraw my remarks to a close—sorry, draw my remarks to a close.

Stephen O'Brien (Conservative, Eddisbury)

I was just trying to work out what withdrawing the remarks meant, and whether I was going to have an opportunity to stand up and support the spirit of the new clause. I would, however, have preferred subsection (2) to say “patients or members of the public with disabilities”.

Subsection (2) seems valid; subsection (3) is more bureaucratic, which I think the hon. Lady accepts, and I am not sure whether accountability could not be exercised in other, somewhat less bureaucratic, ways. Without costs being properly identified and attached to this, it would be difficult to gain the Opposition’s support, but at the same time I welcome the spirit in which it has been presented and moved.

Mike O'Brien (Labour, North Warwickshire)

The hon. Member for Romsey shares common ground with us in wanting to ensure that people who need access to this sort of information get access to it. The only difference between her view and mine is that I think that the legislation is covered, in the sense that provisions are in place to enable access to such facilities. We would do no good in putting on the statute book something that is already there, merely because the provisions have not yet had the impact that she and I want.

Repetition does nothing. We need to ensure that existing legislation is used effectively. Governments and the House can put on the statute book provisions enabling those with disabilities to get the access and information that they need, but those powers need to be used and enforced. Sometimes that requires individuals taking cases; more often, it requires authorities and organisations to comply better.

I have no problem sharing the hon. Lady’s ideas, but we already have the Disability Discrimination Act 2005, which came into force in December 2006 and is working its way into place. It placed a new statutory duty, the disability equality duty, on public bodies to promote greater equality of opportunity for disabled people and required public bodies to make reasonable adjustments to meet the needs of people with disabilities. At the time, the Department of Health published “Creating a disability equality scheme: a practical guide for the NHS”, which included sections on monitoring within such a scheme. Further to that, in June 2009, the Government published the revised single equality scheme setting out how we intend to meet our duties under equality legislation, including the DDA. I will be happy to circulate those documents to the Committee so that members can be satisfied about the policy.

As for implementation, the Government are aware that the NHS can demonstrate examples of good practice, but we certainly acknowledge, as the hon. Lady observed, that there is still some way to go in order for equality to be mainstreamed and sustained. In other words, there is still a lot of work to be done. To address those practical issues, the Government put in place a number of initiatives, often working in partnership with the NHS and other key stakeholders. Of central importance will be the new equality and diversity council, which aims to improve the NHS’s equality performance for both patients and staff. Furthermore, as part of the pacesetters initiative, the Department of Health is working with six strategic health authorities and 34 trusts to trial different approaches to deep-seated inequalities, including those arising from disability. Evidenced good practice will then be disseminated widely in the NHS.

Last year, the Department, with support from the Equality and Human Rights Commission, trialled legal compliance workshops. A model workshop is now available for strategic health authorities to use, and NHS South West has already used the model to run its own regional event. As subsection (3) of the proposed new clause highlights, good equality data are needed so that the NHS can better draft and understand its equality schemes, plan, commission and monitor service delivery and plan and monitor work force developments. In November, a new equality monitoring guide covering all equality strands, including disability, will be issued. The guide will confirm the codes that the NHS should use when monitoring for equality and give good practice examples of equality data collection and use.

In other words, we have the law, and I do not think that we need to repeat it. What we need to do now is to find better ways of ensuring that it happens in practice for those affected and those with disabilities. That needs to be the objective.

Sandra Gidley (Liberal Democrat, Romsey)

The Minister is well intentioned, but alarm bells start ringing when I hear the words “we have good practice”. I contend that there is a best practice for almost everything in the NHS—world leading in many cases. Since joining the Select Committee on Health, I have travelled to various places only to find that there is something just as good or better on our doorstep. In the past the NHS has been spectacularly bad at spreading that best practice; I wish the Minister success in improving that. Were all trusts to adopt best practice in everything, we would have a health service that was second to none.

Mike O'Brien (Labour, North Warwickshire)

One of the key tools we have to spread best practice in the NHS are the quality accounts in this Bill. Ensuring that we spread information and emphasise the quality of the different components of the NHS does not only mean raising everything to a minimum standard, which we still have to do, but also making sure that best practice is more effectively spread across the NHS.

Sandra Gidley (Liberal Democrat, Romsey)

My concern is that many of the bodies he has announced are fairly new. I welcome the fact that the Department is working with the SHAs and the trusts, but—again there is a health warning—they need to ensure that best practice is more widely implemented. It would only be fair to allow some of that a chance to bed in, to actually have an effect. I hope that, with the coming financial pressures, this is not one of those things that is quietly shunted to the sidelines. For many people, this is fundamental to the optimal use of the health service. I shall be watching closely, so I beg to ask leave to withdraw the clause.

New Clause 10

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move, That the clause be read a Second time.

The new clause has effectively been referred to as a plain packaging amendment; there were attempts at this in the other place. The clause provides the Secretary of State with powers to make regulations to restrict the use of branding, including the shape and colour of tobacco products and their packaging.

We have introduced this new clause because we have a slight problem with the Government proposals that were discussed on Tuesday afternoon, which sought to remove all tobacco products from display. We are talking about an adult product that should be sold only to adults. The evidence base for the effect on children is limited, which is a shame because the Bill has been touted as introducing measures to reduce smoking by children. There is a need to curtail further the impact of cigarettes; this new clause seeks to do that.

The pack would retain the brand name of the product, which would be displayed in a standard font, the volume of the product, for example 20 cigarettes, and features required by statute, including health warnings, tar and nicotine yields and the duty stamp. Committee members have been provided with examples of plain packs. Tobacco manufacturers have suggested that these would be easy to forge, but it seems to me, having seen forged packs, that existing packs are also easy to forge. The problem of smuggling needs to be resolved in a completely different way; there are ways that that can be achieved.

Mike Penning (Conservative, Hemel Hempstead)

European legislation allows the free movement of products from other European countries to this one. We all know about the border problems with smuggling and other issues. If we do this on our own without our European partners, European legislation would still allow those products to be in this country. How will that be? We would have products sold in this country that would be in plain packaging, while everything else that is floating around would be in other packaging. How is that going to balance out? Is it legal?

Sandra Gidley (Liberal Democrat, Romsey)

The tobacco manufacturers would say that it is not legal. There is another body of opinion that says it is. That is probably a lawyers’ charter—I do not know; it is up to the Minister to decide all that. Both the lawyers have gone, so perhaps we can make some progress.

The new clause states:

“Before making any regulations...the Secretary of State shall consult”

those affected. The regulations would be subject to affirmative resolution.

It is worth explaining why the measures are necessary. Currently, branded packaging constitutes a highly effective form of tobacco advertising. I had the dubious pleasure of serving on the Committee discussing the Tobacco Advertising and Promotion Act 2002, which was my first ever Bill. I was totally dismayed that it took us all day to define a tobacco product—that was baptism by boredom, I think, rather than by fire. Certainly, the intention of that Act was to try to prevent those visual triggers and icons, and the ways that products could be used and sold, from subtly reinforcing certain brand images.

As a result of the 2002 Act, all the emphasis has gone to tobacco display. Some of the display material produced by the large tobacco manufacturers is not in the spirit of that Act. The boundaries have been pushed so far that there are some large, flashy displays at point of sale. Although measures in the Bill seek to remove everything completely, there may be a compromise in restricting what is on display. It has been shown by numerous people that tobacco branding is particularly potent in the recruitment of young people into smoking habits. Design features, including colour coding, give them misleading and illegal impressions that one type of cigarette is less harmful than another. In fact, they are all fairly, or completely, harmful.

The new clause seeks to make plain packaging mandatory for all tobacco products, removing all branding and leaving the health warnings and the name of the product. Current branded packaging is a form of advertising and misleads smokers about the safety of the product.

Since the advertising ban, the pack has acquired even greater importance as an advertising tool. The tobacco industry uses it to recruit smokers to replace those who have quit or died. The industry saw early on that the pack would acquire even greater importance. In 1991, some time before the ban, the trade magazine “Tobacco International” wrote that

“the traditional cigarette pack will not be good enough for the selling job it will have to do. If it cannot be shown and marketed in advertising as before, it must carry the whole message itself.”

Many similar comments are available.

In a speech much quoted in the Lords, the global brand director of Imperial Tobacco boasted that it had used pack design to undermine the advertisement ban and increase sales. I quote:

“The effect was very positive. Already the number 1 brand, our share grew by over 0.4 per cent. during this period—that may not sound a lot but it was worth over £60 million in additional turnover and a significant profit improvement. Often in marketing, it is difficult to isolate the effects of individual parts of the mix. But in this case, because the UK had become a dark market, the pack design was the only part of the mix that was changed, and therefore we knew the cause and effect.”

Branding is especially effective when it comes to young people. The great majority of smokers start smoking before they are 18 and the longer they smoke, the harder they find it to quit. Research conducted by the university of Nottingham has shown that young people found branded packs much more attractive than plain packs, demonstrating the appeal of packaging and branding independent of the appeal of the tobacco product itself. There is much anecdotal evidence that if young women in particular see a glitzy pack they want one. It is almost like an accessory. Professor Gerard Hastings from the Institute for Social Marketing describes cigarettes as,

“‘badge products’ which are conspicuously consumed, particularly by the young, to make public statements about the user’s self-image and identity”.

With that goes the design of the pack.

Branding can also be used to mislead smokers about the relative safety of brands. The use of colours or livery can mislead smokers into thinking that their favoured brand or brand variant is a safer product than others. Some have shades of a colour so that the strongest cigarettes are darker. People smoking cigarettes from a lighter coloured pack will think they are less dangerous when in fact they are just as dangerous in the long run.

Amendments were tabled and debated at Committee and on Report in another place. They have been reintroduced here because there is new evidence, including research that stresses concerns raised in another place, which shows that the tobacco industry has advanced legal arguments knowing them to be unsound, including arguments promoted to Members of this House. The Bill has also been amended in response to Lord Stoddart’s objection at Committee stage that it should provide for an affirmative instrument. Greater clarity has been provided by the Minister on the forthcoming tobacco control strategy, which could include a planned review of the evidence.

Committee stage in another place coincided with the world conference on tobacco and health. On the very day that Members debated plain packs, new research was being presented at that conference. The new research was on previously secret internal tobacco industry documents that showed that not only are industry claims about international law incorrect, but tobacco industry advocates knew that to be so at the time they made the claims. The study confirms that.

Mike O'Brien (Labour, North Warwickshire)

The hon. Lady is taking us through a lot of background material, much of which is understood by colleagues on the Committee—indeed, much of it is shared. Would it be helpful if my hon. Friend the Minister were to set out the Government’s position on this, because it would enable her to focus on the key issue that she wants to remedy rather than having a general canter through all the issues?

Sandra Gidley (Liberal Democrat, Romsey)

I do not think I was cantering. I appreciate we have limited time left, but this is important. While the Committee may feel it is fully conversant with all the detail because we have all been bombarded with information, nevertheless there are those outside who have not necessarily seen everything. I can assure the Minister that I could be speaking at greater length. [Interruption.] The hon. Member for Eddisbury casts aspersions by suggesting that people will not read reports of our deliberations. Some people do. He has quoted at length what was said in another place and used that for much of his material, so it must have some use.

It might be worth moving on to a summary of the arguments against plain packaging that were made in another place. Some raised concerns that health warnings would be removed. The amendment does not do that. It is clear that the legal warnings that currently stand will continue. There were concerns that information on nicotine and tar levels, required by law, might not be on the packs, yet the amendment does not alter that requirement. There were also concerns that the colour on the packs is required by Government, but I am not sure why that was such a concern. I have a concern about the white packs that have been sent round, because white often looks like a healthy colour. Brown might be a better colour—to match the colour of one’s lungs after smoking such products—but it is worth mentioning that the plain pack will enhance the prominence of the health warnings.

It has been said that plain packaging would not reduce youth smoking. It is fair to say that it is not possible to prove that a change to plain packaging would reduce youth smoking—it would need to be trialled—but it can be demonstrated that branded packaging increases the appeal to young people, and that is what the industry does all the time with its constant renewal, the designer packs and the collector’s item packs, which are all designed to get people buying more packs of cigarettes. I do not think they care whether the cigarettes are smoked as long as the money is handed over.

Another concern is that plain packs constitute an infringement of trademark. According to Sir Richard Buxton:

“The grant of trademark confers the right to stop others using that mark. It does not confer on the trademark owner a right to use that mark in all circumstances and irrespective of public policy considerations.”

Some complain that plain packs are an infringement of the trade-related aspects of intellectual property rights agreement. The industry was advised by BAT's head of corporate affairs, David Bacon:

“Current conventions and treaties offer little protection”.

Others raised concerns that there would be an

“unlawful interference with the human right, established by the European Court of Human Rights, to free speech between the manufacturer and the consumer of a product.”

EU directives already provide for restricting misleading branding and the insertion of health warnings on tobacco packaging. In his formal opinion, the former appeal judge, Sir Richard Buxton, asserted:

“In my view any court would take very seriously the views of health authorities that see plain packaging as an effective and necessary means to a public health end”

and

“I would not expect an English court, or for that matter the Strasbourg Court, to get into arguments with the British Government about the lawfulness of its adoption of advice recommended by the WHO and given to it by its Chief Medical Officer.”

Andrew Turner (Conservative, Isle of Wight)

Will the hon. Lady explain why she would not get involved in such a dispute? Would there not be such a dispute?

Sandra Gidley (Liberal Democrat, Romsey)

There may be a dispute. I am referring to people with far more legal expertise than I. Perhaps the hon. Gentleman would like to write to Sir Richard Buxton about it.

Andrew Turner (Conservative, Isle of Wight)

The hon. Lady is reading from a script. I assume she has something to say that I did not know, but she seems not to know what made me intervene.

Sandra Gidley (Liberal Democrat, Romsey)

I am not quite sure what point the hon. Gentleman is making. Perhaps he would like to clarify, because I am not sure what he expects me to address.

Andrew Turner (Conservative, Isle of Wight)

The hon. Lady will say that there were reasons, but she will not explain them, and I wonder what the reasons are.

Sandra Gidley (Liberal Democrat, Romsey)

We are not getting anywhere with such interventions. I am totally confused by what the hon. Gentleman is trying to extract from me. I think he is trying to make mischief. I am not sure that he is aware of what point he wants to make, so I shall move on, if that is okay with the Committee. I have almost finished.

This is a measure that the tobacco industry fears more than anything, because if we introduce something similar in this country and it is a success, it will be emulated around the world. Even if products are put under the counter, the plain packaging amendment means that there is no pack appeal. All the efforts of the tobacco manufacturers have been in trying to promote smoking—and the packages themselves—as a sexy product. The aim of that pack design has one purpose: to increase sales. That has the knock-on effect of increasing smoking.

People who are trying to give up often say that seeing a pack of their favourite brand can act as a real trigger to that yearning. That may be lessened by a plain packaging amendment where those triggers would not be so strong.

Gillian Merron (Labour, Lincoln)

I am sympathetic to the points that the hon. Lady made. The Government certainly do believe that more needs to be done to develop our understanding of how the packaging of tobacco products influences smoking by both adults who seek to quit and young people, and we will keep tobacco packaging under close review.

In my brief remarks, I should like to focus on the issue of evidence. There is some evidence that branding on cigarette packs may increase brand awareness among young people but it is not conclusive. It is also difficult to separate the impact of large, brightly lit tobacco displays from that of brand packaging. Both can convey, incorrectly, that smoking is normal, popular and attractive. While there is also evidence to suggest that branding on packs may mislead customers about the relative safety of different tobacco products, that too is very limited. No studies have been undertaken to show that plain packaging of tobacco would cut smoking uptake among young people or enable those who want to quit to do so. Given the impact that plain packaging would have on intellectual property rights, we would undoubtedly need strong and convincing evidence of the benefits to health, as well as its workability, before this could be promoted and accepted at an international level—especially as no country in the world has introduced plain packaging.

While we consider it premature at this stage to take these powers, we are committed to developing the evidence that is necessary to see whether this policy could change behaviour and protect young people from the tobacco industry’s marketing and zeal. The Government policy will develop further and the necessary changes will be made if and when appropriate. I hope that, in light of the commitment I have given on the Government’s behalf—to develop the evidence on plain packaging and keep the issue of tobacco packaging under review—the hon. Lady will feel able not to press new clause 10.

Sandra Gidley (Liberal Democrat, Romsey)

That was quite a brief reply. There was not much to get my teeth into. It occurs to me that somebody has to be the first and if we all sit around waiting for somebody else to do it, we will never get anywhere.

The Minister made an interesting point when she said that it is difficult to separate the impact of large, brightly lit displays from the impact of pack design. By implication, the Minister seemed to be admitting that the displays are part of the problem. Obviously, it would be useful if there were an all-party consensus with regard to measures the Government will take. On the Opposition Benches, we have raised concerns about a complete under-the-counter supply of tobacco products. Is there not a case for a compromise that further restricts the way that products can be displayed and addresses some of those concerns, but also addresses the concerns of businesses, such as small newsagents, who fear a rapid overnight change? They do not fear the changes in the longer term; they are quite happy to see the sales die out then, but will find it hard to cope with the sudden change.

Gillian Merron (Labour, Lincoln)

The hon. Lady has raised the point, so perhaps I might give an assurance that it will be a number of years before smaller shops have to comply. Bigger shops will have to comply first, and we are working very closely with the representative organisations to set minds at rest. I also wrote recently to all Members of Parliament with all this information, and am happy to provide further information.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister, but in the short term is there there not a case for putting an end to some of the flashy displays that act as a promotion device in themselves? I shall withdraw the proposed new clause now and reflect on what might be a different approach on Report, but there is an interest in the House in discussing as many ways as possible of tackling this problem. We may disagree on some of the fine detail, but most people are committed to reducing smoking and, ultimately, to saving lives. I beg to ask leave to withdraw the clause.

New Clause 11

Stephen O'Brien (Conservative, Eddisbury)

I beg to move, That the clause be read a Second time.

The new clause proposes to decriminalise pharmaceutical errors, so that single dispensing mistakes are treated in the same way as errors in other medical professions. It is grossly disproportionate that errors committed by pharmacists are automatically deemed criminal offences, when those of doctors and other medical professionals are not.

My reasons for moving this clause are twofold. First, the criminalisation of pharmaceutical errors stems from antiquated legislation that bears little relevance to modern pharmaceutical practices. The Medicines Act 1968 has not been adjusted to accommodate the progress made in pharmaceutical services over the past 40 or so years. Secondly, the legislation fits rather uncomfortably with the Government’s intention to expand the role of the pharmacist to include enhanced services such as smoking cessation clinics. If pharmacists are to take on increased responsibilities that extend their contact with patients, they should be entitled to the same safeguards as the medical profession.

I am sure that the Minister will be well aware of the history and background to all this—the representations to the Royal Pharmaceutical Society, in particular in the case of Elizabeth Lee who, despite doing all the right things in trying to atone for her mistake, none the less ended up with a prison sentence. Most dispensing will take place where humans have to make the final decisions about the counting and handing out of medications, so human error will be a factor.

Equally, the Minister will be aware that early-day motion 1561 has been tabled and has attracted a number of signatures. Therefore, in the context of the positive role of pharmacists, I hope that the Minister will be able to look favourably on this proposed clause. I think the Government are already signalling that they want to move in this direction, and we have long had the Medicines and Healthcare products Regulatory Agency. While the Government are consolidating and reviewing the legislation, this clause—with these positive signs of potential change—gives the Minister an opportunity to take prompt action. I hope that he will therefore support it.

Sandra Gidley (Liberal Democrat, Romsey)

I need to declare an interest, being a pharmacist by profession. This proposed new clause is well meant, and I do not envy the Minister having this issue on his desk. It is useful that so many Members have signed EDM 1561, showing general support for this. Elizabeth Lee now has a suspended sentence; she did not go to jail. She made a single error; the problem was not so much that it was catastrophic but, more fundamentally, that having discovered that she had made an error, she got in touch with the patient and found that they had been taken to hospital.

The court case found that there was absolutely no interrelationship between the dispensing error and the patient’s ultimate death. Nevertheless, due to existing legislation, the judge felt duty-bound to give the woman a suspended sentence. Not to put too fine a point on it, Elizabeth Lee has withdrawn from the pharmaceutical register and will never practise as a pharmacist again. Her career is in ruins.

However, at the heart of the matter is also a patient safety issue. When a mistake is made or nearly made, that mistake can be learned from. Mistakes are often picked up before they do any harm or the patient takes the medicine, and most chemists have some mechanism for reporting such errors. I can recall working for a company that introduced error reporting. Everybody was suspicious at first, but it then became apparent that there were a couple of common errors that everybody was making, and changes were made that had a big impact on reducing the number of mistakes.

The problem with the case of Elizabeth Lee is that it has made every pharmacist frightened of admitting to an error, so we stand to lose such learning experiences. There may be occasions in future when products become mixed up. People in such situations are only human. If the current anomaly is allowed to continue, we will go back a stage, because people will not be open and honest. That is ultimately a bigger danger to the patient than the potential consequences of amending the legislation, despite the concerns in some quarters about doing so.

Mike O'Brien (Labour, North Warwickshire)

There is a problem, but the clause is not the place to resolve it. The Government recognise the concerns that the provision in the Medicines Act 1968 could lead to the criminal prosecution of pharmacists who make a single error in dispensing medicine to a patient, and I know that the issue has caused concerns to pharmacy professional bodies.

There are, however, circumstances in which sanctions should be available when the requirement to sell only medicines that are

“of the nature or quality demanded by the purchaser”

is seriously and knowingly contravened. The sanction may, for example, be used to protect against the sale of medicines to the public that are clearly counterfeit or have been adulterated. We must ensure that the Act provides sufficient enforcement powers and sanctions to deal with such serious risks to public health, so I cannot accept the new clause.

However, some change to the law is necessary to ensure that cases of genuine clinical error, such as dispensing the wrong medicine without a degree of culpability, are dealt with proportionately. A full review of the Medicines Act 1968 is already under way by the Medicines and Healthcare products Regulatory Agency, the Department of Health agency responsible for medicines regulation. The review will include consideration of possible changes to the law to clarify the issue. The MHRA is working closely with the Royal Pharmaceutical Society and other stakeholders to ensure that the law provides the necessary safeguards for the public while being proportionate in dealing with instances of clinical error.

The chief pharmacist appeared before the all-party pharmacy group on 16 June to discuss that very issue, as did the presidents of the Royal Pharmaceutical Society, the Pharmacists’ Defence Association and the National Pharmacy Association. They all agreed that a detailed examination of the legislation was needed, coupled with an exploration with the Crown Prosecution Service whether guidance could be issued in the interim on how to proceed with potential cases. Indeed, the president of the Royal Pharmaceutical Society said that

“we should not rush to replace poor regulation with on-the-hoof regulation”.

The review of the Medicines Act 1968 provides the opportunity to work with the full range of stakeholders affected by the provision and to create a legislative framework that is comprehensive, comprehensible and fit for current purpose.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the Minister for making it absolutely clear that a change in the law is needed. I take seriously the view that moving from poor legislation to on-the-hoof legislation could carry more risk. I am sure that the fact that he has made that commitment will be of some comfort to pharmaceutical professionals as well as those who represent them and those who signed early-day motion 1561. I would simply urge the Minister to proceed with speed in the area. I beg to ask leave to withdraw the clause.

New Clause 12

Mike Penning (Conservative, Hemel Hempstead)

I beg to move, That the clause be read a Second time.

It has been a pleasure to be in Committee with you, Mr. Key, since Mr. Speaker left. New clause 12 is self-explanatory. It is a probing amendment that we do not intend to press to a vote. It seeks to push the Government to have a smoking cessation strategy. The new Minister said they will come forward with that later in the year, and nicotine replacement is a very important part of that. A lot of nicotine replacement is on prescription now, and I want to ensure that much of that is generic, so that the taxpayer gets value for money. I also want manufacturers to address nicotine addiction with the strength of the replacement. All too often I hear of people on nicotine replacement having, it seems, to chew gum all day to get anywhere near the level of nicotine addiction that they have from their smoking habit.

Sandra Gidley (Liberal Democrat, Romsey)

I am slightly confused by the amendment. I believe that a lot of nicotine replacement therapy is already available. There are a number smoking cessation schemes around the country that were introduced by the Government.

Mike Penning (Conservative, Hemel Hempstead)

Yes, there are a number but they are scattered—a scattergun approach is probably the best way to describe it. Certain parts of the country get a lot of help and others get very little. There needs to be national strategy. There also needs to be a self-help element. I was dismayed recently when I spoke to one of the large retailers. It wanted to put nicotine replacement items up next to cigarettes in case people went in to buy cigarettes but—on impulse—thought, “I should really give up.” The retailer was precluded from doing that, and the Minister should address such matters.

Nicotine replacement is an expensive—but a key—part of smoking cessation. We should encourage as many people as possible to give up smoking. I want the Minister to bring together the key stakeholders before 21 July 2009, as the new clause states. If that date is not suitable, will she give me an idea of when that might happen?

Gillian Merron (Labour, Lincoln)

It has been a pleasure to serve under your chairmanship, Mr. Key. I appreciate that the hon. Member for Hemel Hempstead has made it clear that this is a probing new clause. I can confirm that the Government already have a code of practice in place for consultation. They already provide guidance on how to conduct consultations on policies, so I am glad the hon. Gentleman has indicated that the amendment is not needed.

It is true that much progress has been made, but many respondents to our consultation indicated that they want to see nicotine replacement therapy made more easily and cheaply available. I can confirm, therefore, that we are considering our future approach to the matter and how we can support people to quit smoking, more broadly, as part of our tobacco control strategy. We are consulting with experts on smoking cessation about the range of policies needed, and that will include nicotine replacement therapy. I hope, with that reassurance, the hon. Gentleman will confirm that he will not press new clause 12.

Mike Penning (Conservative, Hemel Hempstead)

I beg to ask leave to withdraw the clause.

Mike O'Brien (Labour, North Warwickshire)

I thank you, Mr. Key, and Mr. O’Hara, for your expert chairmanship of the Committee. I also thank our phantom Chair, Mr. Bercow, who disappeared off to higher and greater things. It has been a good humoured and constructive Committee and I thank the hon. Members for Eddisbury, for Hemel Hempstead, and for Romsey. May I also particularly thank my hon. Friend the Member for Lincoln who has so ably taken through a number of clauses—especially on tobacco? I also thank my Parliamentary Private Secretary, my hon. Friend the Member for Coventry, South and the officials. On a number of occasions, as we began to speed through the proceedings, I was getting to areas that I had not fully read before, shall we say, and I was able quickly to grasp the essential arguments and deal with them, I hope competently, due to the extremely competent and good briefing that I got. It was clear and concise, and I thank the officials concerned.

I thank the Clerk of the Committee, Mr. Stanton, and our Whip, who has kept everyone, at least on the Government Benches, in order, and also attempted to encourage Opposition Members to stay in order on occasion. I am sure that the Conservative Whip deserves congratulation on the speed of delivery too, on occasion. I also thank Hansard Reporters and the Attendants. We have a Bill in good state, and I am grateful to members of the Committee for delivering it.

Stephen O'Brien (Conservative, Eddisbury)

I will be brief in reinforcing the thanks that the Minister has given. I also thank him, because he had to pick up the Bill and master it at great speed. He sought to answer our questions with courtesy and clarity, and I think we have had a constructive discussion.

I thank all the outside bodies that have helped to inform our deliberations, and in particular I pay tribute to their energy and attempts. I wish to place on the record the tremendous support and work that I have had from my researchers, Mr. Sam Barker and Ms Jo Rossiter. I know that my hon. Friend the Member for Hemel Hempstead has had tremendous support from his researcher Mr. Paul Harrison.

I think all the members of the Committee need to be thanked for their dedication to the Bill, not least my hon. Friend the Member for Hemel Hempstead, who assisted me in leading on the Bill for the official Opposition, our Whip, my hon. Friend the hon. Member for Reading, East, my hon. Friend the Member for Orpington for his experience and my hon. Friend the Member for Isle of Wight for his insights.

We thank the Clerk, Mr. Stanton, as well as the Official Reporter, who I know has had the most monumental struggle sorting out the O’Briens. I hope that she might be able to take the message back that while the House style means that once the Christian name and the surname have been put together, it should just be plain “Mr. O’Brien”, it might be helpful in future that reference is to either “Michael” or “Stephen”, depending on who is speaking.

I thank the Doorkeepers and the Badge Messengers and above all, I thank you, Mr. Key, and your predecessor last week, Mr. O’Hara. We realise now that we have had the benefit of you, that it was perhaps not unhelpful that there was a Speaker’s election during the course of our Committee.

Sandra Gidley (Liberal Democrat, Romsey)

Very briefly, I would like to repeat all those thanks. Without going through them all again, may I just say “ditto”?