Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Welfare Reform Bill
(13 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Freud
“(2) In section 190 of that Act (parliamentary control of orders and regulations), in subsection (1), before paragraph (za) insert—
“(zza) an order under section 115A(3B);”.”
Baroness Drake
Baroness Drake
My Lords, I shall also speak to Amendment 104AA. In Clause 113, we see the Government’s intention to introduce a civil penalty for negligence in providing incorrect statements for all categories of universal credit claimants. The penalty will also apply to the failure to disclose information. This is a probing amendment to understand why and how these penalty powers will be applied.
The civil penalty will be awarded where an error is not being dealt with through fraud action. The power to award will not be restricted to the Secretary of State but given to any authority that administers housing or council tax benefits, so it is quite a significant power.
Although there is an existing tax credit civil penalty regime, such a principle will now be extended to all universal credit claimant communities, many of whom are very vulnerable, such as those with disabilities or illness. What exactly is the offence and how will it impact on the population of claimants?
In response to a question from my noble friend Lady Hollis and me, the department has kindly advised that “negligence” should be construed in accordance with the everyday meaning of the word: that is, not exercising the care that the circumstances demand—in this context, being careless about, or paying insufficient attention to, the accuracy of any statement or information given in a benefit claim. Not exercising care and not paying sufficient attention are not actions that can be assessed for negligence without having regard to the capacity and the capability of the individual when providing that information.
More than 4.2 million adults lack the basic, day-to-day competences of functional literacy, 6.8 million adults lack functional numeracy, and I understand that it is estimated that two-thirds of claimants on income-related JSA have the functional literacy of an 11 year-old. There will therefore clearly be a higher concentration of adults with limited numeracy and literacy skills in the claimant population. As I have said, many claimants will also be vulnerable for other reasons—disability, illness or whatever. All these characteristics add up to a greater propensity for errors to occur and mean that the most vulnerable will be disproportionately hit by the civil penalty.
However, my arguments do not stop there. The Government are assuming that 80 per cent of claimants for universal credit will fill in their application forms online, but evidence from charities suggests that a much lower number will be able to do so without error; a more realistic figure may well be 40 per cent. What plans will the department put in place in the event that it becomes clear that the percentage of applicants who can fill in their forms online is significantly below that forecast?
Universal credit will also bring a new set of rules and people will not always understand what is expected of them. People have complicated lives, and even if someone is sitting next to them they may still get it wrong. Even when individuals want to get it right but are not competent, cuts to the funding for legal advice and the winding down of the local authority-based benefit services will mean that those who would otherwise have helped the claimant to fill in the form will not be there. Claimants may want help from face-to-face contact at Jobcentre Plus, but many centres are being closed and they are likely to be in urban areas and so they are remote from rural claimants. Yes, call centre staff will be available, but they may not be sufficiently experienced in the new rules, certainly in the early years of universal credit, and their guidance may lead to errors in the filling in of the form.
We have layer upon layer of capacity, capability and complexity considerations that, once added together, reveal why non-fraudulent errors will occur in statements and information provided by vulnerable claimants. This indicates a systemic series of reasons for errors that will not be addressed by exhorting the most vulnerable to be more personally responsible and hitting them with civil penalties. The most vulnerable claimants are often scared of filling in their forms, but now we have the potential to make them petrified. One can imagine their anxiety at receiving some heavy-handed departmental letter telling them that they are about to be fined. Their ability to know that it is a civil penalty rather than a criminal one may be a subtlety that misses them when they receive such a letter.
Let me ask the Minister three questions. First, can he give an assurance that civil penalties will not be introduced before transparent criteria are set out to ensure that claimants are not penalised for making innocent errors and failing to understand the need to report changes within a required timetable, and that definitions of “reasonable excuse” will take account of a claimant’s individual circumstances? Secondly, how will decisions about when to issue a civil penalty be made, and how and when will good cause be considered? Thirdly, how does the Minister expect to ensure that the most vulnerable and the most prone to make errors will not be unfairly penalised by the civil penalty—not the exhortation that the most vulnerable will not be hit but how he expects to ensure that that exhortation is met?
The reason given for the extension of the civil penalty power is to reduce claimant error and increase personal responsibility. The savings from introducing the civil penalty power will be £19 million over the three years to 2014-15, but the application of that power could have a considerable impact on some very vulnerable people. I understand that the Government’s estimate of the volume of civil penalties is just under 600,000 a year, which seems very high given that, first, universal credit is intended to be a simpler, more transparent system; secondly, that the number of penalties for tax credit claimants last year was, I understand, 1,221; and, thirdly, that there were 7,249 administrative penalties for the benefits service.
That leaves me concerned as to how these civil penalty powers will be used in practice, because in the impact assessment, fraudulent and criminal activity is lumped together with non-fraudulent and non-culpable—or potentially non-culpable—error. However, they are clearly not the same thing. The same community of people is not being addressed, but they are being considered in an almost holistic way in the impact assessment.
It worries me that the department appears to be applying a common mindset to both, which in part is my reason for tabling Amendment 104AA, which seeks to prevent the Secretary of State allowing any targets to be set that would prove an incentive to increase both the number and the value of civil penalties issued. The stated purpose of these civil penalties is to improve claimant personal responsibility. However, we know over time from our own common sense and experience that organisational cultures can result in such penalty powers being abused for reasons other than their original purpose. The punitive intention increases, or they become an opportunity to raise money.
In a world where there is increasing competition for access to tax revenues, civil penalty powers will be vulnerable to abuse. They could end up being deployed more aggressively to improve revenues or to be punitive. One can think of examples of where ordinary people think that this may have happened. For example, are the approaches to catching people speeding and the margin of tolerance over the speed limit determined by a desire to incentivise good behaviour and avoid bad, or has it become a means of raising revenue? Did some local authorities deploy surveillance techniques against ordinary citizens for reasons never intended by legislation? Whatever the validity of people’s thoughts on these matters, they are an indication of concerns as to how civil penalty powers can be deployed in a way that was never intended.
I would prefer the civil penalty not to be there, but certainly I want to ensure that the powers to impose civil penalties set out in Clause 113 of the Bill are never abused. The recipients of that abuse are most likely to be vulnerable people who easily make mistakes, and who could come to fear the department’s staff as a sort of form of police force that is free to hand out fixed civil penalties at will. Any targets set would almost certainly be set by reference to national standards, and this amendment seeks to prevent the Secretary of State from ever allowing such standards to be set. The population does not conform to national standards. There are differences in localities, in regions, in demographics, in educational attainment, language skills, level of employment, labour market characteristics, which all have an impact on the volume of forms likely to be completed incorrectly. There will be a concentration of impact from these civil penalties if targets are applied.
In summary, I am a strong believer in public service and support, but I have a great antipathy to the deployment of bureaucratic power that frightens or abuses people. I have real concerns about the deployment of this civil penalty and I look forward to the Minister’s response to my questions.
Lord Skelmersdale
My Lords, I am glad that the noble Baroness, Lady Drake, has called attention to Clause 113, because it is easy enough for some people not to understand the form that they are filling in, even sometimes in the presence of a member of the Minister’s department in the jobcentre. My real problem with this clause is that it talks about negligence. If you fill in a form in a slapdash manner, that is negligent. I would far prefer something like “knowingly”: in other words, designing to commit some sort of fraud. That would be a much happier arrangement.
Baroness Hollis of Heigham
I support my noble friend’s amendment. Following on from what the noble Lord, Lord Skelmersdale, said, I would say that the test of fraud is normally—I think I saw a former Lord Chancellor who would know much better than I—associated with intent and ignorance of the law and is not a defence, but I think in this case it is because we are dealing with the interlocking of very vulnerable people and a new and very different system for people to understand.
There are three or four matters on which if I were asked now whether people needed to declare things, I could not guide them, and I like to think I have some nodding acquaintance with this Bill. For example, a lone parent has a boyfriend who works away. He stays with her overnight one or twice over the weekend. As a result, is she no longer a lone parent? Clearly it will not depend on their sleeping arrangements but on what contribution he makes to their financial arrangements. On a weekend basis, would that be sufficiently substantial to make her no longer a lone parent but part of a couple and therefore falsely declaring if she claims to be a lone parent? I am not clear what would happen in that situation under the Bill. Perfectly reasonably she might regard the fact that as she is getting universal credit she is not a lone parent and he is somebody who comes in as a boyfriend but not a partner.
With housing benefit, you could have a family with a student son who is living at home, going to the local university and working part-time. Should he be declared for housing benefit as a potential contributor to the rent so that non-dependent adult deductions come into play? I do not know. I think it would be quite difficult for that couple to assess.
Let me give another example that we discussed at considerable length and about which the Minister was rightly sympathetic—kinship carers. Conventionally, kinship carers are entitled to claim for child credit and so on if they have the equivalent of the child benefit book, which normally takes about eight weeks to come across. In future, given that child benefit will not necessarily be a separate benefit entitlement, if there is a rotating relationship in which the child goes back to its birth parents for a few weeks and then, because the father or the mother may be an addict of some degree, goes back to the grandparents, at what point and for how long a period of continuous care are the kinship carers entitled to claim the child elements in universal credit? I do not know.
In those three cases—and I could elaborate another six on disability benefits that are becoming clear to us—I would not be able to advise somebody on what they should declare on their forms as being relevant for the consideration of UC. It would be natural for them in those quite complicated situations not to declare things that appear to work against them. They would not be doing it with an intent to deceive. They may think it is a perfectly proper statement of their position as they see it, yet under this clause they could be caught for negligence and fined. That is completely unreasonable.
The one piece of advice I would give the Minister is that whatever he does, whether he claims that this is needed as a reserve power or not, he should not touch it for at least three years until after the Bill has come into practical effect because of the bedding-down issues that it will have. The Minister has to make only one mistake, such as his department suing somebody for penalties for negligence when the department was wrong—and there will inevitably be departmental error; there always is when you introduce new systems—and the whole of the good will behind this Bill will disappear overnight.
Baroness Lister of Burtersett
My Lords, my noble friend gives some very good examples of how easy it might be to make mistakes, particularly when the universal credit is quite low. I remind noble Lords that on 24 October the noble Lord, Lord Boswell, told us how easy it is to make mistakes. When he applied for his retirement pension, he got it wrong. Was he being negligent? No. It was an example of how easy it is to fill in a form wrongly. It is not necessarily negligence.
Apart from that little reminder of how any noble Lord could easily make a mistake, I also wanted to pick up a point made by my noble friend Lady Drake about the expectation that 80 per cent of claimants will be claiming online. Recently a piece of research, Increasing Digital Channel Use Amongst Digitally Excluded Jobcentre Plus Claimants, found that one group of those claimants were what the authors call the “uninterested”. The researchers said that this group will,
“require persuasion or compulsion before they will use digital services, possibly with the threat of a benefit sanction for non-use”.
I would be very grateful if the Minister could assure the Committee that there is absolutely no intention to sanction people for not using online procedures. Some people have a mental block against using computers and we do not want yet another sanction in the system. I know that it was researchers who said this, and not the department, but if he could give us that assurance now, that would be very helpful.
Lord Touhig
My Lords, my noble friend Lady Drake has made some very powerful points this afternoon, which the Government need to take on board or we will get into a mess when this is finally introduced. They should be indebted, too, to the noble Lord, Lord Skelmersdale. His point is that there is an implication that the person who makes this sort of mistake has been deliberately negligent. That would mark people out as trying to defraud the system. It puts them in the wrong to start with, when these things can happen by accident.
Noble Lords will forgive me if I remind them of a point I made in one of our earlier debates. When I sat in the other place, I had a constituent who came to see me because she had been overpaid a certain benefit, and the department was pursuing her strongly for repayment. When we got the papers, we discovered what had happened. There were some boxes she had to tick. One of the boxes asked, “Have you received income support?”. She ticked “Yes”. However, she had stopped receiving it about six months before, and so beneath her tick, she wrote, “But this stopped”, and she wrote in the date on which it stopped. When we got to the bottom of this we found that when the form was sent in to the department, its computer could not scan in anything that was not in the box, so it continued to overpay her. She was in a terrible state. A large amount of money was involved, and there was a huge problem as a result. It will go wrong.
Noble Lords will forgive me if I repeat something that I mentioned in the Chamber a little while ago. In the case of universal credit, a lot will depend on a new IT system. Every major IT system that the Government have introduced in recent years has gone wrong. I know, because I sat on the Public Accounts Committee in the other place for a number of years and we had to look at some of these issues as a result of inquiries to the National Audit Office.
My noble friend Lady Drake also made the point, as others have, about people filling in these forms online. Thirty per cent of the poorest families in this country have no access to a computer. It has been possible to claim jobseeker’s allowance online for 20 months. The take-up is 17 per cent. The idea that we are going to get to 80 per cent of people claiming benefits online will cause a huge problem for the system.
My noble friend Lady Hollis has just made the point that a lot of the good things that this Bill will seek to introduce will be damaged because of the kind of approach that this particular clause takes. The Government should really think again and take note of the points made by the noble Baroness, Lady Drake.
Baroness Meacher
My Lords, I, too, support the excellent contribution of the noble Baroness, Lady Drake. I am sure that we all understand that if someone really has filled in a form negligently and as a result has received extra pay, that needs to be dealt with. My problem is how on earth you word such a clause. There are people who clearly are incapacitated and so cannot work things out—they cannot read adequately or have had to have some help from somebody else who does not quite understand their situation. You can imagine all sorts of situations in which things would go wrong, certainly when it comes to people with severe learning difficulties, major mental health problems and so on. Unless the official dealing with these things really understands the individual and how they might have come to make these errors, it seems to me that the most appalling injustices will result, which I am sure the Minister would not be happy about at all. Will he think about the wording of Clause 113 and try to generate wording that distinguishes between people who have in some way been negligent or perhaps on the edge of fraud but you cannot quite prove it? One can imagine a lot of people who might fall within that clause but who perhaps belong in a clause that relates to fraud. They are quite different from a large number of people who are struggling, whether with literacy or other problems. I am sure the Minister would wish to make that distinction clear and fair. It was helpful to have this amendment, and I look forward to the Minister’s reply.
Baroness Turner of Camden
My Lords, I do not want to add much to what has been so well said already in support of the amendment. On the other hand, we have been talking about other Bills while discussing this one, and I note that some of the information that we have from, say, Citizens Advice, indicates that it gets a lot of applications from individuals who have no idea of their entitlement and need assistance with that. If people do not know what they are entitled to, it is easy for them to make mistakes in claiming. That may very well have happened in the cases that have been cited this afternoon.
Moreover, it does not say in the Bill exactly what the prescribed amount of penalty will be, so apparently in addition to giving back the overpayment a penalty would be involved. That would mean that somebody who is already very vulnerable and who has no money could be in difficulty on paying both the penalty and the overpayment. I suggest that the Minister looks at this part of the Bill as it could do with a bit of rewriting in line with what a number of Peers have had to say this afternoon.
Lord McKenzie of Luton
My Lords, my noble friend Lady Drake has opened an important probe on these provisions, and other noble Lords have emphasised some of the practical difficulties that they create. I hope that the Government will reflect on the intent, the wording, the timing and some of the practicalities that these provisions throw up.
I want to add to the questions in a modest way. The “appropriate authority” that can levy the penalties includes those that will administer council tax benefits. We know that in future several hundred authorities will be levying council tax benefits unless we can get some amendments to the Bill. There is a real issue of consistency and the systems themselves possibly being markedly different and administered in a different way. Precisely how is it proposed that consistency in council tax benefit will be achieved? What sort of value to engagement will there be with all those authorities? Indeed, is there capacity within the DWP to undertake that effectively?
I have two more questions. The briefing suggested that the penalty levy would be £50. What was that figure benchmarked against? Can I also have clarification of “due process” and whether rights of appeal are attached to this? It would be helpful to hear from the Minister. Subject to that, and to the many pertinent questions asked by my noble friends, I shall not raise further points. We have not heard the Minister’s amendments yet, so subject to that, those are my questions.
Lord Freud
My Lords, Amendments 104A and 104B, tabled in my name, are similar in intention to an earlier suggested amendment to Clause 102. These two amendments will ensure that where a claimant’s benefit is paid to a third party, usually a landlord, recovery of any civil penalty, along with recovery of the associated benefit overpayment, may be made by making appropriate deductions from that benefit payment. Currently, there is a slight difference in the wording used by this clause and Clause 102 when specifying that amounts are recoverable. This was unintentional.
Amendments 104A and 104B remove that difference and ensure a consistent read across. This will mean that, in the limited circumstances in which the third party benefit payment is the only one from which we can make a recovery, we can ensure that whenever a civil penalty is imposed, that penalty and the benefit overpayment may both still be recovered by deduction from that benefit.
In every civil penalty case there will always be an overpayment of benefit and we intend that the civil penalty will be added to the overpayment and recovered in the same way. Being unable to recover the civil penalty in the same way as the overpayment would mean that some claimants could evade the consequences of their negligence or failures to provide accurate and timely information and unnecessarily limit the methods of recovery available for civil penalties.
We want to make it clear that the civil penalty is always recoverable from the person at fault, even if in practice the claimant’s benefit is being paid to a third party. The process for recovery of the civil penalty needs to fit appropriately with debt recovery processes. Aligning the wording in new Sections 115C and 115D with that used in Clause 102 helps us to do that.
Amendments 104AA and 104ZA seek to prohibit the setting of targets for the civil penalty and limit our ability to impose a civil penalty to cases in which there has been a failure to provide information. The noble Baroness, Lady Drake, and my noble friend Lord Skelmersdale asked about negligence. We consider that the requirement of negligence in new Section 115C already implies that there is no reasonable excuse for the failure to take care of their award or claim. However, new Section 115C(1)(b) ensures that if reasonable steps to recover the error have been taken, the penalty will not apply. I certainly understand the possible ramifications if targets were attached to a penalty such as this. It is for exactly those types of reasons that we are not attaching penalties.
Perhaps I may update the noble Baroness, Lady Drake, on the figures in the impact assessment and the number of penalties. Last week, on 22 November, a revised impact assessment was issued that reflects updated estimates relating to the new civil penalty. We are assuming that the changes based on assumed overpayments of above £65, rather than the overpayment of £15, which was part of the earlier working assumption, has led to a substantial revision, and the number of penalties that we will consider moves down to 400,000 a year. We expect to make only half of those, 200,000, which is a substantial decrease on the figures mentioned by the noble Baroness.
Baroness Hollis of Heigham
I warn the Minister that that is one of the biggest elephant traps he is setting himself in the entire Bill.
Lord Freud
My Lords, I have to make clear that we are taking powers to do this. We do not have to use them.
Lord Freud
Let me make this absolutely clear. There were concerns that we would have a kind of speed camera situation here. This is about behaviours and making sure that people pay real attention when they are filling in their forms. The actual figures—
The Countess of Mar
The noble Lord referred to new Section 115C(1)(b), which states:
“the person fails to take reasonable steps to correct the error”.
Is this after the person has been told that there is an error, or must he find out that he has made an error in order to correct it?
Lord Freud
“Negligence” and “reasonable steps” are legally bound words. There is a huge case law about what they imply. One needs not to be negligent when filling in an application and to take reasonable steps to correct mistakes. If you do not know that you have made a mistake, you cannot expect to be able to correct it. That would not be a reasonable step. However, there is a legal framework around these words. I go back to the point I was trying to make about the incentives on the system as opposed to on the individual. On the penalty rates that I gave noble Lords, we expect that the amount collected in a year, for example 2014-15, will be roughly £9 million and the cost of delivering that system of civil penalties the same figure, £9 million, so there is no incentive in the structure to have unnecessary civil penalties. That is not the point. The point is to—
Lord McKenzie of Luton
Will the noble Lord help me? Do the penalties accrue to the department or to the consolidated fund?
Lord Freud
That is as I would expect from the noble Lord. It is such a wicked question that I am baffled as to the answer. I think everyone is baffled. It is a magnificent question. It has bowled me out on my middle stump. I will have to find out the answer. I will not even hypothesise about where the different funds go. The right analogy for this is when you go to the dentist, having made an appointment, and you fail to attend. The dentist will charge you an amount in many cases in order to discourage that behaviour. When you are giving out a free good, it is very easy for the recipient to abuse it. You counterbalance that by making that somewhat expensive. When you go beyond a free good and you are giving out a positive good, that is even more the case.
Baroness Hollis of Heigham
My Lords, the point is that, on any reasonable analogy, the simpler it is for the individual to make an appropriate response such as telling the dentist they cannot come, the more reasonable it is to have a penalty if they fail to do so. The more complicated quantum of knowledge that they are expected to have about their entitlement, and therefore the easier it is to make a mistake or to have a misunderstanding, the more unreasonable it is to have a penalty. Would the noble Lord care to share with us an analogy in civil life as complex as knowledge of this Bill is for the complainant or applicant, rather than the dentist analogy?
Lord Freud
My Lords, I hope that it will be as simple as the dentist analogy. The whole point of introducing universal credit is that we get something as simple as saying yes or no with regard to your situation. The existing position is much more complicated than that. As some noble Lords will have seen when I did a presentation on the universal credit, we are trying to boil it down to simplicity. Where it is complicated, that is prima facie evidence that there is no negligence. The noble Baroness’s suggestion that we might take time to check out how the system is bedding in is not a bad one.
Lord Freud
Let us not bargain. It is not a bad suggestion. One of the things we want to do—
Baroness Meacher
The Minister said that if something is complex, you will not have negligence. Does he accept that what is complicated for one person might be not complicated for another? Certainly what is perfectly straightforward for somebody of average intelligence, for example, might be incredibly complex and difficult to follow for somebody with an IQ well below average. Is there any intention to check that sort of thing out? I know there is a later amendment on this, but it is relevant to this discussion.
Lord Freud
It is very relevant. One of the things that we are going to be monitoring as we look at the system is clusters of mistakes because, by definition, the system is not working properly where we are in that position. We will need to work this system in carefully. The noble Baroness, Lady Hollis, who is right on a lot of things, gives a warning, which is right. We cannot use this in an arbitrary way. We must have something, just as the NHS, HMRC and the train companies—I suppose everyone has boilingly paid the extra train ticket surcharge when they were on the wrong train—have systems to encourage people to comply with particular rules. It is particularly necessary where you have a system that is not even a free good. You are giving money out, so you have a positive incentive to shade a few inaccuracies without being fraudulent. We just want to keep people straight.
Baroness Hollis of Heigham
I thought it was very revealing when the Minister said the answers are yes/no. Most of these questions are binary—yes/no—but all the difficult ones, the ones people are going to appeal on, are not yes/no; they are shades of grey. When is a lone parent no longer a lone parent? Does a boyfriend stay one night, two nights or three nights? Does he contribute £20 for his weekend food or £50? Is he on the tenancy agreement? In that case, there is no question. That is a shade. It is a judgment call, not a negligence call. It is the same with the student son. It probably would not occur to parents in social housing that their son, who is at the local university and doing bar work at night, could be in the non-dependent adult deduction range. Why should they think so? It is a line, but they do not know where those lines are drawn.
The Minister is right that if somebody deliberately says, “I am not working and I want JSA”, but is actually earning £200 or £300 on the side in the building trade, that is a yes/no, but most of the issues that go to appeal—most of the difficult issues—are shades of grey, and many of us around this table would not be able to advise somebody. I really do not see how the client could possibly judge whether it was appropriate to tell the department or not.
Lord Freud
I do not think that we disagree on this. It would not be reasonable where there is clearly a lot of grey in the assessment, and I do not think a court in the land would allow us to say that someone was being negligent. That is not what negligence means. Negligence means not caring at all and just slamming down the wrong information or having information that you did not bother to put down. That is negligence. Getting something wrong on shades or “It didn’t occur to me” are not negligence and would not be construed as negligence in any court in the land. A lot of this is concern about things that the language does not support.
Lord Touhig
In my experience over years in the other place of dealing with cases in which people had been overpaid and the department sought to reclaim money, the department always took the line that the claimant was at fault and had been negligent. If we do not get away from that, we are storing up a huge problem. The line of the department has been that it is the fault of the claimant who has deliberately got this wrong, is in the wrong and therefore must repay some benefit they have had.
Lord Freud
I do not think that that is what is happening with overpayments, which are a separate category from these civil penalties. On overpayments, the department has taken the view that if people have received money they were not entitled to, that money should come back to the department, and there is no fault or blame attached in that requirement, so it is quite different from the civil penalty.
Baroness Lister of Burtersett
Is that also the case with any other penalty, not just the civil penalty? Is it a benefits sanction?
Lord Freud
We absolutely will not do that. The noble Baroness drew a comparison with current levels of JSA usage. The online facility that we offer claimants is so markedly inferior that people would not want to use it. We need to make sure that people will want to use the online provision, and we are taking a lot of active steps to look at how to encourage and help people to use it. Indeed, this is one of the discussions that I am currently having with the various groups and charities that are trying to get the most disadvantaged in society online, because that is one way in which they become a full part of the economic life of the country, and indeed of the whole life of the country. They and I see that this could be an immensely powerful force for getting that inclusion. As I said, we will work very hard to encourage people to use it. One does not encourage people to do something that could be life-transforming for them through some of the things which the noble Baroness suggests I might be doing.
The aim of the civil penalty is to reinforce the importance to claimants of providing accurate information that we require in order to administer their claims and awards in advising us when they have a change of circumstance. It is a different issue when someone does something knowingly. That is fraudulent, and we will target that behaviour by looking at tougher punishments than the one for missing a dental appointment—I had better not talk about my teeth. We want claimants to take more responsibility for overpayments and to encourage a positive change in claimants’ future behaviour so that they take proper care of their benefit claims and awards.
The noble Baroness, Lady Drake, made an important point about mental health. We will take that into account. Indeed, that is why we require the claimant to have acted negligently and to have no reasonable excuse. The department must satisfy itself that the claimant has failed to take appropriate care. Each case will be considered individually by the decision-maker, and the penalty will not be imposed if a claimant’s state of health or mental health is considered relevant to the error that has been made.
Amendment 147ZA would mean that a civil penalty could be imposed only on those who failed to notify us of changes of circumstances and the failure resulted in an overpayment, while a claimant who incurred an overpayment by virtue of their negligence and who failed to take reasonable steps to correct the error would evade a penalty. We already help claimants in Jobcentre Plus and, as I have said, we will reinforce that. We believe that everyone should take responsibility for the accuracy of the information they provide in order to receive a benefit, whether that be at the start of their claim or during the life of their claim when there has been a change of circumstances.
As for the question asked by the noble Baroness, Lady Drake, on legal aid, information on benefits and the conditions of entitlement for them is readily available to the general public. If claimants remain uncertain of which benefit is most applicable to them or have a question about their benefit entitlement, they can and should seek further advice from the department. New Sections 115C and 115D will therefore act together to remind claimants that it is just as important that they correctly report their circumstances at the start of the claim as well as report changes that occur within the life of a claim.
I will aim to answer the remaining three questions, having been bowled out on the fourth. On the ability of local authorities to impose fines, we consulted local authorities on the detail of the initiatives in the strategy and on our plans to implement them. Local authorities have provided input to the various projects that we have set up to implement the strategy. We have local authority staff collocated with the DWP and working on the strategy. That includes the sanctions and penalties project, which is doing the work on civil penalties. We will support local authorities in their work to implement the new penalty, which will include providing clear instruction and guidance on how to operate the new scheme. On the £50—
Baroness Hollis of Heigham
Perhaps that would not work. For example, in two side-by-side authorities, a family with two siblings lives with one sibling in each borough. One local authority may decide to exempt in such cases. They have to make 10 per cent cuts and are required to exempt pensioners, which would make 30 per cent cuts. One local authority decides to exempt disabled people all together, so they would have nil. The other does not and the matter is worked out on income. In that situation, how will two disabled siblings who live in two side-by-side boroughs work that out? How will the local authority work out what they should declare, what they should not and what the appropriate penalty could be? It is a complete minefield.
Lord Freud
Clearly, there are always difficult and special cases. I suspect that an old lady would not be eliminated entirely. The answer is that there is support for people with particularly tricky circumstances. We will work with local authorities that will be collocated in many cases, especially with the single fraud operation being set up. The shades of grey, which will start to rule out negligence, will be very evident in most of those cases.
In justification of the £50, that sum was chosen because we believe that this is a sufficient amount that will act as a punishment and make claimants more personally responsible for the overpayments they incur and encourage a positive change in their future behaviour. We have also set a significantly lower amount than the harsher punishments available for fraud offences, which reflects the fact that it is directed at the failure to take proper care of a benefit award and is not about fraudulent behaviour. Under the appeal process, the claimant will be able to appeal against the overpayments decisions, the civil penalty or both.
For those reasons, I urge noble Lords to reject Amendments 104AA and 104ZA.
Baroness Drake
I thank the Minister. Perhaps I may address some of the points that he raised because I still feel deeply concerned. I probably have slightly more concerns now than I did previously. I do not say that provocatively and I will try to say why. First, it should be made clear that this is a civil penalty that does not deal with fraud issues. There are separate clauses for that. The stated purpose of this civil penalty is to improve people’s behaviour in the accuracy of their form-filling. The concept of introducing the civil penalty worries me, particularly for a community of people with a greater concentration of the vulnerable and lower levels of numeracy and literacy, and when we are taking this means of a civil penalty to address behaviours, some of which are systemic and cannot be dealt with simply by handing out civil penalties here, there and everywhere—notwithstanding that the Minister said that that is not the intention.
The Minister said that Clause 113 goes on to say that there will be no penalty if you take reasonable steps to correct the error, but the point is that someone cannot take reasonable steps to correct an error if he does not know that he has made it. That is the problem. Someone could face the civil penalty before having the chance to put it right because he does not know that he has done something wrong. A concentration of people will be increasingly in the category of not knowing that they have made the error when filling out the form.
The Minister also said that I should not be worried about how the powers will be deployed, but he gave me one of the reasons why I am concerned. Quite rightly, and I do not disagree with him, he said that a civil penalty always comes at the same time as recovering an overpayment. If you issue a civil penalty, you have confirmed that there is an error, so it must follow that there is the recovery of an overpayment. If ever an incentive were articulated, that is it. You do not have to exercise discretion on overpayments; the awarding of a simple penalty puts you straight into going for that overpayment. No other considerations come into play. You make the easier decision to award a civil penalty because you do not then have to make the more complex decision about how to apply a discretion to an overpayment.
Lord Freud
My Lords, let me make this absolutely clear. It is the other way round. You can charge a civil penalty only when there has been an overpayment and you would not necessarily charge a civil penalty when there was an overpayment unless you associated that overpayment with negligence.
Baroness Drake
That is my point. If civil penalties and overpayments are inextricably linked, you would not award a civil penalty unless there had been an overpayment. You can almost produce an incentive to put something into the category of an error attracting a civil penalty because it makes it easier to justify chasing the overpayment.
Lord Freud
My Lords, I must make this absolutely clear—it is my third go at this. An overpayment happens when someone is paid something they should not have been paid. A civil penalty will be charged only when there is both negligence and an overpayment. I forget the logical post hoc, or whatever. We need to get it round the right way.
The Countess of Mar
Let me get this absolutely clear. The department finds that there has been an error. Does it then tell the claimant that there has been an error, who says, “Oh dear, I’ll put it right”, and that is it, or does the department say straightaway that it is negligence? Is there a step in the middle when it goes to the claimant?
Lord Freud
My Lords, in practice it will depend very much on the circumstances. Clearly, if one had a blanket rule it would be possible every time an error was uncovered to say, “Oh, just a mistake, I’ll put it right”, or, “It was negligence”. There will have to be occasions when it is pretty clear that there was genuine negligence. That will be testable and appealable on a set of definitions around what is negligent.
Baroness Drake
I am still not persuaded. I will stay with my point; I still remain concerned about targets. The Minister says that he has turned his back on targets. I accept that, but his assurance does not bind future Secretaries of State, who may not turn their backs on targets. Once this provision is in the legislation it is there for future Ministers and Secretaries of State to use.
I come back to the point that one cannot take reasonable steps to deal with an error unless one knows that one has made an error. This is the weakness with the example of the dentist appointment. With that example, you know that you have an appointment and therefore are in trouble for failing to meet that appointment. You do not necessarily understand, comprehend or know that you have made an error, or you may not necessarily have intended to make an error, in the form that you have filled in.
The Minister says that the Government have amended their figures by raising from £15 to £65 the level at which overpayment action would be triggered and that the number of penalties has been moved down to 400,000. I still think that that is a very large number. The Minister expects that penalties will apply to only half that number—to 200,000. I still think that that is quite a large number. That is his expectation, but once that power is awarded who knows what the figures will become, how the guidance in the department will be enacted and what the resultant figures may be? I do not think that noble Lords can be asked to express their approval or otherwise of a clause in a piece of legislation simply on the expectation of how a Minister would choose to deploy that power. One has to stand back and ask what the power is that the Government are taking to themselves. I am still left with concerns.
The Minister said that the Bill provides the powers but that you do not have to use them. That is not a compelling argument for not worrying about this clause. I am no lawyer, but I thought that one of the points of having rational legislation is that it protects the citizen against irrational political behaviour. An argument based on a disposition to use or not use a power at any particular time by a given set of Ministers does not really address the merits of whether there should be such a clause in the Bill.
The other issue is the £50 itself. The impact assessment says that,
“a £50 flat rate was determined as an appropriate starting point for benefit claimants to encourage better care of their claim”.
As that says, it is a starting point. Who knows how, over time, that level of penalty will evolve?
The Minister made the point that there will not be a scattergun approach to the civil penalty but that there will be clusters of mistakes on which the focus will be. That is good. If there are clusters of mistakes, it sounds dreadfully efficient to concentrate on them, but that is no reason for introducing a civil penalty; it is a reason for looking at managerial action or process or procedure, or focusing resources to address those clusters. Simply saying that every benefit claimant who does not fill out their form properly will now be subjected to the potential powers of a civil penalty seems a slightly over-the-top response to dealing with clusters of mistakes.
With all due respect, we have clusters of errors by the department and by local authorities. There are significant errors. I cannot believe that there would in the same way be penalties on staff who make those errors, and I would be completely opposed to that too. Errors often occur in the system for systemic reasons. That is different from fraud or from somebody knowingly tweaking their form or deliberately filling it in incorrectly in order to tip the benefit advantage in their favour.
Lord Touhig
Could my noble friend say—perhaps in response to the Minister’s answer to the noble Countess, Lady Mar, when he said that it would depend upon the circumstances, and following on the point just made by my noble friend—whether she thinks it would be helpful if the Minister, before Report, could provide us with the number of cases in which the department has accepted that an overpayment has been its fault and has not pursued it, and the number of occasions on which it has found that it has been the client’s fault and pursued that?
Baroness Hollis of Heigham
I think that the power exists for tax credits but not for other benefits. At a briefing session, I asked one of the Minister’s officials— I shall not land that person in it—how often it had been used. Their answer was that they were not absolutely sure. I asked whether it was 20 or 2,000 times. Nearer 20, came the reply—in which case, I wonder where that figure of 200,000 would come from and whether it suggests that a lack of clarity is expected in the forms rather than negligence on the part of the people filling them in.
Lord Freud
Let me quickly pick up three issues. First, when I talked about clusters, I meant that, where there are clusters and mistakes, something is clearly going wrong with the way in which we are presenting universal credit. In those circumstances, we would look very hard at fixing that problem and we would not be able to accuse anyone of negligence.
Secondly, I shall look very closely at the run-in to operating the universal credit system. I agree with the noble Baroness, Lady Hollis, on lots of things. She is absolutely right that we cannot have a system that demonstrates problems in its run-in phase.
Thirdly, on targets, I need to write to noble Lords. I would not mind forbidding the DWP from ever using those targets in that way—and I could offer it as a deal any day—but a future Government might not want to be so constrained.
Baroness Lister of Burtersett
I thank the Minister for his clarification about clusters. How many £50 fines would there need to be before there was a cluster? If it was then accepted in the department that the problem lay in universal credit or in the way in which the form was designed, would the department then consider paying back any £50 fine?
Lord Freud
No, I meant a cluster of mistakes. When we begin to see a cluster of mistakes around a particular set of questions, it clearly means that we have not got it right and need to do something about it. But we will know very fast.
Baroness Lister of Burtersett
I accept and quite understand that, but the point is that, before the department realises that there is a cluster, a number of people might have been fined.
Lord Freud
My Lords, I buy the point about the delicacy of the run-in. I have a tool with which to monitor it very carefully. However, we must have a system that tells people that they must take care with their application. This is an application on which tens or hundreds of thousands of pounds are riding. It is no good people just putting in slapdash figures and not caring; this is really important information and it must be put down carefully. That is what we are trying to ensure with this relatively modest civil penalty.
Lord McKenzie of Luton
My Lords, I am very happy for the Minister to write to us on this rather than to spend more time today, because we need to make progress. This is about the practicalities. He has already indicated that the system could cost £9 million a year to operate. If a local authority seeks to collect both an overpayment and a penalty, the overpayment presumably reverts to the local authority. We do not know whether the penalty reverts to the Consolidated Fund or the DWP, but I presume that it is not to the local authority. The Minister will see that, in those circumstances, which may be quite common, one needs rules about how what is collected in respect of the two components is allocated between them. That presumably creates some administrative costs as well.
Baroness Drake
On the clusters point, clusters will presumably arise by type of error or a particular demographic of those filling in the form erroneously. I come back to my point that that issue should be dealt with not by civil penalties but by taking a more focused look at how one deals with those types of problem. I welcome the Minister saying that he is absolutely for the forbidding of targets. As to whether a future Government would be so constrained, no doubt noble Lords can argue with a future Government if they want them to be so constrained. We are trying to constrain this Government, so I certainly welcome any offers to constrain the way in which this civil penalty is used, although my preference is for it not to be there. I worry about the concept of a civil penalty and its deployment in the community of people whom we are discussing.
Finally, the Minister said that information is readily available, but you need to be able to understand it. No doubt he would say that if you do not understand it you should seek further advice from the department. However, I come back to the issues around the numeracy and literacy skills of this community of claimants. My point is that a new system of civil penalties is coming in. This partly goes to the point that my noble friend Lady Hollis made about trying to run a system of civil penalties when a new system is coming in. There will be less opportunity to find the people who this community of people normally approaches for support and help in filling out their forms because legal aid support through the advice system will not be there. We know that the local authority service will be run down, given the way in which benefits will be dealt with. We know that Jobcentre Plus venues are closing, and the jury is out as to how efficient a call centre system can be—certainly in the first few years—in supporting some of the vulnerable claimants who could be caught by erroneously filling out their forms. I beg leave to withdraw my amendment.
Lord Freud
“(4) A penalty imposed under subsection (2) is recoverable by the appropriate authority from the person on whom it is imposed.”
Lord Freud
“(4) A penalty imposed under subsection (1) or (2) is recoverable by the appropriate authority from the person on whom it is imposed.”
Lord Freud
“(2) In section 190 of that Act (parliamentary control of orders and regulations), in subsection (1), before paragraph (za) insert—
“(zzb) regulations under section 115C(2) or 115D(1) or (2);”.”
Lord Ramsbotham
“Means inquiry before sanctions, penalties and recovery of overpayments are imposed
(1) In respect of the imposition of an overpayment or sanction under the Jobseekers Act 1995 or any other provision or in the case of a penalty imposed under section 115C of the Social Security Administration Act 1992, the Secretary of State shall consider—
(a) evidence of the physical condition of the claimant and his or her state of health;(b) evidence of the psychological state of health of the claimant;(c) evidence relating to the means and income of the claimant;(d) evidence relating to the accommodation occupied by the claimant and the effect that the imposition of a sanction or penalty may have on the right to occupy such accommodation;(e) the family circumstances of the claimant and the impact that it may have on other family members and dependants;(f) evidence of the impact that a sanction or penalty may have on the ability of the claimant to fulfil obligations to third parties including those relating to the fulfilment of benefit entitlement conditions,before deciding whether to impose a sanction or penalty and shall only do so where, having considered all the relevant circumstances, it is reasonable to do so.(2) Regarding evidence as to means the Secretary of State must consider—
(a) the income of the claimant;(b) the capital of the claimant;(c) the expenditure of the claimant.(3) In order to facilitate the enquiry into the matters set out in subsection (1), the Secretary of State or authority may—
(a) arrange for a medical examination of the claimant;(b) obtain information from any agency holding relevant information on the income and resources of the claimant;(c) receive evidence from any other person or persons with a knowledge of the circumstances of the claimant.(4) A person who is subject to a penalty may appeal to a tribunal (lower tier) against the imposition of such a penalty.”
Lord Ramsbotham
My Lords, in many respects this amendment, which stems from the Zacchaeus 2000 Trust and 16 other organisations and groups, including Mind, Save the Children and the Church of England bishops, is complementary to the amendment in the name of the noble Baroness, Lady Drake, and the subsequent debate that we have just had. Its purpose is to propose that the duty on officials responsible for making decisions on sanctions or penalties against benefit claimants, or the enforcement of overpayment recovery, takes into account the facts and circumstances of the claimants in each case, and that that duty should be in the Bill. My list of what that evidence-gathering might include may seem long, but the facts and circumstances are as many and varied as the lives of the claimants themselves.
Baroness Lister of Burtersett
My Lords, I have happily added my name to this amendment because I think it is very important. The noble Lord, Lord Ramsbotham, has moved it so ably that I wish to make only one point.
The Minister constantly evokes responsibility on the part of claimants and, similarly, everything that is written about the Bill emphasises the responsibility of claimants. The amendment would help to ensure that officials exercise their powers in a responsible manner. There needs to be a quality in the contract between claimants and officials. I am not suggesting that officials should be fined or receive a civil penalty if they get it wrong. However, the amendment would help to ensure that officials consider the impact on living standards and the knock-on effects of likely debt and exercise their power as responsibly as possible.
Lord Mackay of Clashfern
My Lords, there is, in my view, a principled reason for having something of this kind. However, I am not sure whether the noble Lord has necessarily got it right and obviously he wishes to discuss the detail with the Minister and his officials. For instance, I wonder whether the amendment would have caught the two examples that he gave. Subsection (1)(f) states that the Secretary of State shall consider,
“evidence of the impact that a sanction or penalty may have on the ability of the claimant to fulfil obligations to third parties including those relating to the fulfilment of benefit entitlement conditions”.
We are saying that before imposing a sanction you should ascertain whether the obligations to third parties,
“including those relating to the fulfilment of benefit entitlement conditions”,
prevented the attendance or whatever it was that is being sanctioned. It is not the sanction that does it; it is the fact that the sanction should not be imposed because of the obligations the claimant already had.
Baroness Sherlock
My Lords, I would like to add just one point for the Minister to think about in his response. The noble Lord, Lord Ramsbotham, made a very powerful case. If the Minister does not like this way of doing things, could he help the Committee to understand how he can guarantee that his officials will undertake what seem to me to be the eminently reasonable strictures contained within the clause? If this is not the way, then what is?
Amendments moved by the noble Lord, Lord Kirkwood, and others in Committee have drawn the attention of the Committee to the fact that many of the people who will be receiving this benefit are living on the breadline. They are living on incomes which are so tight that what may seem to be relatively small sanctions can tip somebody into misery, as the classics will tell us. Could the Minister therefore consider how we in this Committee and in the House can have the confidence that nobody in that situation will be plunged potentially into despair by having a sanction applied without due consideration being taken of the impact on their physical and mental health, and indeed on the well-being of any children in their family, as described by the noble Lord, Lord Ramsbotham?
Lord McKenzie of Luton
My Lords, as has been said by my noble friend Lady Sherlock, the noble Lord, Lord Ramsbotham, has made a powerful case in principle. Like the noble and learned Lord, Lord Mackay, I am not quite sure that the formulation set down here is quite right, as it lumps together sanctions, penalties and recovery of overpayments, and there might be arguments for unpicking those. It would be helpful, in any event, if, following this debate, we could have in writing a note as to what information decision-makers would routinely have in front of them when they make the decision with regard to each of those various categories. That would help us as we move to Report.
We debated issues around the claimant commitment earlier, as has been said. My noble friend Lady Lister made the important point again about that being more about co-production rather than something that is delivered and given to the claimant. That is an important point. As my noble friend Lady Sherlock said, we are dealing with people whose resources are, almost by definition, incredibly stretched. In many cases they are on the edge. If we are going to further reduce the means that they have, then we ought to be very clear that we do that in the knowledge of all of the circumstances and the impact on their well-being.
Lord Freud
My Lords, I agree that it is right and proper that a decision-maker gives full consideration to all the relevant facts provided by a claimant when deciding whether to impose a sanction or penalty. It is also important that claimants have appeal rights when sanctions and penalties are imposed. I believe that the amendments are unnecessary because we have adequate protections in place, but I am very happy to meet the noble Lord on this matter. Let us go through it, because it is important that we get it right.
The essential difference between us—although, as the noble Lord, Lord McKenzie pointed out, we need to tease out three different things here—is that the noble Lord, Lord Ramsbotham, is looking for a specific process, whereas we are aiming, in the legal framework as it stands, at a general process of cover. The noble Lord will be aware that, if you have a whole load of specific things, you have a problem when you get the special case that is not covered, whereas if you have a general protection you are covered. I think there is a fruitful discussion to be had around that, and I would welcome a discussion to see that we have the right protections because, again, I do not think there is a huge difference between us here. We want to have the right protections for a vulnerable group. We do not want arbitrary behaviour; we want common sense. It is just a question of looking through. I will circulate the note on this matter to the noble Lord, Lord McKenzie, as well.
We are training decision-makers on a number of areas: retaining impartiality; identifying what constitutes evidence and where the burden of proof lies; on the concept of the balance of probabilities; and on an understanding of social security law. It is vital that we do this.
Baroness Hollis of Heigham
I trust this information is reliable, but in today’s press there were quite a lot of stories about how long appeals are taking and that the department—or, rather, following Leggatt, the tribunals system—is having to appoint a further 85 judges to sit on appeals tribunals because of the backlog, which is up to 12 months. Can I have an assurance—I am sure that this must be the case—that, while waiting for an appeal, no interest is ticking up on sanctions, penalties, overpayments or anything like that?
Secondly, checking with the law on tax credit as opposed to what may be the case on UC, I think that nearly all the difficulties with tax credits were not at the initial point of claim but were changes of circumstance and nearly all of them were associated with childcare changes. Half of all lone parents had more than a dozen changes of circumstances in a year, the system never caught up with itself and the computer nearly toppled. How is this going to work in this situation? People’s childcare circumstances inevitably change over half-term, a Baker day, Easter and Whitsun. By the time you keep reporting them or not reporting them—or feeling that you do not need to report them because there has been no reply to the previous report—you could be in a complete mess. I do not see how the Minister is going to manage this.
Lord Freud
The answer to the first question is that interest is not ticking.
On the second question, I share the noble Baroness’s concern about how the present childcare system works on reporting, which is why we are producing an entirely new system with a monthly report and a monthly payment system. Basically, how the system will work is that you put in the receipt for what you have paid, and then that payment is repaid on a monthly basis. The problem presented by a change of circumstances will go. Roughly 15 per cent of problems are caused at the initial stage of the original application. It does not seem sensible to privilege one set of mistakes against another when it is a reasonably substantial proportion.
I am very happy to meet the noble Lord, Lord Ramsbotham, to go through these issues in some detail, because I share his and other noble Lords’ concern that we get this right.
Lord McKenzie of Luton
My Lords, if the noble Lord, Lord Ramsbotham, agrees, might we join in with those discussions or reflections?
Lord Freud
I would be utterly delighted to invite noble Lords, but not too many. Perhaps the noble Lord, Lord Ramsbotham, will give permission for the Official Opposition team to join him. If he does, I would be delighted to see you all.
Lord Kirkwood of Kirkhope
If there are invitations floating around, could I add my name to the list? Two things worry me that we have not touched on. I support the amendment. I do not think that any of us really understands the full consequences of localism as it is finally rolled out. In terms of the public purse as generally described, if we do not have sensible means inquiries within the DWP provisions, we may just be handing on costs, charges and families in distress to our local government colleagues. That does not take us very far.
Another obvious point is that the legal aid changes that are coming are very worrying. If we look at some of the wider context in any such meeting, that would be extremely valuable, too.
Lord Brooke of Sutton Mandeville
My Lords, I reassure my noble friend the Minister that I am not asking to come to this meeting, but, as somebody who has sat through long hours in Grand Committee, I would diffidently make the suggestion that both matters might be treated at the same meeting.
Lord Freud
Yes, my Lords. I think, actually, I withdraw my offer of a meeting, because, given the level of interest, it is probably not appropriate. We should rather have a little seminar where the noble Lord, Lord Ramsbotham, is the leader, but I must welcome anyone who wants to attend that, because it does not make much sense to be too exclusive. Does that suit? Let us sit down and see whether there are any cracks in this, as some noble Lords are concerned about.
Baroness Hollis of Heigham
Sorry, if somebody puts the same information into their applications for universal credit and for localised council tax and the information is negligent or erroneous, though not fraudulent in both cases, are they exposed to two penalties?
Baroness Hollis of Heigham
Then who will get the money? Will it be the local authority or the department?
Lord Freud
When I have worked out the various recipients to the main fund and written, I will let the noble Baroness have a copy of the letter that I send to the noble Lord, Lord McKenzie.
Lord Ramsbotham
My Lords, I was not quite certain what we were going to end up with after all that. I was very grateful to the noble Lord, Lord McKenzie, for pre-empting me in suggesting that others should come to that meeting, not just those who put their names to the amendment but also those who have spoken, because I suspect that there is quite a lot to be done. I think that it might be sensible also to include some of the groups that approached me in the formulation of the amendment to hear from them on the ground as they have a great deal to contribute. I found it encouraging that the Minister agreed that this was an issue that really has to be tackled so we all start from a common ground.
As always, I am grateful for the wisdom of the noble and learned Lord, Lord Mackay. I absolutely accept what he says and indeed, I have looked at this process in Grand Committee as being a way of refining what we were saying. It was getting something done that needs refining, which I saw as the purpose of the Grand Committee. I entirely take the Minister’s idea that we take this on with a seminar. It is too important an issue not to be explored in detail. The noble Lord, Lord Kirkwood, has introduced the issue of localism, and so on, so there are other issues, as well as the Legal Aid, Sentencing and Punishment of Offenders Bill on the impact on legal aid and access to justice, which should all be taken into account. On that basis, and in thanking everyone who has taken part, I beg leave to withdraw the amendment.
Lord De Mauley
“Information-sharing between Secretary of State and DPP
(1) The Secretary of State may supply social security information to a person specified in subsection (2) for use for a purpose specified in subsection (3).
(2) The persons referred to in subsection (1) are—
(a) the Director of Public Prosecutions;(b) a person appointed under section 5 of the Prosecution of Offences Act 1985 (conduct of prosecutions on behalf of Crown Prosecution Service). (3) The purposes referred to in subsection (1) are—
(a) the institution or conduct of criminal proceedings which relate wholly or partly to social security matters;(b) the giving of advice to any person on any matter relating to criminal proceedings, or criminal offences, which relate wholly or partly to social security matters;(c) the exercise in relation to social security matters of functions assigned to the Director of Public Prosecutions under section 3(2)(g) of the Prosecution of Offences Act 1985;(d) the exercise of functions of the Director of Public Prosecutions under Part 2, 5 or 8 of the Proceeds of Crime Act 2002.(4) The reference in subsection (1) to the Secretary of State includes a person providing services to the Secretary of State.
(5) This section does not limit the circumstances in which information may be supplied apart from this section.
(6) In this section—
“social security information” means information held for the purposes of any of the Secretary of State’s functions relating to social security matters;
“social security matters” means—
(a) social security (including the payments and allowances referred to in section 124(8)), (b) tax credits, and(c) schemes and arrangements under section 2 of the Employment and Training Act 1973.”
Lord De Mauley
My Lords, this group of amendments deals with the sharing of data between the DWP and the Crown Prosecution Service on the one hand and the DWP and local authorities on the other. They build on the good practice and precedent that has been developed in the department and debated regularly by your Lordships to ensure that DWP information is used and reused efficiently, effectively, legally and securely.
Amendments 107A, 107B and 118A relate to data sharing between the DWP and the CPS and set out the legal basis for sharing information with the CPS in order for it to prosecute social security fraud. They also set out the manner in which the CPS can use that information. The DWP fraud and error strategy was published in October 2010 and the single fraud investigation service originated from that strategy. This will have two effects. First, it will bring together all elements of local authority, DWP and HMRC fraudulent benefit investigations. Secondly, it will result in an increase in the amount of DWP prosecutions handled within DWP’s prosecution division. This increase in the number of cases to be dealt with, the need for us to react flexibly to new requirements emerging from new social security benefits and provisions, and the emergence of the single service have led our prosecution division to review its capability. This in turn has led to the conclusion that the service would be provided more effectively if it were to be transferred to the Crown Prosecution Service.
Specifically, there are three data-sharing amendments that relate to this. Amendment 107A sets out what information may be shared and what restrictions will apply to the CPS when using that information. Amendment 107B places the same onus on CPS staff as exists for all DWP employees when handling personal data and imposes a penalty clause that may be invoked in cases of unlawful disclosure. Amendment 118A deals with the extent of the legislation in that the CPS operates only in England and Wales, so these provisions are not being extended to cover cases dealt with by the prosecuting authorities in Scotland and Northern Ireland.
Examples of the information that will be exchanged between the DWP and the CPS include files for consideration for prosecution and the execution of those duties. However, the DWP has a very wide range of legal requirements that relate to investigating and prosecuting fraudulent offences. To bridge the information gap that arises because the work was previously wholly contained within the DWP, the staff currently employed in the department’s prosecution division will be redeployed into the CPS. I assure your Lordships of our continuing commitment to handling personal information with the same level of protection that is currently standard within DWP.
Baroness Hayter of Kentish Town
My Lords, I thank the noble Lord, Lord De Mauley, for moving the amendment. It is never quite as welcome as his normal Motion, which is that we should have a tea break.
There is nothing between us on the amendments. As the Minister said, and as was contained in the helpful note issued by the DWP, it is anticipated that the volume of cases that the DWP wishes to prosecute will substantially increase. What additional resources are being committed, first, to the CPS to enable it to deal with the substantial increase in prosecutions; and, secondly, to advice agencies, which will inevitably face an increase in demand as claimants seek to understand why they are being prosecuted and what their rights are in this area? Given the absence of legal aid in future for many such cases, as we have already heard today, such generic funding will be vital.
As the Minister said, the second group of amendments relate to information-sharing between the Government and local authorities and sensibly use the generic term rather than the specific ones for each particular benefit. However, can the Minister clarify whether there are any duties on local authorities to share information in the other direction—that is, with the department—because, as we have seen and has been mentioned again in the case of the benefit cap, understanding the amount of help with council tax that the claimant is receiving may be critical to ensuring that the system proposed can be made to work.
Lord De Mauley
I am grateful to the noble Baroness for her questions. In order to hasten things, may I write to her with answers to those questions?
Baroness Hollis of Heigham
Is it not the case that local authorities and the department very sensibly share information on the ATLAS project and therefore that this would follow from that?
Lord De Mauley
I am grateful to the noble Baroness. I think I will include that in the written answer.
Lord Freud
“Unlawful disclosure of information supplied to DPP
(1) A person to whom information is supplied under section (Information-sharing between Secretary of State and DPP), or an employee or former employee of such a person, may not disclose the information if it relates to a particular person.
(2) Subsection (1) does not apply to—
(a) a disclosure of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it; (b) a disclosure made for the purposes of a function of the Director of Public Prosecutions, where the disclosure does not contravene any restriction imposed by the Director;(c) a disclosure made to the Secretary of State, or a person providing services to the Secretary of State, for the purposes of the exercise of functions relating to social security matters (within the meaning of section (Information-sharing between Secretary of State and DPP));(d) a disclosure made for the purposes of a criminal investigation or criminal proceedings (whether or not in the United Kingdom);(e) a disclosure made for the purposes of—(i) the exercise of any functions of the prosecutor under Parts 2, 3 and 4 of the Proceeds of Crime Act 2002;(ii) the exercise of any functions of the Serious Organised Crime Agency under that Act;(iii) the exercise of any functions of the Director of the Serious Fraud Office, the Director of Public Prosecutions for Northern Ireland or the Scottish Ministers under, or in relation to, Part 5 or 8 of that Act;(iv) investigations or proceedings outside the United Kingdom which have led or may lead to the making of an external order within the meaning of section 447 of that Act;(f) a disclosure made to a person exercising public functions of law enforcement for the purposes of the exercise of those functions in civil proceedings;(g) a disclosure which in the opinion of the Director of Public Prosecutions is desirable for the purpose of safeguarding national security;(h) a disclosure made in pursuance of an order of a court;(i) a disclosure made with the consent of each person to whom the information relates.(3) Subsection (1) does not apply in relation to information relating to schemes and arrangements under section 2 of the Employment and Training Act 1973.
(4) Subsection (1) is subject to any other Act or to an instrument made under an Act.
(5) A person who contravenes subsection (1) commits an offence.
(6) It is a defence for a person charged with an offence under this section of disclosing information to prove that he or she reasonably believed—
(a) that the disclosure was lawful, or(b) that the information had already and lawfully been made available to the public.(7) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both, or(b) on summary conviction, to imprisonment for a term not exceeding twelve months or a fine not exceeding the statutory maximum or both.(8) A prosecution for an offence under this section may be instituted only with the consent of the Director of Public Prosecutions.
(9) In relation to an offence under this section committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (increase in maximum term that may be imposed on summary conviction of offence triable either way), the reference in subsection (7)(b) to twelve months shall have effect as if it were a reference to six months.”
Lord Freud
““relevant information” means information relating to—(a) any relevant social security benefit, or(b) welfare services;“relevant social security benefit” has the meaning given in section 121DA(7) of the Social Security Administration Act 1992;”
““welfare services” includes services which provide accommodation, support, assistance, advice or counselling to individuals with particular needs, and for these purposes “assistance” includes assistance by means of a grant or loan or the provision of goods or services.”
Lord De Mauley
Lord Kirkwood of Kirkhope
“Social Security Advisory Committee
In section 173(5)(a) of the Social Security Administration Act 1992 for “coming into force of the enactment under which those regulations are made” substitute “enactment under which those regulations are made receiving Royal Assent”.”
Lord Kirkwood of Kirkhope
My Lords, this amendment is tabled in my name and that of my noble friend Lady Thomas of Winchester. I think I can dispatch this with as much speed as possible. It is an important probing amendment to try to persuade the Government to clarify the position of the Social Security Advisory Committee beyond doubt in the context of this Bill.
As we all know, the Social Security Advisory Committee sheds light on some of the more obscure regulations and regulatory powers that flow from primary legislation and has an important additional duty to give advice and assistance to the Secretary of State. I know that the noble Lord, Lord Freud, who I think is the responsible Minister, is very careful in his duty to the Social Security Advisory Committee, which is welcome. It is welcome as far as the committee is concerned as well.
After Royal Assent, there is a process that has been going on for some time. Members of the Social Security Advisory Committee—they are technical experts, in the main—can self-refer pieces of secondary legislation where they feel there is an important point to make, to explore or to advise Parliament of. They sift every statutory instrument, and they use their discretion to self-refer. It all works rather well. As far as I can recall, until the Social Security Administration Act 1992 primary social security statutes were much more expansive and descriptive and most had their own time limit at which the Social Security Advisory Committee could take charge of regulations and self-refer. It was usually after a period of something like six months, but sometimes different statutes made different arrangements.
After 1992, there was an understanding that six months was the most appropriate period because Parliament could in theory be considered to have introduced all the salient facts, discussed them and come to conclusions that would not change much in six months. I think things have changed since then, because we are now dealing with skeletal primary statutes. This Bill is no exception. There must be up to 200 regulations in here. In the past we have seen some regulations being scrutinised by the Social Security Advisory Committee only after six months of the implementation of the provisions in the individual clauses.
This is a probing amendment. I hope that the Government will go away and think carefully about this. In this Bill in particular, because it is a significant change of direction, regulations will start pouring out of the department, so we will have many hours of happy discussions downstairs in secondary instrument debates almost as soon as this Bill gets Royal Assent. I want to be clear about exactly where the SSAC fits into the future of that. The implementation of the Bill and the rollout of provisions will, in any case, take a long while, so circumstances could change quite dramatically not just financially but socially, culturally and in others ways as well. I for one would feel safer if we had an assurance—even if it was in the Bill—that there was no doubt in anyone’s mind that, six months after Royal Assent and when the ink was dry after Her Majesty’s pen had scraped the official signature— if that is what happens these days—across the goatskin, the Social Security Advisory Committee would immediately thereafter have access to the regulation-making power that flowed from the universal credit and all the other provisions in this particular legislation.
Obvious questions flow from that. Does the SSAC have the discretion, authority or interest in picking what regulations to concentrate on? Speaking for myself, I trust its judgment in doing that. If, for every 10 secondary instruments that it looked at, it said that Parliament should look at two, I would be absolutely content to leave it to make that decision and use its discretion in that way. That is based on years of working with the committee and being confident that its members know what they are doing and have regard to the public interest, as well as having the depth and knowledge of experience that they have arrived at over many years. I can give colleagues comfort that they could do that properly.
I am not even going to ask for more resources. I would like to, but in these straitened times it would be hard to say that as we could double the workload we need to double the staff. I am not saying that. I am asking for clarity about when its remit commences. I think that we will all need help in trying to understand. I know that the Minister has done his best to provide the Committee with draft regulations as soon as they become available, but there are still huge gaps. We are taking a lot on trust. As legislators, we could feel more confident that we were on top of what was being done in Parliament if the Social Security Advisory Committee had unfettered access to discretionary self-referral of statutory instruments after six months after Royal Assent. I beg to move.
Baroness Thomas of Winchester
My Lords, my name is also on this amendment. My noble friend has explained the six-month rule. I would say that the DWP has recently interpreted it creatively. The rule was originally brought in partly to allow for the quick implementation of regulations and partly to stop the wasteful duplication of the same evidence being produced for the statutory consultation undertaken by the SSAC as for the parliamentary debate on the Bill. It dates back to 1973 and the predecessor committee, the National Insurance Advisory Committee, but that reasonable rule has been stretched beyond reason when a year, say, after Royal Assent, whole sections of Acts can be activated, at which point the DWP starts the clock to begin the six-month exclusion period.
Lord McKenzie of Luton
My Lords, we have a good deal of sympathy for the amendment of the noble Lord, Lord Kirkwood, and the noble Baroness, Lady Thomas. My understanding is that draft regulations—or proposals for regulations—have to be submitted to the SSAC except in certain circumstances. One of them, which has been mentioned, is that regulations made within six months of the enactment of primary powers do not have to be submitted.
This amendment seeks to say that the six-month clock should start when the Bill becomes an Act, not when the particular provisions are drawn down. That could widen the scope of what the SSAC should review. I support that. It is sometimes uncomfortable as a Minister being on the receiving end of a report from the SSAC, but in a sense that is part of the process that we need to engage in. Clearly there would be issues of capacity if this change were to happen overnight, particularly given the Bill that we are now considering. It seems that Bills of this nature will inevitably be framework Bills. Our Bills were. There is always tension between working on the basis of draft SIs, trusting to luck or assurances as to what eventually comes through, and having a degree of certainty.
It is not our official position but it seems to me that one way round this would be for Parliament to be able to amend SIs. It would take us away from some of the debates that we have about trying to get stuff into primary legislation, but that is probably a debate for another day. We should take seriously the prospect of the SSAC looking at SIs more widely and not being pre-empted by the six-month rule. There is clearly an issue not only about the capacity of the SSAC but about its expertise. It is very important that that is maintained.
Lord Freud
My Lords, I am not alone, I know, in acknowledging the vast knowledge of my noble friend Lord Kirkwood in this area. He was, of course, chair of both the Social Security Advisory Committee and the Work and Pensions Committee in the House of Commons—I think I can say that now, if I am not pre-empting. His involvement in this important subject stretches much further than that. I welcome the probe and hope that I will be able to persuade him that the amendment is unnecessary.
The SSAC provides a valuable function and goes about its work very effectively. From my perspective and that of my ministerial colleagues, the relationship between the department and the committee is productive. We enjoy a similar relationship to the one that the noble Lord, Lord McKenzie, had. More specifically, the SSAC is currently working on a major study of passport of benefits in the light of the impact of these reforms. As my noble friend acknowledged, this is really the most significant ad hoc study by the committee that Ministers have commissioned for many years. It is a wish to look at situations in the widest possible way.
The committee’s current remit does not include the scrutiny of draft regulations made under powers recently enacted by Parliament. As my noble friend pointed out, this is for a period of six months, beginning from the commencement of the relevant enabling power. The amendment would therefore set the clock ticking from Royal Assent in all cases rather than from the commencement of the relevant enabling power. It follows that if an enabling power was commenced at a point more than six months after Royal Assent, regulations under that power would automatically be referred to the committee. I believe that that would be unnecessary. Informal arrangements are already in place in this area. As I explained when we debated Clause 1, we will continue to talk to the SSAC as we move to the implementation stage of this Bill and use the arrangements that are currently in place and that allow us to provide it with information on new powers and regulations made within six months of the commencement of those powers.
Noble Lords are aware that when the Government implement major welfare reforms, the relevant primary powers are sometimes commenced at different times, reflecting the staggered implementation process that can apply in such circumstances. Under the amendment, some of the regulations brought forward in this scenario—those brought forward within six months of Royal Assent—would not be subject to the committee’s scrutiny, but others brought forward subsequently would be, even though Parliament would have approved the primary powers applicable to the reform as a whole. That inconsistency would be undesirable and we do not believe that adding to the committee’s former role in this way would be warranted. Implementing the reforms in this Bill is an enormous undertaking.
A huge number of officials in the department are working on it, and others are working on changes to a very challenging timetable. It follows that the weight of draft regulations following the reforms would place an unreasonable burden on the SSAC if the Secretary of State were required to refer all regulations to the committee made six months after Royal Assent. That point was touched on by the noble Lord, Lord McKenzie, and I need to confirm that this is an overwhelming process, particularly right now.
I have emphasised that we already have effective informal processes in place in this area. I also believe that the application of the affirmative procedure to, for example, the first core set of universal credit regulations is another safeguard, making it less necessary to consult the SSAC on a formalised basis in respect of those regulations in particular.
Baroness Hollis of Heigham
I think we would all accept that there is a difference between this Bill and, for example, a pensions Bill and its draft regulations, on which the Minister, his officials and his staff need to consult what I would call the professional organisations. These are quasi-technical and may be associated with the process; they have their own exchange and interchange of information and of what they flag up, and so on. In other words, there is a professional body of interested but skilled parties who can negotiate with a department on an equal base, and, as a result, draft regulations may be improved before they subsequently become full regulations.
The trouble with welfare reform and a Bill such as this is that, apart from the charitable organisations and lobby groups that have a wealth of expertise, for the most part there are not the bodies that the noble Lord and his staff would expect to negotiate with in the same way as he would expect to negotiate with business organisations or the NAPF about pension structures. Therefore, the very fact that there might be 200 regulations coming our way means that Members too find that they have no input from professional bodies that are equivalent to those pension bodies but that deal with welfare, in order to help shape our thoughts and give us an extra resource of experience.
This is not necessarily appropriate for Bills for which there are bodies that can serve that function, but for framework Bills and where bundles of regulation are likely to cluster in a particular field—housing here, or the benefit cap there—it would be very helpful for all of us seeking to scrutinise those regulations in due course to have had the input of the SSAC before we commence, because otherwise there is nothing between us, the draft regulations and the framework Bill, and we will not get the appropriate input that we need.
Lord Freud
My Lords, what we are designing here is a massive undertaking. I know that I set a considerable challenge for the SSAC in the passporting arrangement alone. The noble Baroness and my noble friend ask whether adequate information flows are coming through to Parliament as we consider the regulations. We are in regular contact with the stakeholders on a wide range of issues. We have published a series of detailed policy notes. We are trying to have a very open process.
Baroness Hollis of Heigham
My issue is that there are no stakeholders as there are in other types of legislation. My argument hinges on that fact. In pensions legislation, and even in some of the disability legislation that is very specialist, such as the Disability Discrimination Act, which is a more legal framework, there are specialist organisations that can negotiate. We have no such organisations with this Bill. We have charities, but they are client-group representatives rather than bodies of equal professional standards, in the way that the Department of Education has teachers, the Department of Health has doctors and so on. The DWP has no equivalent.
Lord Freud
I accept the point. In practice, we face lobbyists and stakeholders, although one could argue that the pensions industry is also facing lobbyists, albeit slightly better resourced ones who are more interested. The core issue is what the SSAC can do with this Bill in its scale and size. The SSAC is a relatively small organisation. It has a secretariat of three or four, internal to the DWP. It has 13 or 14 members. When you look at the literally thousands of people who are creating this, it is very hard to imagine an ability to take this in its entirety, with all those regulations for the SSAC to deal with.
The SSAC has two functions. It deals with a regulatory rolling process, which is outside the major revolution that we are talking about. I hope that it will apply itself to particular issues on which we would really value its help. The first example is passporting. It was very much my own view that this would be a good way in which to start this process.
I think that noble Lords in this Committee underplay their own prowess in this area.
Lord Freud
It never failed in the past. They also underplay their ability to gather the views of stakeholders that have been coming and do come to them directly. I suggest that a major expansion of the powers of the SSAC, which this would represent in practice, is not appropriate. Any regulations for universal credit that rely on existing legislation relating to claims, awards, payments and joint claimants will still be subject to SSAC examination. I ask the noble Lord to withdraw his amendment.
Lord Kirkwood of Kirkhope
I do not know whether I am more frightened now than I was previously. I accept that there is a capacity issue, but I am looking for the comfort that I have heard in the past that significant matters will reach our desks as legislators faster. None of us can keep up with the flow of things. If you are just a guerrilla opposition Member, which I used to be, the default position was to table negative prayers against everything.
The Minister has to be careful that we do not get back to that safety default position where you could just give the Minister of the day a bit of a kicking at the Dispatch Box and go home. Sometimes you might hit lucky on something that the Government did not want you to know about, but that is not where we want to be. I absolutely accept that the Minister in particular has been transparent to a fault. You can see straight through him on things that are coming down the track. It is impossible to read it all, but I worry that he will struggle if these regulations come in in wodges and packages immediately after Royal Assent. I do not want people like me to be put into the position where I think, “Well, safety first. Let us just pray against it anyway”. That would not be sensible.
I would like the SSAC to say, “Of this batch, if you want to concentrate on anything, this is what you should concentrate on”. That would be massively reassuring to me. I would go home at the weekend thinking that I was earning whatever it is that we get to come here. Obviously, I will withdraw this amendment, but I hope that the Minister will reflect on that point. This is a probing amendment. I understand capacity issues and the importance of him using his expertise within the Government to get to a better place. I will read the record and try not to worry more than I did before I tabled the amendment. I beg leave to withdraw the amendment.
Lord Kirkwood of Kirkhope
“( ) After section 1 of the Child Support Act 1991 there is inserted—
“Effective maintenance arrangements
(1) The main objective of the Secretary of State in applying the provisions of this Act shall be to maximise the number of those children who live apart from one or both parents for whom effective maintenance arrangements are in place.
(2) The Secretary of State shall prepare and lay before Parliament a report on a bi-annual basis giving details of the progress achieved under subsection (1) above in maximising the number of children who live apart from one or both parents for whom effective maintenance arrangements are in place.””
Lord Kirkwood of Kirkhope
My Lords, given the hour and the fact that we are turning to a completely fresh, but very important, subject, perhaps I can be allowed to introduce skeletally the first clutch of four amendments. Amendment 113B, which stands in my name and the names of other noble Lords, inserts a new section into the Child Support Act 1991 to maximise the maintenance payment of money to children separated from their parents.
I would like to get to the second group of amendments as fast as we can. In trying to contrive a debate that made sense, it was necessary to tease out some of the important themes relating to child support, and the only way I could sensibly do that was with these four amendments: Amendment 113B, which deals with a duty to maximise benefit; Amendment 113C, which deals with the level of services; Amendment 113D, which looks at equality of treatment in gateway access; and Amendment 113F, which deals with legacy cases and how they relate to the new gateway. If we can deal with those expeditiously by way of introduction, we can then get on to some of the more apposite provisions in terms of charging. I hope that we will be able to do that in good order.
I do not know why I am so personally wrapped up in child support legislation. I think it is partly because I was around in 1991 when the first Act was introduced, and I have seen it through all its stages: the 1995 Act, the 2000 Act, 2007, 2008 and here we are in 2001—
Lord Kirkwood of Kirkhope
It feels like 2001. I beg the Committee’s pardon. It should have been 2011, and it may even be 2012 by the time we get there.
These two or three clauses have deep significance, and they have to be read. I took the trouble to reread them at the weekend. They differ quite substantially in tone from the rubric and narrative that the Government are advocating for this change. They insert quite dramatic hurdles, particularly for parents with care. They introduce a new level of fiscally driven tension between getting the savings that CMEC and the department are looking for and the maximisation of the flow of benefits to parents with care and their children.
This is the new, new CSA—CSA 2.5 or CSA 3—that we are heading for in 2012. I will go to the great Parliament in the sky a very unhappy bunny if this one goes wrong as well. It is not a question of allocating blame; I am as responsible as anybody. I thought that the provisions that were introduced early on were fit for purpose. However, there is a huge gap between policy creation and the implementation of this very difficult area of public policy. It is a deeply troubled area and we need to be very careful that what we are doing is apposite and right for the people it is designed to serve.
It is important to mention the staff who laboured under the introduction of these provisions. I think that the Minister in the Commons, Maria Miller, mentioned them rather glancingly in the Public Bill Committee. She said that the actions of the staff resulted in the measure not falling flat on its face, particularly around 2003 when everything was going wrong. If it had not been for the dedication of the professionals who ran the CSA centres and worked through the stuck cases that went into manual administration, the whole thing would have collapsed. I want to make clear that although I think that in the past the policy has been totally inadequate, I do not mean in any sense to criticise the professionals who were asked to administer it. By and large, they played a great game and without them we would have been in a much worse situation.
The background political context to this is slightly worrying as well. It would be helpful to be told why there has been no response to the Select Committee report that was published in July. As colleagues know, Governments have to respond to Select Committee recommendations within a two-month period, although there is a bit of a purdah period over the summer. For a set of important recommendations that are absolutely apposite to this group of amendments to be published and to have no government response is indicative of something: either something very good or something very difficult is happening.
My noble friend has now been invited to enter the trench of child support and maintenance. I cannot think of anybody more appropriate to man a trench than my noble friend Lord De Mauley. I welcome him to the task. I hope he is not considered to be expendable infantry—perhaps the noble Lord, Lord Freud, has neatly side-stepped the graveyard pass. Can we be told what is happening with the Select Committee report? Furthermore, the draft regulations were supposed to be made available to the Committee by the end of 2012. Perhaps we will get them soon, very soon or very, very soon, but there are only days left before these regulations are due. I am picking up in the corridors here at Westminster a general political unease—this unease crosses parties and is felt not just by one side or the other—about the family implications of some of these changes, particularly around charging which we will come to in a minute. Some of us are old enough to remember when a £44 charge was introduced in 1995, which did not last very long. I wonder what has changed. I think that that £44 charge lasted about 18 months before it was realised that it cost more to collect than it brought in and the whole thing collapsed, but here we are again with charging. I ask myself what is different.
My next question impacts on all four of the amendments we are discussing. Is the 2012 CSA 3 or CMEC 3—or whatever the new, new system is being called—on track? The annual report of the CMEC/CSA that was produced earlier this year noted that the major projects authority was asking some very searching questions, and raising doubts, about challenges that were being faced with yet another new computer system. I do not know whether the system is in Warrington or whether it is an agile system. I hope that it is both, but I hope that it works. If we could get an assurance about the readiness of the 2012 relaunch, it would be valuable in our consideration of all three groups of amendments around this policy.
I also want to ask about costs. I looked at the Work and Pensions Select Committee report on the rest of the comprehensive spending review period and am puzzled about what exactly the costs are. At paragraph 75, the report states:
“Noel Shanahan indicated that CMEC’s aim was to achieve at least a 30% reduction in costs, in common with other parts of Government”
over the CSR period. We all know that the previous annual report, for 2009-10, indicated that the CMEC was spending £572 million. At paragraph 76, Noel Shanahan is quoted as saying that the transition to the new system in 2012 would cost,
“in the region of between £150 million to £200 million in terms of additional costs”.
Could some clarity be introduced as to over what period that refers to? How is that money being spent and how does it measure up to the 30 per cent reduction that Mr Shanahan was talking about? I am not clear as to the spend profile and the business case for charging—we will come on to that later. A reduction of 30 per cent on a budget of £572 million will put immense cost pressures on the agency through 2012 and beyond. It is very important, in order to make sense of this group of amendments, to know what the Government are planning to spend and what the business case is.
We have all had the benefit of the excellent work that has been done by Gingerbread and other groups that have been briefing us. Amendment 113B would make sure that the principal objective available to CMEC in its previous non-departmental-public-body status, to maximise the number of those children who live apart from one or both parents for whom effective maintenance arrangements are in place, was enshrined in law. CMEC is being abolished as a non-departmental public body and being taken into an executive agency, and therefore does not have that objective. All we have now is assurances from Ministers. The Minister, Maria Miller, gave rather a weak assurance to the Public Bill Committee, saying that we could rely on ministerial assurances. I am sure that we can, but that is not my experience with all Ministers all the time. I should like to hear what the Government have to say about the prospect of trying to put back that basic overriding objective into the work of the commission. As a consequence, a two-yearly report on progress on meeting that objective would be valuable.
I wonder whether we could use Amendment 113C to ask the Minister to explain to us a little bit about how the new support services will be rolled out and, again, how much money is involved in their provision. A £30 million fund is available through the Department for Education, which oversees a range of grant-funded relationship and family support services.
Baroness Sherlock
My Lords, I rise to support and speak specifically to Amendment 113B, to which my name is attached. In doing so, I remind the Committee of the interests which I have in the Register, in particular that I was a non-executive director of the Child Maintenance and Enforcement Commission, having stood down from that position shortly after my introduction to the House. I am also a former chief executive of the National Council for One Parent Families, which has now merged with Gingerbread. I am very grateful to Gingerbread and other organisations for their briefing.
It is a huge disappointment to me that this issue has come at the end of the Bill because, along with the noble Lord, Lord Kirkwood, and many other noble Lords, this is one of my favourite subjects. Frankly, I could happily talk about child support for a very long time. However, as the noble and learned Lord, Lord Mackay, is looking sternly at me, I shall limit my remarks to only one of the amendments and then speed on to allow him to offer an infinitely more informed view.
The noble Lord, Lord Kirkwood, has explained why the amendment is necessary. In particular, it would re-establish the notion of the objectives that are currently the main objectives of the commission, which will disappear as a result of its being abolished and brought back inside DWP as an executive agency. No doubt in due course these will become objectives of the Secretary of State, but I want to explain why it will be a problem if they vanish altogether from legislation.
At the moment, the commission’s main objective is to maximise the number of children who live apart from one or both of their parents for whom effective maintenance arrangements are in place. There are two subsidiary objectives, the first of which would encourage the support and the “making and keeping” by parents of voluntary maintenance arrangements. The second would support the making of and compliance with statutory arrangements. A further objective of the commission is:
“The Commission shall aim to pursue, and to have regard to, its objectives when exercising a function that is relevant to them”.
Not only must it do that but it must also have regard to those objectives in deciding how it discharges its various responsibilities.
As the noble Lord, Lord Kirkwood, said, Maria Miller, in the House of Commons, as I may now say, has said that the Government remain committed,
“to maximising the number of effective … arrangements”.—[Official Report, Commons, Welfare Reform Bill Committee, 24/5/11; col. 1103.]
That is welcome but I should like to explain why it is not enough. When I was a member of the board, we discussed and debated the priorities of the commission, what we should do and how we should do it. We came back repeatedly to the objectives set out by Parliament. Those were very much in front of us at all times.
If we were tempted to forget them, the very able civil servants who worked for the commission and the department would remind us of them at relevant moments, which they were right to do. They carried considerable weight. In fact, they carried far more weight than the assurance of the Minister of the day—distinguished though he was, of course. It is right that the objectives set down by Parliament should carry more weight than the views of any Minister who happens to hold office on any particular day. That is what Parliament is for. There is a big diminution in weight in moving from having clear objectives set out in legislation to having simply the assurance, however welcome, of the Minister of the day.
CMEC was beginning to make some significant improvements. It was created in 2008. Last year, 970,000 children benefited from child maintenance, including more than 100,000 from private arrangements, which must be due considerably to the CMEC option service and the fact that the commission had a statutory obligation to go out and pursue private arrangements. In March 2008, the figure was 750,000, so there was quite a big jump.
The noble Lord, Lord Kirkwood, mentioned possible cost reductions of the order of 30 per cent. This is important because—I am sorry to bring this to the attention of noble Lords—there are people with suspicious minds who fear that the Government’s primary aim is to save money, rather than to move to a better system of child support. Like other noble Lords, I would not dream of having any truck with such a notion. But perhaps the Minister could help Members of the Committee to make sure that they are in a position to understand and to rebut these claims when they are made by people outside this Chamber.
It is important because, if there is no broader objective to maximise the number of effective arrangements in place, Ministers might feel that they have done their job simply by deterring people from using the statutory system of child maintenance. They do not have any obligation to make absolutely sure that those people are going elsewhere and making arrangements, rather than simply not making any arrangements at all. If the Minister were willing to accept that this is an important objective, he could reassure us all. In the absence of that, there is a very real danger that these charges will come to be seen—we will go on to discuss them in detail—not simply as a means of raising money but primarily as a means of deterring people from using the statutory system in order to save considerable amounts of money in administration to the state. Frankly, it is hard to see how savings of the order that have been described by the noble Lord, Lord Kirkwood, can be achieved otherwise.
I am delighted that the noble Lord, Lord Freud, has given the noble Lord, Lord De Mauley, the opportunity to step into the breach on so important an occasion. Should the noble Lord, Lord De Mauley, hear at any point someone saying, “I am right behind you”, I suggest he takes a look behind him to be sure that that is true. I am delighted to see him at the Dispatch Box on such an important occasion. Perhaps he will take the opportunity to reassure the Committee, first, on whether the Government accept the content of the amendment. Are they committed to maximising,
“the number of those children who live apart from one or both of their parents for whom effective maintenance arrangements are in place”?
Is the principle acceptable? If it is acceptable, is he happy to put this into legislation? After all, it is likely that the Official Opposition are supportive since it was their Bill which brought these words into legislation in the first place. If we are all in agreement, perhaps this happy outbreak of unanimity can be celebrated by having an amendment accepted in Grand Committee. I look forward to that. If he is not able to do that, will he explain why not, what he believes the consequences will be and how else we can go out and give assurances to the cynics in that difficult world?
Baroness Tyler of Enfield
My Lords, I will speak briefly to Amendment 113B. In so doing, I declare an interest. I am currently the chief executive of Relate, which provides a wide range of services to separating families. I am also part of an advisory group of people from the voluntary sector which advises DWP Ministers on what a network of integrated support services might look like. From that point of view, it is important that that is clearly stated on the record.
I want briefly to support the case that has been put forward by my noble friend Lord Kirkwood as to why it is important that we incentivise non-resident parents to engage in the gateway process, as well as parents with care. There are two points I want to make. First, the gateway and the application charge—and I know that we will come to the charge in a later grouping—bite at the moment on parents with care wishing to use the statutory child maintenance system. The aim of this is to incentivise them to try to negotiate a voluntary agreement with the other parent instead. I support that. It is right and proper, where it is practical, that incentives to do so are built in. But there is no equivalent mechanism pushing the non-resident parent actively to engage in the process of trying to reach a mutually agreeable arrangement. As the legislation is currently constructed, it is only after a parent with care has paid an application fee of £100 and a statutory calculation has been made that any incentive will be given to the non-resident parent to reach a private agreement. That is basically very unfair.
My second point is a more positive one: the gateway stage is an opportunity for meaningful conversation between both parents. It aims to explore the scope for reaching collaborative arrangements, to assess what help either or both parents might need in order to arrive at such arrangements and to signpost and refer one or both parents—and, indeed, the children involved—to suitable provision and the help that exists for separating parents and families. Non-resident parents who are responsible for paying child maintenance should, I feel, be especially involved in this process.
I conclude by saying a couple of things that come very much from my experience at Relate. It is very important to children that both parents after separation continue to be involved as co-parents of those children. The relationship between the adults may be completely and utterly at an end, and indeed new relationships may well have been formed; but for that child, the active involvement—of course, where safe—of both parents is absolutely critical, emotionally, in practical ways, financially and in a range of other ways. It is critical that these new arrangements, however they are finally constructed, put the maximum possible incentive on both parents to see how they can discharge their responsibilities to be effective co-parents after separation—a responsibility which I think that most of us think is for life.
Baroness Lister of Burtersett
My Lords, I, too, shall speak in support of Amendment 113B, although what I have to say is also relevant to Amendment 113DA in the next group. I, too, thank Gingerbread for its help.
I want to concentrate on how Clause 131 in particular, coupled with the wider government proposals to charge parents for use of the statutory child maintenance scheme, will disproportionately impact on women who, according to the Government’s own analysis, make up around 97 per cent of parents with care who are eligible for child maintenance. It seems very surprising that, at a time when the Government are worrying about the erosion of their support among women, particularly so-called C2 women, they should be proceeding with a policy on child maintenance which will unfairly impact on this group.
The Government say that the new gateway and the proposed charges are intended to drive behavioural change—yet again—yet in the brief circulated last week, the DWP acknowledges that a significant proportion of parents will not be able to collaborate and that there are circumstances where there will be no reasonable steps that they could take. Therefore, echoing a question I asked last week in relation to the benefit cap, what behavioural change are they trying to achieve in such cases? Is it really fair to subject this group to charges, particularly in the name of behavioural change?
Baroness Hollis of Heigham
My Lords, the speeches that we have heard so far have been extremely powerful and I very much supported the amendment moved by the noble Lord, Lord Kirkwood. I shall refer to Amendment 113B in the name of my noble friend Lady Sherlock, as well as Amendment 113DA in the name of the noble and learned Lord, Lord Mackay. I feel strongly that structures should follow the objectives and not that we should adapt the objectives to be the outcome of whatever structures we think we can best achieve, which is what is going on, I fear, in Amendment 113B. Amendment 113DA is simply wrong and I am frankly amazed that the DWP has come forward with this proposition. It is morally offensive and I do not know from where it has come.
Like others we have the CSA engraved on our hearts. The 1992 legislation was a catastrophe primarily because it insisted on overturning existing court objectives and becoming retrospective, which means that the new system never caught up even though it was entirely well intentioned. I remember defending our intentions on the 2000 legislation in front of the committee chaired at the time by the noble Lord, Lord Kirkwood. We found it difficult to persuade the Treasury to budge beyond a £10 hand-back to women, so we could never get women to co-operate in setting the CSA on their old partners, as there was little in it for them.
The moves established by my noble friend in 2008 to allow women to keep all their maintenance was a triumph, but the problem with voluntarism, which also accompanied it, meant that it became a charter for bullies who did not want to pay, as indicated by my noble friend Lady Lister. We know that the people who pay are the men who need to pay most, not the men who need to pay least. They are the men who have been married, divorced, are older, earn more, have a profound attachment to their children and expect and want to pay. They are honourable and decent men and they are the ones who pay most. They pay and behave admirably. We also know, however, the ones who do not pay. They are the young, feckless men who have never actually lived with the child, who is perhaps the result of an overnight relationship, if we can dignify it with that term—a casual sexual act. They think that they were trapped.
There are the chaotic self-employed who never get their accounts right and never find the money to pay for their children. A group that surprised me are the men in uniform who are often very bitter, judgmental and followers of the language of fault—“She had an affair so it is her fault and I don’t pay”—with little regard for the children. Finally, there is the group mentioned by my noble friend Lady Lister—the men who have remarried, with second families whose new partner is often very hostile to any payment. These men change their address, their job, their name, and even their country to avoid paying.
Add to those problems a flaky computer and the problems of HMT, which is not only unwilling for women to keep their money but refuses to share key information so that NRPs can be tracked through their current records. We were not allowed to deduct even a £5 benefit payment at source. It would have been obvious for HMT computers to talk to DWP computers, but that was not possible either. It is no wonder that there has been a struggle ever since.
I fear that increasingly—with these measures, I am convinced of it—the concept of child support has taken a wrong turning in this country. Unless we accept the amendments moved so ably by the noble Lord, Lord Kirkwood, and my noble friend Lady Sherlock, that wrong turning will become a highway down which the failure to pay child maintenance will rapidly escalate. I strongly believe that statutory payment should be not the last resort but the first. That is how we establish the appropriate level of money that should be paid; you establish a speedy pattern of payment. We know from Australia and all the international research that unless you establish payment early and ensure that it is paid regularly for at least a year, it dies within 18 months or two years. Establish payment early and get it paid regularly and there is a hope that you will get amicable contact arrangements. Then the whole thing becomes a virtuous circle.
Having voluntary payment in which the father can bully his way out of payment, as he too often has done, means that it never gets established. If instead we had statutory payment to begin with and then after six months or a year following regular, reliable payments the reward was voluntary negotiations, that would be wonderful. That would combine the best of all worlds. You would establish the pattern of payment, and then, if the father co-operates in that activity, you could allow that couple to make their own future arrangements. That way the child does not suffer. This way, I fear that the rights of the child to income and support from the father—it is the father in all but 3 per cent of cases—are going to get lost in what I have to say is the department pursuing cost cutting rather than ensuring adequate support for children.
We know that regularly paid maintenance is not only good for children in the signal that it sends from fathers about being committed to their children’s lives, but that it can be the payment above all—all the Alan Marsh research shows this—that lifts a lone parent with a couple of children from below the poverty line to above it. It can be transforming. It is like privatised, old fashioned family credit if it is paid and paid regularly. It will be so paid only if it is established early, and that means through a statutory system in which good behaviour allows you to go on to the voluntary path. I very much fear that in going down the path not just of voluntarism but of trying to get rid of CMEC, which at least was trying very hard to ensure that money was paid to children, we will lose the real benefits that are available to children through the poverty objectives and we will be overcome by the structural problems of seeking to reduce costs. That is highly unfortunate.
Baroness Howe of Idlicote
My Lords, I apologise for not being here the whole time. I had to chair quite an important meeting on stalking, but that is another matter. I had not realised until just now that the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, to which I have put my name, is in this group.
Lord McKenzie of Luton
I thank the noble Lord, Lord Kirkwood, for introducing this group of amendments and acknowledge his long-standing interest and expertise in issues of child maintenance. Like him, I pay tribute to the staff of the CSA and CMEC who, over many years, have stuck with the various iterations of child maintenance that they have had to deal with and sometimes struggle with.
My noble friend Lady Hollis gave us a brief history of child maintenance. It is right that one of the problems and the reason why the first of these amendments in particular—I support them all—is so important is that along the way the CSA has sought to be different things and to achieve different objectives. In 1991, it was substantially focused on the clawback of benefit, so no benefit accrued to children. The 2004 amendments recast that and focused the CSA on child poverty in particular, but, as my noble friend said, it was stymied to a certain extent by not being able to make progress on the disregards. I defend the 2008 changes—noble Lords would not expect me to do otherwise—for a number of reasons. It potentially gets round the problem of those who do not want to pay by the assessment being on the gross income of the non-resident parent, which is obtainable from HMRC. That has not yet been implemented, but it was a key issue in stopping non-resident parents messing up the system, which is what happened to the two previous systems. Voluntary it might have been, but there was an absolute right for either parent to make use of the statutory system with charges, which we are going to come to, that did not deter people on low incomes.
Lord De Mauley
My Lords, it might be helpful, if noble Lords will allow, if I spend a little time setting the scene for this group and the next two groups of amendments. As noble Lords have mentioned, they are closely interrelated.
Let me say at the outset that one thing on which I am sure we can all agree is that the really vulnerable people in all this are the children. They are the people we most want to protect. I agree with the noble Lord, Lord McKenzie, and others who have made similar comments. It is our strong view that the best outcome for the children of separating parents is generally obtained when both parties can reach a voluntary agreement. Evidence from the Relationship Separation and Child Support Study in 2008 showed that more than half of CSA parents with care and nearly three-quarters of non-resident parents felt that they would be likely or very likely to make a family-based arrangement with help from a trained impartial adviser. So the central thrust of what we are trying to do is to establish a new system for reaching voluntary agreements. That system will work by providing parents with more information and support about how to establish an effective maintenance arrangement than they have had before.
Previously parents had to choose between the courts, the CSA, trying to work out how to set up a voluntary agreement or having no arrangement in place at all. All too often—in fact for half the children concerned—it has been the last of these. For the first time we will be offering real help to families to consider whether they can collaborate and establish a more effective family-based arrangement without heavy state involvement. We of course understand that reaching a voluntary agreement is not always going to be possible, although we think it could be achieved much more often than it is at present. Where it is simply not possible, there has to be a fallback option, and that will remain the statutory system.
The last Government introduced, through the Child Maintenance and Other Payments Act 2008—to which the noble Lord, Lord McKenzie, referred—the concept of charging, and we turn to this in more detail in the next group of amendments. I take this opportunity to say that we agree with the last Government that the concept of charging is acceptable, but if people are to be asked to pay they are entitled to ask for a better service. That is why we will radically improve the statutory system with a stronger, more reliable IT system and a strong suite of enforcement measures.
The first part of Amendment 113B seeks to place an objective on the Secretary of State through the provisions of the Child Support Act 1991 to maximise the number of effective maintenance arrangements for children who live apart from one or both parents. This is the current statutory objective of the Child Maintenance and Enforcement Commission. The commission also has a number of statutory functions, one of which is to provide the statutory service currently delivered by the CSA. When the commission is abolished, its functions will transfer to the Secretary of State exactly as they now stand. Its statutory objective will not, however, transfer to the Secretary of State as the objective was specific to the commission in a way that the functions are not. So the issue that noble Lords are raising is what will happen when the commission is abolished and its functions transfer to the Secretary of State.
The Government’s position is unequivocal, and I am glad to have this opportunity to reiterate for the record our commitment to the objective of maximising the number of effective maintenance arrangements for children who live apart from one or both parents. I hope that that satisfies my noble friend’s request for a strong assurance. When the delivery of functions has been given to an arm’s-length body, as is presently the case with the commission, then clearly good governance and clear accountability suggest setting the organisation an objective in statute against which it can be held to account. However, legislation is not necessary in order for the Secretary of State to work towards his own objective. The whole thrust of the Public Bodies Bill, of which the abolition of the commission is one instance, is to increase ministerial accountability.
Baroness Sherlock
I thank the Minister for explaining what will happen to the options service. I confess that I have had the opportunity to listen in to the options service in action in a previous role and, as I understand it at the moment, when a parent with care phones the options service to ask for advice and information, it would steer her towards making an arrangement—because that is the objective—but it would not try to steer her to make it in one direction or the other; it would give her the information she needed to make a choice. Is it the Government’s intention that these replacement services will steer that parent with care away from the statutory service and to another service, irrespective of whether the best interests of herself and her child might be served by it?
Lord De Mauley
No, my Lords. I shall come to that, if I may, in a moment.
The purpose of the “gateway” clause is to give all parents the opportunity fully to understand their range of choices and the support that is available to overcome barriers to family-based arrangements. It is in no way intended to prevent them accessing the statutory service if that is the best option for them. We simply want that to be a considered choice. Parents can come back to the statutory service at any time if a family- based arrangement does not work out.
The “gateway” will take the form of a telephone conversation with an agent who will simply explain the available maintenance choices to the prospective applicant and signpost them to any associated help they might need. At the end of that conversation, if the parent feels that the statutory service is the best option, they will be transferred to the statutory service to begin the application process. We will develop an analogous approach for parents wishing to apply online.
We are also aware that a variety of support services for separating families already exists in the voluntary and community sector. However, we all know that there is a multitude of complex issues to be addressed during separation and it can be difficult, especially at a time of distress, for parents to find the information and support that they need. The gateway will also help signpost parents to such support so that if, following the conversation with an agent, they decide that they want to try to establish a family-based arrangement, we can help them find the support they need to do so.
Lord McKenzie of Luton
Will the Minister explain the difference between what he has just described and the current options service, other than the related charges that come through? The charges will need to be explained before somebody can make an application but, apart from that, in terms of the support and information that are given, how does the new arrangement differ?
Lord De Mauley
I shall come back to that if I may.
With the right support in place to help parents collaborate better, more children will be able to benefit from effective family-based maintenance arrangements. Outcomes for children across a range of measures are almost always best when parents work together. We want to make it easier for parents to access support by ensuring that it is available in a more co-ordinated way.
We want the people who know families best to shape these plans. That is why we asked a steering group of academics and voluntary sector experts to help us develop proposals for better coordinating support at a local and national level and as to how most appropriately to measure success. I am pleased to be able to say that we will look to act on this advice and to commit increased funding as detailed proposals emerge. This could include, for example, a web portal or a helpline that would provide an entry point to the wide range of services which are already available but parents may not be aware of. The helpline might, for example, offer a “triage” conversation to help parents identify their priority issues and obstacles and then advise on how and where to get support on them. The web portal would provide a framework to help co-ordinate the wide variety of online services already available, ranging from interactive advice and support from experts to forums where parents can talk to others in the same situation to share learning and information. The steering group will also consider how best to co-ordinate face-to-face local services to offer help and support. We will also look to test which interventions are most effective in helping parents overcome any obstacles to collaboration. This will be critical in helping us to decide where best to direct funding.
Amendment 113D would appear to create a period within which the prospect of an application being made to the statutory service against the non-resident parent would act as a stimulus to the NRP to engage in conversation with the commission. The conversation would encourage the NRP to consider taking action towards a family-based arrangement. This is a welcome intention, but one drawback is that it would impose a delay on processing the application where there was no prospect of a family-based arrangement, which in turn would delay the flow of maintenance. The Government’s view is that it is preferable to get parents talking at an earlier stage in the separation process to maximise the chances of them acting collaboratively and to provide them with access to services that will help them overcome any barriers to doing this.
The commission also has the objective of promoting financial responsibility. It should not be only the threat of an application to the statutory service that forces non-resident parents to be mindful of their obligations. The commission will continue to work to produce the cultural change outlined in the Green Paper so that the statutory service is the last resort rather than the default option. This will not happen overnight but this rebalancing of approach away from state intervention to parental collaboration must be the right approach.
Amendment 113F would exempt existing CSA clients from the need to take reasonable steps before applying to the new statutory scheme. It is just as important that these parents consider the possibility of reaching a family-based arrangement as parents entering the child maintenance system for the first time, particularly as they will be treated as if they are making a fresh application. Research tells us that 51 per cent of CSA parents with care feel that they would be likely or very likely to make a family-based arrangement were they to receive the right help and support. In addition, many CSA clients were compelled to apply to the CSA as a condition of applying for benefit.
Therefore, it is surely right to give CSA client parents who feel that they can make an arrangement and who may have been required to use the CSA the scope to consider whether a family-based arrangement could work for them. I challenge the view that the only way to have an effective arrangement is to have the state manage it. That approach has been shown not to work. Our proposals will provide more support for family-based arrangements and more options for reaching effective arrangements.
My noble friend Lord Kirkwood asked about the costs of transition, which will be effected over a three-year period. Estimates of cost will accompany consultation on the regulations covering case closure and charging, which will set out the spending profiles. The policy has not been finalised, so costs have not yet been firmed up.
In the context of Amendment 113D, my noble friend Lady Tyler referred to there being no charge on the NRP, to which I will turn when we deal with the next group. The noble Lord, Lord McKenzie, asked how the gateway is different from options. The conversation is basically the same. The difference is that we would expect applicants to have the options conversation before applying to the statutory service. At present, they go straight to the CSA. Earlier, I mentioned that we want to make the statutory service more effective. He also asked whether there is capacity to cope with case closure and how support will be structured. Yes, there are no concerns about capacity and support will be structured along similar lines as CM options.
The noble Lord, Lord McKenzie, also asked whether the same fee structure would be applied generally and, if not, what it will be. There will be one application charge only. He asked whether there would be an appeals process, if I understood him correctly. I think there is no need for an appeals service because the gateway is simply a phone call. He asked whether, if access is denied, an individual can apply again. Yes, they can. He asked how soon they can get on the statutory scheme. The answer is immediately. He asked whether both parents need to interact with the gateway. No, it requires just one telephone call, which generally is from the parent with care but both parents are free to seek advice.
With that rather lengthy response, I hope that I can persuade the noble Lord not to press his amendment.
Lord Kirkwood of Kirkhope
I am sure that the Minister wants the Committee to make progress. I have to confess that I am disappointed that we have not been able to get a quantification of the costs for the maintenance and support system to which the Minister referred. If I have understood what he said— I will read his words carefully tomorrow, as I am sure we all will, and I am grateful for his reply—it looks to me as if we are going to get to Report stage and the later stages not knowing what investment and what timescale we will be dealing with in terms of the proposed support systems in this new iteration of the Child Support Agency. We still do not know whether the families and relationships funding scheme from the Department for Education will be replaced in 2013. That involves a substantial sum of money, £30 million. If we do not get at least £30 million and then some, it could be construed as an effective cut.
Lord Mackay of Clashfern
“( ) In section 6 of the Child Maintenance and Other Payments Act 2008 (provision to allow charging of fees by the Commission), after subsection (2) insert—
“(3) Nothing in regulations under subsection (1) shall impose a liability on a parent with care for the payment of fees to the Commission where that parent has taken all reasonable steps to establish whether it is possible or appropriate to make a maintenance agreement (within the meaning of section 9 of the Child Support Act 1991), and where, having taken all such reasonable steps, it is either not possible or not appropriate for the parent with care to do so.””
Lord Mackay of Clashfern
My Lords, in view of the Prime Minister’s speech, to which the noble Baronesses referred, I thought it right to write to him to give notice of the amendment which I am moving. I copied the letter to the Secretary of State, to Maria Miller and to my noble friend Lord Freud. I got a very substantial reply from Maria Miller quite recently, explaining to me first, that the Government’s point of view was to try to get people to reach agreement; secondly, that various improvements were to be made in the system for getting money off the recalcitrant parent; and thirdly, that the amounts likely to be charged to the parent in question in my amendment would be rather small. Unfortunately, on the main point the letter appeared to hold to the previous position, which is why I am moving this amendment.
So far as I am concerned, I am perfectly happy with an arrangement in which, in the words of the statute, before the commission or its substitute accepts a person as an applicant, the commission may,
“before accepting an application under those sections, require the applicant to take reasonable steps to establish whether it is possible or appropriate to make such an agreement”.
I am entirely in favour of that: the less that the CSA, or its successor, has to be used, the better.
Unfortunately, experience has shown that there are some people with an obligation to their children who are not willing to make such an arrangement. When I first became Lord Chancellor I distinctly remember receiving a number of heart-rending letters from people who had obtained decrees in the magistrates’ court and the defendant had disappeared. The people writing could not do anything about tracing the defendants. They did not have the necessary resources. It is difficult enough for a large international group to trace somebody who wants to hide. For a lady on her own—and usually it was a woman who was writing, although that does not necessarily follow—to try to find somebody who wants to hide from his obligations is an impossible task. That was one of the motivations I had in supporting, with my noble friend Lord Newton of Braintree, the 1991 Act which set the CSA on its rather troubled course.
The principle of it was perfectly reasonable. The only difficulty was to implement the full policy, because some additional policy considerations were put on to it, which made the formula and its application rather difficult. The situation we are in now is that the Government are supporting the view that, if possible, parents should reach agreement about their children. As I say, I entirely support that. It is the principle behind the Family Law Act 1996, which I was responsible for bringing to Parliament and which went on the statute book, but so far, as far as this part of it is concerned, remains unimplemented. I entirely agree with that. However, when a woman, as a typical example, has taken all reasonable steps and done all that she can to reach an agreement but cannot manage it, I do not agree that she should be charged by the CSA for her application. I entirely agree with the power given in the 2008 Act to require fees to be paid—that was perfectly reasonable and was to be done by regulation—but I want to make an exception to that power which would prevent fees being levied on a woman in the position I have just described. That is utterly unfair. If anyone is to pay for that, surely it should be the person who has caused the difficulty by trying to escape from his moral obligations. There is no question of the woman getting benefit from this—she is acting on behalf of her child.
In her letter, Maria Miller mentioned that they were raising the level of child support. So be it, but the last thing you would want to do with the enhanced level of child support—which, I assume, is considered necessary for the support of the child—is to use it to pay a fee to the CSA. I do not understand how this can be justified. It is purely a matter of justice and fairness and nothing else. It is a short point and very easy to state. With that, I move my amendment.
Lord Newton of Braintree
My Lords, I know other noble Lords have attached their name to this amendment but I crave the indulgence of the Committee for a few minutes. As my noble and learned friend Lord Mackay said, we were in cahoots on this 20 years ago. We are in cahoots on it today and I support him totally in what he has said and what he is proposing.
At one stage I thought it was a pity that this group of amendments had not been placed with the next group. I did not agree with everything that was said on the previous group, but I do not have the courage to say who I disagreed with and so I will keep my head down on that. I should like the Minister to explain to me sometime—not tonight—the overarching coalition philosophy that links the Public Bodies Bill proposition that Ministers should take all decisions and the NHS Bill philosophy which says that Ministers should take no decisions. He can think about that and come back to me at his leisure—which might be in about three years’ time.
I, too, am grateful to Gingerbread for some helpful briefing. I wish to cover some historical points, one of which indicates that I have some sympathy with one of the noble Baronesses facing me—namely, the noble Baroness, Lady Sherlock. My noble and learned friend has used characteristically more emollient language than I, but the original CSA proposals were made difficult by two things: one was that the Treasury wanted too much money out of it too soon; the second—and there have been echoes of this in the discussions today—was that the political classes, and I include myself in that, did not understand what they were dealing with.
There are four people in this Room who are former MPs—one of whom is in a Trappist position because she is the Deputy Chairman—my noble friend the former Member for the Cities of London and Westminster; my noble friend the former Member for—I forget what it was called but it was the Borders.
Lord Newton of Braintree
Yes. The noble Lord, Lord Wigley—he was lurking—and the noble Lord, Lord McAvoy. I am sorry. I had looked only at the Front Benches and included myself. They may care to chip in. If their experience was anything like mine when the CSA came into effect in 1992, for a lad who came from a middle-class 1930s family, it was a real eye opener. There are signs that one or two people who have been pontificating on the subject have not realised that this is a much more complicated world than they thought.
There are still those who seem to think that it is all a matter of feckless youths going out on a Saturday evening, or feckless male partners deserting women as single parents irresponsibly. It is hugely more complicated than that. I remember people coming to my surgeries who had children by multiple fathers and often did not know who they were, or were living in fear if they identified them. I seem to remember that Edwina Currie got into trouble for talking about a woman who had children by five different fathers. She made some critical comments. I do not know whether they went down well or not but they certainly struck a chord. We have to realise that it is much more complicated.
I have not too many more points to make. I share the general view articulated by my noble and learned friend, and earlier by the noble Baroness, Lady Tyler, that it is much better to come to an amicable arrangement. I probably ought to acknowledge that I have been divorced and I came to an entirely amicable arrangement with my ex-wife 25 years ago, or more. It ought to be possible and it was possible in my situation, but there are many situations in which it is not possible which I have already touched on, and to which my noble and learned friend has referred. The notion that such an arrangement was either feasible or reasonable to expect in some of the cases in my surgery, and no doubt in others in the mid-1990s, is to live in a dream world. It is totally ridiculous. The proposition that my noble and learned friend is getting at, that if it is not practicable, people should be charged for getting justice and reasonable support for their children, is bordering on the indefensible.
That is about all I want to say but a question was put into my mind by what the Minister said. If there is to be no appeal against these decisions, which on the basis of what he said will be Secretary of State decisions, what kind of world are we living in? Did he say that there will be no appeal system? That stirs up all the worries I explored last week—unsuccessfully in the event—about the Government’s attitude to administrative justice and fair dealing between the citizen and the state. That needs looking at again or we shall have more trouble. I know that the Minister cannot answer all these questions tonight but I hope that he will look at them, otherwise he will have big trouble on Report.
The Lord Bishop of Blackburn
My Lords, I am grateful to the noble and learned Lord for his amendment and for this group of amendments. Noble Lords will know that the Church of England has for many years keenly supported a just welfare system as one of the key building blocks of a civilised society. We have always been concerned to ensure that the welfare of children is maximised in any system of benefits and I believe that that must include times of economic challenge. Some noble Lords may know that in the consultation period we said that an effective and sensitive child maintenance system is one that should seek to help parents negotiate their parenting and financial responsibilities towards children. The system should also be operated in tandem with appropriate support services and not discourage people from using it by levying charges. If there are to be charges, surely those charges must apply only where parents can afford it and where maintenance is being paid. I have no difficulty over means testing if the end result is that the very poorest single parents will not face the £50 charge.
Baroness Howe of Idlicote
My Lords, I was more than happy to put my name to this amendment because the noble and learned Lord, Lord Mackay of Clashfern, seemed to be making the right point in this amendment. I am only sorry that my noble friend Lord Northbourne is not in his place because the important parenting responsibility of fathers is one of the areas which he has been pushing for years. As has been stressed, sadly, we are really talking about single parents, 97 per cent of whom are mothers, who are in this position. There was a hope that the citizenship classes which the previous Government introduced would be about your responsibilities to your future children, not about sorting out disputes between you and your own parents, and thinking that the responsibilities of parents ought to be shared.
I am not going to repeat everything that has been said, but I agree that it is wrong in principle to charge single parents, mainly women, who have no alternative, when the other parent refuses to pay maintenance. That is not only unjust; it is, as has already been said, indefensible.
Gingerbread has given us a considerable number of quotes. As the right reverend Prelate said, they are very moving. I shall end by quoting a letter that Gingerbread sent to me, for which I am grateful. The writer was clearly quite sympathetic, in theory, to the Government.
“While I can understand many of the government’s cuts and tax rises—a number of which will directly affect me—I cannot understand these proposals. If only you knew how driven single parents have to be to even apply to the CSA. When I first turned to the CSA five years ago I eventually gave up. It was in such hopeless disarray … Fortunately, a judge laid out maintenance in my divorce agreement and my ex-husband paid up. But two and half years ago he stopped paying and I was forced, with many misgivings, to turn to the CSA. Luckily for me it had been reorganised and was able to progress my claim second time around, although it still took months. When the payments finally started coming via the CSA—you cannot imagine the weight that was lifted off my shoulders. I finally felt I could plan ahead for school trips, clothes and other essentials. The relief has been immense. The truth is that the proposals will only penalise the children the CSA is meant to help. Women generally only turn to the CSA when they have exhausted all other avenues. It’s an act of desperation. Those in government who preach about mediation and private agreements mean well, but they have no idea how difficult some ex-partners can be—some years ago, I would never have believed it myself. My message to the government is this: you will be hurting the very people you are trying to help. And, I fear, partners who only receive small payments will just give up altogether. It will be their children who will suffer. For me it will mean the worry returns—I will have to cut back and I already know that negotiating with my husband is an impossible task. So I will face having money intended for my children taken from me by a government which I trusted to come to my aid, and incurring his wrath over the fees he in addition will have to pay”.
That says it all. It is sad indeed that, although so many of us around this table and outside, would agree “Yes, let’s get everybody to sort out their own arrangements if humanly possible”, there really are situations where it is not going to happen. Until we get education on early intervention going in the way that the noble Lord, Lord Northbourne, hoped that one day we would be able to encourage the Government to provide for, I fear that we are going to have to fight arrangements like this. It is with that that I happily endorse the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern.
Lord Wigley
My Lords, I support the noble and learned Lord, Lord Mackay of Clashfern, in what seems to be one of the most important amendments that have come before this Committee in our long hearings. If it is not successful tonight—and no assurance is given—I very much hope that we will return to it on the Floor of the House on Report.
As the noble Lord, Lord Newton, said, those of us who had to deal with some of the Child Support Agency cases in the 1990s will know how desperately searing they were. It was not just one or two, but dozens, and sometimes even hundreds. I used to try to sort out problems with the local officers, either in Caernarfon or in the office that was administering the CSA in north-west England. It came to the point where I started writing to the Minister about each case because I thought that was the only way in which the message would get home. Poverty was referred to a moment ago. If one quotes the figures for the difference between south-east England and other parts, the average GVA per head in Kensington and Chelsea is over nine times that in Anglesey, and that is an average figure. Within Anglesey, there will be poorer people, as of course there will be in Kensington and Chelsea. It does not really matter where they are; it is what they are suffering. We want a system that can be sympathetic towards them; we certainly do not want a system which prevents people making appeals when things are going wrong. It must be our responsibility as a Committee to get that sorted out; if we cannot, then it will be decided on the Floor of the House.
Lord Skelmersdale
My Lords, my noble and learned friend has produced a very cunning amendment indeed. It is cunning because it follows and detracts, just slightly, from the worst effects of the Government’s policy announcement. However, is the Government’s policy announcement the right one? Who is the sinner in this situation? It is the absent parent. My noble and learned friend is absolutely right that to fine the parent with care who has done everything possible to get to an agreement is quite wrong. The real sinner in all this is the absent parent. Surely the charges ought to be reflected on him and it ought to be for the state to chase him, which has always happened through the CMEC arrangements. That would be my preferred solution.
Baroness Sherlock
My Lords, I convey my thanks—and I suspect those of many other noble Lords around me—to the noble and learned Lord, Lord Mackay of Clashfern, for having brought this before the Committee and having done so in so eloquent, powerful and almost irrefutable a way.
I want to add only two things. One is a question to the Minister. We have talked a lot in this Committee about behavioural effects. I want to understand the point of this charging. If we think it through rationally for a moment, if the aim of the new system is to encourage absent parents to pay up, the logical thing to do would be to charge them if they do not. Why then would one charge the parent with care? The only possible reason to do that would be to deter them applying to the CSA in the first place, because as the noble and learned Lord, Lord Mackay, explained so clearly, the parent with care can do nothing to affect the outcome the Government say they want. Therefore to penalise her for failing to do so would obviously not be fair, so that cannot be the aim. Will the Government please explain to us what is the aim of charging the parent with care?
Lord Kirkwood of Kirkhope
My Lords, just for completeness I shall speak to Amendment 113E. I will be grateful if the Minister will respond to the prospect of, if everything else fails, having a waiver system for low-income families facing some of these fees. I want to know whether the Government have thought about this carefully and looked at the operational and other implementation arrangements that might be necessary. I look forward to the Minister’s response.
Baroness Tyler of Enfield
My Lords, I would like briefly to add a few comments to those that have been made so powerfully around this Committee. We have heard some moving quotes today, but the one I want to give is not from someone who has been part of this process as an end user but from Sir David Henshaw who, back in 2006, came up with the report that is often cited as being the genesis of the idea of charging. We have heard his name referred to on a number of occasions as his policy has been explained. Sir David Henshaw himself recognised the limits to charging when he said:
“I do not want to create a disincentive to use the service for those parents who have no other option for agreeing maintenance”.
We know, because DWP estimates tell us, that about half of all eligible families have no child maintenance arrangements at all. The danger is that even more children in poorer families will go without child maintenance as a result of the proposal to charge the parent with care. This is my final point, which I want to link to the one I made on the previous group of amendments. Not only will the children be worse off—we have heard some graphic and moving accounts of the real hardship that some children could be in—but more will grow up without a role model of a father who contributes, however modestly, to the cost of raising his own children.
Lord McKenzie of Luton
My Lords, like all noble Lords, I am indebted to the noble and learned Lord, Lord Mackay, for tabling the amendment. His being in tandem with the noble Lord, Lord Newton, is an irresistible combination. I do not envy the Minister having to reply.
There have been some powerful and moving contributions. I should start by putting clearly on the record where we are in relation to charging. It has been suggested that what the Government are bringing forward is just based on the previous Government’s proposals, but that is not so. It is absolutely correct to say that charging is permitted under the 2008 legislation, which is supported by the noble and learned Lord, Lord Mackay. But that is enabling legislation like so much of this Bill. It certainly did not envisage proposals such as those advanced by the coalition Government. It should be recognised of course that there were charging arrangements under the original 1991 legislation, but I believe that that was stopped in 1995 because the CSA was not delivering.
Our position on charging is clear. It is reflected in the White Paper entitled, A New System of Child Maintenance, dated December 2006. It cites in part what the noble Baroness, Lady Tyler, has just said and makes reference to Sir David Henshaw. Paragraph 5.48 states:
“We recognise the importance of having a charging regime that does not dissuade vulnerable and low-income parents with care from seeking maintenance in the first place. Therefore, the future charging regime will be based on three clear principles. First, that the charging structure should incentivise non-resident parents to meet their responsibilities. Second, that the clear burden of charging should fall on the non-resident parent and not the parent with care. Third, that cost recovery for C-MEC should never be prioritised above payment of outstanding debt for the parent with care”.
Those provisions were not debated particularly extensively when we considered the Bill in 2008, although there was some discussion. At that time, we made it clear that it was for CMEC to advise and recommend to Ministers the detail of any charging regime but that such advice would be subject to CMEC’s overarching objective of maximising the number of children benefiting from effective maintenance arrangements, a point made by my noble friend Lady Sherlock a short while ago.
Although the clear focus on any charging should be on the non-resident parent, CMEC was not precluded from considering a small application fee to both non-resident parents and parents with care where voluntary arrangements might be more effective for them. We also made it clear that any charging structure should not commence until the service was fit for purpose and that this would not be before the launch of the new scheme then planned for 2010, which I think is now planned for 2012.
The Government have proposed a range of charges, including an upfront application fee of £100, which would be reduced for parents on benefits, and an ongoing collection charge on both non-resident parents and parents with care. The latter would be avoided for each if maintenance direct were used. However, whether maintenance direct is a secure and sustainable method of payment is wholly dependent on the non-resident parent. The Government’s proposals for charging fall foul of our criteria in a number of respects. An upfront fee of £100 is bound to act as a deterrent for lower-income households. It is payable not only in circumstances where a voluntary arrangement might be possible but in circumstances where it is not, for whatever reasons. That seems highly likely to increase the prospect of circumstances where no maintenance arrangements are entered into. Penalising parents with care with a collection charge, which depends on the NRP acting responsibly, is wholly unjust. The proposals allow for a reduction in the case of those on benefits but there is no exemption. Neither is any relief proposed for the collection charge.
That is why we are fully supportive of the amendment in the name of the noble and learned Lord. In short, it states that there will be no fees charged to parents with care where they have taken all reasonable steps to enter into a maintenance arrangement and it is not possible or appropriate to do so. There may be a multiplicity of reasons why it is not possible or appropriate to do so, some of which are particularised in later amendments. My noble friend Lady Sherlock has just spoken to one, as indeed has the noble Lord, Lord Kirkwood. In such circumstances, the only prospect of obtaining arrangements is the statutory system. There should be no charge which precludes this, which is what the noble and learned Lord’s amendment seeks to secure.
Amendment 113E, in the name of the noble Lord, Lord Kirkwood, seeks to introduce a reduction or waiver of fees where the income of a parent falls below prescribed levels. We have already indicated why we consider an exemption to be appropriate, although we acknowledge that the scope of Clause 6 is already wide enough to accomplish this.
Amendment 113EA has been spoken to powerfully by my noble friend and sets down circumstances where voluntary arrangements would clearly be inappropriate. The Government, I am sure, will be sympathetic to this given that they already acknowledge that individuals experiencing domestic violence will by-pass their new gateway.
Government Amendment 114 prompts me to raise questions relating to issues of enforcement. Can the Minister give an update on the various measures contained in the 2008 Act, including the use of deduction-from-earnings orders; regular deductions from accounts; lump-sum deduction orders; orders preventing avoidance; administrative liability orders; disqualification for holding or obtaining travel authorisation; curfew orders; and disqualification from driving? Can he say which of these are in force? If it is about getting sensible arrangements, it is also about making sure that those people who are responsible non-resident parents meet their commitments. We put in place a raft of enforcement measures which should have facilitated that and I would be grateful for an update on their progress.
Lord De Mauley
My Lords, I start by addressing my noble and learned friend’s Amendment 113DA. This would exempt from any charges parents with care who have taken all reasonable steps to make an arrangement outside the statutory scheme. In the debate on the previous group of amendments I said that we are seeking to promote collaboration between parents and to encourage them to consider their child maintenance options instead of taking the statutory service as the default. Research shows that more than half of parents with care in the Child Support Agency say that it is likely that they could make a collaborative arrangement with the right advice and support. We believe that it is generally in people’s best interests to focus on developing family support services for separated parents to enable them to consider their options and access help in overcoming barriers to collaborating where this is possible.
The introduction of charging is fundamental to our reforms to encourage parents to consider their options. Of course, not every parent will be able to make a family-based arrangement and so some parents will need to use the new statutory scheme. We believe that it is reasonable to ask them to make a contribution to the cost of the service they receive. We have spent some time considering the issue of value for money in the context of an application and it is worth pointing out that the average yearly Child Support Agency maintenance award is around £1,800 and an average case can be expected to last nine years. This equates to more than £16,000 of child maintenance. It is also worth pointing out that, unlike the situation until quite recently—the noble Baroness, Lady Hollis, mentioned this in the debate on the last group of amendments and I pay tribute to the previous Government for changing it—the receipt of maintenance does not now result in a reduction in benefits. I can confirm that this will remain the case with universal credit. Every penny of maintenance received is on top of whatever benefits the recipient has qualified for.
Noble Lords will, I hope, be able to see that, in the long-term, making some contribution towards the cost of the application in order to expedite this will be a good deal for parents given the significant on going financial benefit of child maintenance and the support offered if there should be any cessation of payment.
The noble Baroness, Lady Sherlock, asked whether the application charge will be used to discourage people from using the service. No. Our aim is that where relationships break down, both parents continue to take responsibility for the welfare of their children. This includes collaboration on issues of finance and, where appropriate, on going involvement of both parents in their children’s lives. We feel that it is fair for those parents who use the statutory service to reprioritise some of their spending towards the cost of their application and ongoing maintenance collection.
Baroness Hollis of Heigham
Could I therefore ask the Minister a question to which his noble friend responded on a previous amendment? If he is making a power to impose charges, would he at the very least agree that it would be unwise—as well as indecent, as some of us might think—to introduce them for at least two years or so, until the new system has settled down?
Lord De Mauley
My Lords, I take the general point that they should not come in immediately. We are in fact proposing to introduce the new service and run it for six months before we introduce charges.
The behaviour that my noble friend’s specific amendment would take into account on the part of the applicant is consistent with one objective of the application charge—pursuing alternatives to the statutory service before applying to it—so in that sense it is consistent with our thinking. I would argue, though, that there would be difficulties in collecting hard evidence to show that a parent with care had taken reasonable steps without an inappropriate degree of intrusiveness. However, the amendment does focus our attention on the fundamental issue of access to the statutory service for those who need it.
Baroness Sherlock
The Minister thinks it will be very hard to get evidence as to how an applicant had made reasonable steps. New subsection (2A) of Section 9 of the Child Support Act 1991, as inserted by Clause 131(1), says:
“The Commission may, with a view to reducing the need for applications under sections 4 and 7 … take such steps as it considers appropriate”,
and,
“before accepting an application under those sections, require the applicant to take reasonable steps to establish whether it is possible or appropriate to make such an agreement”.
How does he propose to enforce that?
Lord De Mauley
I agree that that is a good question. The Government will accept that making a phone call to the gateway is taking reasonable steps.
I said earlier that I agreed with the last Government that it is acceptable to charge for the statutory system. I am, however, very sympathetic to the concerns that have been raised today and I have listened very carefully to noble Lords’ views. What is critical is the amount that the applicant is charged to access the service. Concerns have been raised about the figure that has been mentioned. The noble Baroness, Lady Lister of Burtersett, in the last debate, and the noble Lord, Lord McKenzie, in this debate, mentioned a figure of £100. Both of them suggested that that figure is too high. I sympathise with this view, so I undertake to the Committee to have discussions with my ministerial colleagues and to make that point very vigorously. I thank noble Lords for their contributions today because they will strengthen my hand in those discussions. I also remind noble Lords that we will also consult in due course on our charging levels and debate the regulations in Parliament.
Amendment 113E explores the idea of relating the waiver or reduction of fees to the level of a parent’s income. In a simple way, this is already built into the proposed application charges, with a different, lower rate for those applicants on benefit. Rather than attempt to build further complexity into the IT system, I would prefer, as I have said, to take another look at the overall level of the application charge.
I understand that the matter of an ongoing collection charge is also a concern. The right reverend Prelate the Bishop of Blackburn referred to this. I will take this opportunity to point out to noble Lords that such a charge will be incurred only if maintenance is actually being received; by definition, therefore, people will have to pay for a service only if it is working. I have explained some of the improvements that we plan to make to the service. I am sure noble Lords will agree that it badly needs improvement.
Furthermore, collection charges can be avoided at any time if maintenance direct is selected. The noble Baroness, Lady Sherlock, asked whether victims of domestic violence will pay collection charges. I will come back to victims of domestic violence in a moment, but in the context of collection charges I must say that I do not think it is unreasonable to levy a charge for a service. What is important is the quality of the service and the level of the charge. I hope that I have gone some way to demonstrating that the service will be an improvement on what it has been.
Turning to victims of domestic violence, I reiterate that, as outlined in the Green Paper, Strengthening Families, Promoting Parental Responsibility: the Future of Child Maintenance, we are committed to exempting victims of domestic violence from the application charge. I reiterate that we will honour this commitment. Victims of domestic violence will not have to pay an application charge and they will be fast tracked through the gateway. We accept that applicants who have been victims of domestic violence cannot be expected to make family-based arrangements and so should be exempt from the application charge. However, we do not think it is unreasonable that they should make a contribution, as I have just said, to the cost of the statutory service once they are in it.
To assist them wherever possible to move into maintenance direct and so avoid collection charges and recognising that applicants in these circumstances will not want to have direct dealings with their ex-partner, we are developing a payment support service so that payment can be made outside the collection service without the parent with care having to divulge any personal details to the non-resident parent.
The noble Baroness, Lady Sherlock, asked about the definition of domestic violence. The commission has been working with the Home Office, which has the lead on domestic violence across government. In 2004, the Home Office replaced the 14 previous definitions of domestic violence used across government with a single cross-government definition. We will, of course, be using that definition.
We are still considering how the parent with care can prove that they have been a victim of domestic violence, but I can assure noble Lords that what is designed will not be onerous or burdensome.
Finally, I turn to Amendment 114. In the current child maintenance schemes, the Government have the ability to collect child maintenance by deducting it directly from the benefits of non-resident parents, which is an effective method. The purpose of this amendment is to enable us to continue to do this upon the introduction of universal credit. The amendment will allow, where necessary, for deductions in respect of child maintenance to be made from a non-resident parent’s universal credit award.
We envisage allowing most non-resident parents in the new statutory scheme the opportunity to pay their child maintenance directly to the parent with care—that is maintenance direct, which most noble Lords are familiar with. This should mean that in most cases use of the collection service and deductions from universal credit will be necessary only if the non-resident parent fails to pay by this method. In the current scheme, the ability to make such deductions is limited to where the non-resident parent is liable for the flat rate of maintenance, which could potentially rule out this option for a significant proportion of universal credit claimants who could be liable to pay more. The amendment will remove that restriction.
The amendment also makes clear the position in relation to charging. In the new child maintenance scheme, it is proposed that ongoing collection charges are payable by non-resident parents on top of the maintenance due where it is necessary for the maintenance to be collected using the collection service. The amendment ensures that any charges payable by non-resident parents can also be deducted directly from their benefit payments or universal credit, where this is appropriate. It also allows arrears to be deducted.
My noble friend Lord Newton asked about the appeals system. I should clarify that when I said there was no appeal with the gateway, it is because no one will be stopped from applying to the statutory service, so there is nothing to appeal against. The parent with care just needs to make a phone call and will be granted access to the statutory service.
The noble Lord, Lord McKenzie, asked for an update on the powers taken in the 2008 Act. The Government remain committed to pursuing arrears and will continue to use all their expanded powers to this end while the Child Support Agency schemes remain open. We frequently use deductions from earnings orders, lump sum deductions and deductions from accounts. Parents who fail to pay now face tougher sanctions, including having money deducted directly from their bank account or having their home seized. Primary powers enable the Government administratively—without application to a court—to disqualify a non-resident parent from holding a driving licence or passport where we are of the opinion that the non-resident parent has wilfully refused or culpably neglected to pay child maintenance. These powers are not yet in force. Prior to any final decision being made to commence them, there would need to be public consultation on the detail of how they would work. If the noble Lord so wishes, I can write to him detailing exactly what powers we currently use and what we still plan to bring forward.
Lord McKenzie of Luton
That would be helpful, but could the Minister also indicate the extent to which those powers are going to be transferred to the Secretary of State?
Lord De Mauley
I shall include that in the letter I will send out. In the light of what I have said, I hope that I can persuade my noble and learned friend not to press his amendment.
Lord Mackay of Clashfern
This is Grand Committee and therefore there is no other option open to me at present. However, I must confess to not understanding how it is thought to be just that an absent father’s neglect of his obligations to his children should be paid for to any extent by the children, which is ultimately what it amounts to. That is unfair in principle. I raised it with the Prime Minister—I could go no higher than that—as going against his own speech. As has been said, that speech was very clear. As I understood it, the Fathers 4 Justice people were inclined to think that it was extreme, but I think that its kernel was entirely justified. I cannot see for the moment—I expect to remain of this view—that it is fair to charge the children when one of the parents neglects his or her responsibility. The other parent is left with the children, looking after them, I am sure, to the best of their ability. I cannot see why they should be charged once they have complied with the Government’s new condition of going to the CSA.
I accept entirely that that is a very useful condition and I think that it is very reasonable. However, once it has been complied with, I cannot see that the person who has complied with it should, on behalf of her children, be punished by having to pay. I have no option but to withdraw my amendment tonight, but I think the noble Lord will understand that unless some change of heart occurs, I may raise it again. I beg leave to withdraw the amendment.
Lord Kirkwood of Kirkhope
“(c) the non-resident parent has not agreed to collection arrangements by the Commission under subsection (2A)(a), but has subsequently failed to make full payment of any maintenance due to the parent with care by the date it was due to be paid.(2B) Where subsection (2A)(c) applies, the Commission shall forthwith (and within no more than seven days from the date of notification of non-payment by the parent with care) make arrangements under subsection (2)(a) for the collection of the child support maintenance payable.”
Lord Kirkwood of Kirkhope
My Lords, I still have the will and resolve to continue. Amendment 113G seeks to get fast access to the collection service when the non-resident parent fails to pay. I have a series of questions, which I hope the Minister will help us with, about what happens in these circumstances—they are clearly set out in the amendment—if the non-resident parent fails to pay. The suggestion is that the statutory system would kick in within a seven-day period. I think the Government accept that there could be a gap if that situation was not addressed with dispatch. Seven days might be too high a target to set by way of getting a quick response. Certainly there is concern that a gap, which could be as much as a month, would have a serious impact on the family’s circumstances. Indeed, the Work and Pensions Select Committee noted that,
“unpaid maintenance or late payments can have a devastating impact on parents with care and the wellbeing of their children”.
This amendment tries to identify the fact that there is a gap and tries to get the Government to think about ways of resolving it in order to protect children’s welfare.
I have three basic questions. How quickly does the Minister think that the commission will intervene in these circumstances? What verification of non-payment will they require, which is an important question? Finally, how will disputes be resolved where the non-resident parent argues that payment was made? They are not of the same order as the amendments with which we dealt earlier but it would give some assurance to colleagues if the Minister can say what the Government plan to do in these circumstances. I beg to move.
Lord McKenzie of Luton
My Lords, I will be brief in saying that we support the thrust of each of these amendments.
Lord De Mauley
My Lords, turning first to my noble friend’s Amendment 113G, the Government are determined to ensure that non-resident parents meet their child maintenance responsibilities. That is why we have already committed to bring cases into the collection service as soon as we have evidence that payment has not been made through maintenance direct. Where a parent with care informs us that payment has not been received and the non-resident parent is unable to provide evidence to the contrary, such as a bank statement showing credits to the parent with care’s account, we will swiftly move the case in to the collection service and act quickly to ensure payment is reinstated.
This could include the use of enforcement tools where necessary, such as deduction from earnings orders, where maintenance is deducted directly from an employed non-resident parent’s earnings, and deduction orders, which enable deductions to be made directly from a non-resident parent’s bank account. Where the parent with care alleges that further payments have been missed during the maintenance direct period and there is no evidence to the contrary, we will ensure that these arrears are also paid when we bring the case into the collection service. It is unacceptable for non-resident parents to neglect their child maintenance responsibilities and build up arrears, which the Government are determined to tackle. To that end we will take a more robust approach to collection and enforcement in the new scheme and will use all avenues available to us to ensure outstanding arrears are paid and new arrears are not allowed to accrue.
We will not give up on cases. Following the introduction of the new scheme, the commission will continue to pursue non-resident parents for any arrears of maintenance that they may owe, which will include arrears from the schemes currently in operation. Where arrears have been accrued prior to the introduction of charging, no charges will be payable by either party in relation to these amounts.
On victims of domestic violence, as raised under Amendment 113H, let me put it on the record that we are committed to ensuring that victims are protected. They will be fast tracked into the statutory scheme; they will not be expected to make a family-based arrangement; and will not be required pay an application charge. Clause 132 provides non-resident parents with the ability to choose to pay their child support maintenance by maintenance direct within the statutory scheme. When designing this provision we considered carefully how to protect victims of domestic violence. Therefore, we will provide a service to enable direct payments between the parties without the need for any direct contact to be made or any personal information to be disclosed. This will be known as the payment support service. We will also provide appropriate support to help clients to use this service effectively where necessary.
We believe that the provision of this service and the support we will provide to clients in using it will ensure that victims of domestic violence are able to use maintenance direct safely, without any risk of harm to the parent with care or the child. As I have explained, as soon as we have evidence that payment has not been received we will bring the case into the collection service and take appropriate action to re-establish payment. With that explanation, I hope that my noble friend will agree not to press his amendment.
Lord Kirkwood of Kirkhope
Perhaps my noble friend will expand on one detail. The amendment seeks an expeditious response within a seven-day period whereas the Government seem to be working to a four-week response time. Is there any way in which I can persuade the Minister to think about at least setting some targets? A month is a long time in a challenged household. It is a gap that we have identified and it will exist. These things will happen. I might be being too ambitious with seven days but my noble friend is being very complacent if he is sticking to 28 days.
Baroness Hollis of Heigham
I shall be brief. I have a question that we should have asked on the previous group of amendments. What moneys do the Government expect to collect as a result of the £100 fee?
Lord De Mauley
My Lords, in answer to my noble friend’s question, given the admonishment of my noble friend Lord Freud in an earlier debate I can hardly utter the word “target”. I do not know where he got the figure of 28 days from—it is not familiar to me—but I will answer his question in more detail in writing.
Will the noble Baroness repeat her question?
Baroness Hollis of Heigham
I was going through the impact analysis statement on the changes in CMEC and I cannot find the figures anywhere. We should have asked this on the previous group—it is our fault—but can the Minister tell us how much the Government expect to garner by way of the £100 charge?
Lord De Mauley
Given what I said in the debate on charging, I would prefer to write to the noble Baroness about that in due course.
Lord Kirkwood of Kirkhope
I am grateful to my noble friend for the offer of a letter and I am happy to withdraw the amendment on that basis.
The Deputy Chairman of Committees (Lord Geddes)
My Lords, there is a misprint in the Marshalled List. Amendment 114, which is to insert a new clause, clearly must be put after Clause 133.
Amendment 114
Lord Freud
“Recovery of child support maintenance by deduction from benefit
In section 43 of the Child Support Act 1991 (as substituted by the Child Support, Pensions and Social Security Act 2000), for subsections (1) and (2) there is substituted—“(1) The power of the Secretary of State to make regulations under section 5 of the Social Security Administration Act 1992 by virtue of subsection (1)(p) of that section may be exercised with a view to securing the making of payments in respect of child support maintenance by a non-resident parent.
(2) The reference in subsection (1) to the making of payments in respect of child support maintenance includes the recovery of—
(a) arrears of child support maintenance, and(b) fees payable under section 6 of the Child Maintenance and Other Payments Act 2008.””
The Deputy Chairman of Committees
Again, there is a technicality here in that Clause 136, on which the question will be that it stands part, has been grouped with Amendment 114B which, according to the instructions of 15 September, comes after Clause 136, so Clause 136 stand part cannot be grouped with that amendment. The question therefore is that Clause 136 stand part of the Bill.
The Deputy Chairman of Committees
My Lords, I apologise for my voice. I have nearly lost it.
Schedule 13 : Social Mobility and Child Poverty Commission
Amendment 114B
“( ) The Commission shall advise Ministers on how to eradicate child poverty within the UK.”
Baroness Hayter of Kentish Town
I am going to apologise because I think that I now stand between the Committee and what I gather is the custom that the Minister buys drinks for the whole Committee at the end.
Despite the late hour, this is a really important issue that needs raising, but I fear that because of the hour we may need to return to it later. The Child Poverty Act 2010, which established the Child Poverty Commission, was passed with cross-party support, and we believe that there is now similar support for the proposal to expand its remit to deal with social mobility, a move which the Opposition certainly welcome. However, we have serious concerns about what will happen to child poverty in the coming years. It has been mentioned several times in the Committee. The Institute for Fiscal Studies has predicted that the number of children in poverty, which had fallen to its lowest level for 25 years by the end of the previous Labour Government, will now under this Government rise to its highest rate since 1999-2000 by 2020, by which time one in four children will be poor, measured in relative terms.
I am going to raise the main points. The main point is the duty. The potential rise in child poverty over the coming years makes the work of this commission essential. The debate about its function—whether it is simply going to help count numbers or whether it is going to give advice about the impact of the numbers—is crucial. If we look at the role of the commission, one of the most important things has been the proposal that it should have a duty to advise Ministers, but this is now to be taken out. It will therefore have no duty to advise Ministers on the preparation of their strategy. It has meant that this is only the responsibility of government.
Surely the commission should not just look at technical issues around the measurement of poverty and social mobility, but should also look at advising on the results of that measurement—to advise the Government on its role. If it was only measuring it, the commission itself would neither attract a high level of membership nor would it be able to do its role properly. We therefore ask why should there not be a requirement that it advise Ministers on the policy itself? Also, how can it be that this commission could be put together without a requirement that people so appointed should be expert in its field? The final question is that it should have to have the ability to get its own research otherwise it would be dependent simply on research from the Government, which it is meant to be scrutinising. I beg to move.
Lord Freud
My Lords, I will speak first to Amendments 114B, 114C and 114D, which would require the Government to consult the commission on the development of child poverty strategy, and for the commission to provide advice to the Government on eradicating child poverty.
We believe that unelected public bodies should be established only in cases where there is a clear need for their role to be carried out by an arm's-length body rather than within government. The new commission, with its remit to objectively assess government progress towards improving social mobility and reducing child poverty, is just such a case. A commission established to provide advice is clearly not. There are already a variety of consultation mechanisms by which the Government can obtain independent advice on child poverty and social mobility policy. Indeed, the consultation on the current child poverty strategy received 280 responses. Moreover, it is a fundamental principle of this Government that Ministers are accountable for the policies and strategies they put forward. These amendments put this principle at risk. They offer a degree of scope for Ministers to shrug off responsibility for any lack of success of their strategy.
Amendment 114E requires that the Government publish a response to each of the commission’s reports. By giving the commission the power to publish annual reports, we are actively ensuring that progress on social mobility and child poverty remains a priority for government. The legislation requires that the commission reports be laid before Parliament, providing the opportunity for parliamentary debate.
Amendment 114F reintroduces the requirement from the original Child Poverty Act that the commission should have a particular balance of child poverty expertise. This requirement has been removed because it is clear that the new commission will require a different balance of expertise. It will monitor progress towards both reducing child poverty and improving social mobility, meeting the child poverty targets and implementing the child poverty strategy. I can assure you that Ministers are fully committed to creating a commission with the right combination of expertise. To ensure that this is the case, the recruitment process for all members of the commission, including the chair and the deputy chair, will be carried out in accordance with the code of practice of the Commissioner for Public Appointments.
Finally, Amendment 114G would give the commission the right to request Ministers to commission research on its behalf. It would also require Ministers to provide a reason if they decide not to meet the commission’s request. We do not believe that this provision is necessary. This is because the commission’s new role means that there will be no need for the commission to be able to access new research as it will not be responsible for developing new policy or strategy. Instead, the commission will produce annual progress reports, and we would expect the vast majority of the evidence needed to fulfil this role to already be available either in the public domain or from the Government. If the Government need more and need to access new research to fulfil their duties, the new legislation already enables Ministers to provide the commission with such resources,
“as the Minister may determine are required by the commission in the exercise of its functions”.
Baroness Hayter of Kentish Town
The noble and learned Lord withdrew his amendment and said that he had no choice in Grand Committee. Because of the time, I will also have to do that. We will come back on Report as we have not made the case, particularly about the duty and the need to respond to the annual report.
Can I just say that it has been one heck of a learning experience for me? This is the first Bill I have worked on, and I shall take a moment’s indulgence to thank our leader. Being led by my noble friend Lord McKenzie is an extraordinary experience. In addition to thanking the Minister for his incredible patience at times, through him I thank the Bill team. They have been here night after night, day after day. We have had written briefings but also oral briefings—probably a bit above and beyond the call of duty. We thank them for that. Having said that, I beg leave to withdraw the amendment.
Lord Freud
Lord Freud
“( ) section (Calculation of working tax credit) (calculation of working tax credit);”
“( ) Sections (Information-sharing between Secretary of State and DPP) and (Unlawful disclosure of information supplied to DPP) extend to England and Wales only.”
Lord Freud
“( ) section (Calculation of working tax credit) (calculation of working tax credit);”
House of Lords
ETA: Ceasefire
(13 years ago)
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Baroness O'Loan
To ask Her Majesty’s Government what action they are taking within the European Union to support the governments of Spain and France to secure peace following the declaration by ETA of a definitive cessation of all armed action.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, all EU member states including the United Kingdom agreed a statement at the October European Council welcoming ETA’s announcement of a definitive ceasefire as a victory for democracy and freedom and supporting Spain’s long struggle against terrorist violence. This is primarily a sovereign matter for Spain, but the UK Government would, of course, respond to any requests from Spain or France for further action.
Baroness O'Loan
My Lords, I thank the Minister for his helpful response. I declare my interest as a member of the International Contact Group on the Basque Country, which was present at last month’s international conference that culminated in the declaration by Kofi Annan and others calling on ETA for this definitive ceasefire. British Governments have had extensive experience. I ask the Minister, in the light of that experience in the conduct of dialogue leading to peace and in particular to normalisation and more beneficial outcomes for victims, as well as to decommissioning, verification and monitoring, will the British Government respond positively to this situation?
Lord Astor of Hever
My Lords, we have supported the Spanish and French Governments in their efforts to secure a peaceful and democratic future for the Basque Country, free of terrorism. Should we be asked for support, we would respond in any way that they would find helpful. We are aware of the work that the noble Baroness is doing as a member of the International Contact Group, and my noble friend Lord Howell is very grateful for her update last month.
Lord Alderdice
My Lords, given the increasing evidence that cities and regions coming out of conflict do so successfully only if they have continuing external support after the cessation of violence, and that indeed such support often comes best from other cities and regions that have gone through the same experience, would Her Majesty's Government encourage Bilbao and the Basque Country to join the Forum for Cities in Transition, which includes cities such as Kirkuk, Beirut, Mitrovica, Mostar and indeed Belfast and Derry and which will meet again in Kirkuk next year, in order that Bilbao and its region receive the best support from people who people who, like them, have been through such terrible times?
Lord Astor of Hever
My Lords, my noble friend makes a very good point. I am aware of the excellent work of the Forum for Cities in Transition and its help to other cities that have been in, or have emerged from, such conflict. This would be a matter for Bilbao, but I have no doubt that the Forum for Cities in Transition will be in touch with the Bilbao authorities.
Lord Anderson of Swansea
My Lords, are we just waiting for an invitation? Should we not positively seek an invitation? We at least are independent in a way that neither the French nor Spanish Governments are, and we have very considerable experience in Northern Ireland, which we have used very positively in reconciliation in South Africa.
Lord Astor of Hever
My Lords, the noble Lord makes a very good point. The situation is very fluid at the moment, with a new Government about to take power in Spain next month. We should wait and see how things turn out and then decide what to do. But it is essentially a sovereign matter for Spain.
Lord Brooke of Sutton Mandeville
My Lords, does my noble friend the Minister share my view that help is always defined better by the receiver than by the giver? Does he also recall the observation of CS Lewis, that if you hear about someone going around doing good to others, you can generally tell the others by their hunted look?
Lord Astor of Hever
My Lords, I shall certainly make a visit to the Library afterwards and have a look at that.
Gambling Commission: Health Lottery
Lord Faulkner of Worcester
To ask Her Majesty’s Government what assessment the Gambling Commission has undertaken of the contribution being made to good causes by the Health Lottery.
Baroness Garden of Frognal
My Lords, the Gambling Act 2005 requires that at least 20 per cent of the proceeds of a society lottery go to the good cause that it supports. Each of the 51 society lotteries that are promoted under the umbrella brand of the Health Lottery must comply with this requirement. We understand from the Health Lottery that 20.3 per cent of the proceeds of each individual society lottery will go to the relevant good cause, addressing health inequalities in specific geographic areas of Great Britain.
Lord Faulkner of Worcester
My Lords, may I ask the Minister two questions? First, is she aware of the great concern that has been expressed by the beneficiaries of legally run society lotteries in the health sector, which have benefited immensely from those local society lotteries, about what is seen as the unfair competition from the Health Lottery? Is she aware that the hospice movement is particularly alarmed, because it depends very heavily on society lotteries? In Worcester, for example, our two hospices receive £70,000 a year from the South Worcestershire Hospices Lottery, which pays 50p in the pound—not 20p in the pound—to those good causes.
Secondly, notwithstanding what the Gambling Commission may have decided initially about the Health Lottery’s legality, how can it be legal to have 51 community interest companies linked to the Health Lottery which have no independent existence, but which all have the same three directors and all operate out of the same virtual office? How is that legal?
Baroness Garden of Frognal
My Lords, the noble Lord has great expertise in these matters. In his first question, he raises the concern about the hospices. We share the concern about the potential impact on society lotteries, although a number of existing health-related charities have been supported through the Health Lottery arrangements so far, and we will ensure that the impact on other society lotteries is monitored.
On the noble Lord’s second question, about the legality, he will also be aware that compliance with the requirements of the Gambling Act 2005 is a matter for the Gambling Commission, which has issued the necessary licences for the Health Lottery. As with any major scheme entering the market, however, it will work with the operator to ensure that what is delivered is actually compliant. We expect initial findings from that monitoring to be with us by next March.
Lord Addington
My Lords, would my noble friend give some thought to the idea that charities which are created to allow a lottery to be organised might be against the spirit that was initially taken on in this field? If that is right, will she undertake that the Government might look at the whole legal framework? If it is against the spirit, we can change the rules.
Baroness Garden of Frognal
My noble friend makes a very valid point that, so far, the legality has been in the matter of the fact of the law. However, as I have mentioned, there will be ongoing monitoring and, as he so rightly says, all these things can be changed if it turns out that the spirit of the law is not being respected.
Lord Brooke of Alverthorpe
My Lords, are the Government content with the system that they have in place for monitoring the operations of the Gambling Commission and, if not, what can they do about it? Are they content that Mr Desmond is a fit and proper person, given what was said at the Leveson inquiry last week and the failure of his organisations to associate themselves with the independent press commission, and that this is the way forward given some of the issues which now surround the operation of this lottery?
Baroness Garden of Frognal
My Lords, as I say, it is for the Gambling Commission to look at this. We recognise all the issues around Mr Desmond and his other organisations, but those are not perhaps directly relevant to this. One thing that the Government have done is to merge the Gambling Commission and the National Lottery Commission, which we expect will make regulation easier and create cost savings but also help to produce a more robust form of monitoring.
Lord Collins of Highbury
My Lords, may I press the Minister on the issue of what I consider, as I think many would, an apparent loophole exploited by the Health Lottery with its 51 separate companies? Will she give an assurance that this loophole will be examined and perhaps closed by the Government, bearing in mind that the Health Lottery has a turnover of £510 million a year and is in effect an alternative national lottery, affecting funding not only for other health charities but for the arts in general?
Baroness Garden of Frognal
My Lords, the noble Lord raises an important point about the issue of whether the Health Lottery will impact on the National Lottery. We are well aware of the vast amount of good work that the National Lottery does for the arts and a whole range of charitable organisations in this country. This is the first time that a lottery has been set up in this mode, with 51 society lotteries under an umbrella. It is a new model, which is why we are looking to the Gambling Commission to report back to the Government on how it is going to operate. Of course, the Health Lottery has been going for only eight weeks so it is early days as yet to see how it will pan out, but I hope that the noble Lord will rest assured that the Government are monitoring the situation.
Lord Haskel
Following on from my noble friend Lord Faulkner’s question, should the Minister not be speaking up for those charities that give 50 per cent of their income rather than those that give only 20 per cent?
Baroness Garden of Frognal
My Lords, I am sorry if I was not speaking up loudly. One indeed commends the society lotteries that give on average 51 per cent to good causes overall, which is a much more significant proportion than 20 per cent. The question remains whether this will be a form of raising additional funding for good causes, and only time will tell whether that is the case.
Lord Harris of Haringey
My Lords, is it not the case that the public assume that a much higher proportion of the money that they put into these lotteries is going to the good cause concerned? Should the Government not be looking to raise the 20 per cent threshold to a more realistic figure? That may then squeeze out those who see setting up these lotteries as a way of making extra cash for themselves rather than for the charities that they are supposed to be supporting.
Baroness Garden of Frognal
My Lords, the raising of the threshold has been under discussion. We feel that at the moment, with the Health Lottery still so new, this is not the moment to change the thresholds for the lotteries as a whole. As I say, though, we are monitoring the situation since, as far as we are concerned, it is a new set-up in the lottery world. We shall wait and see, with the promise of a report of that monitoring early next year.
Lord Brooke of Sutton Mandeville
When I had the privilege of moving the Second Reading of the National Lottery etc. Bill in 1993, I gave way 28 times in the hour it took me to complete my speech. It was perfectly clear at that time that scrutiny of the lottery was being carried out extremely effectively by Parliament. I hope that the amount of time that we need to scrutinise this new development will be shorter rather than longer.
Baroness Garden of Frognal
I bow to my noble friend’s expertise over many years in this area. I share his hopes that the scrutiny will be shorter rather than longer.
Lord Faulkner of Worcester
If the Minister reads the prospectus of the Health Lottery, she will see that in order for it to meet its targets of paying money to the 51 community companies it will need to raise something in the order of £250 million a year from the British public. Where does she think that money is going to come from? Surely it will be from existing charity giving, existing society lotteries and the National Lottery.
Baroness Garden of Frognal
My Lords, this is one of the things that we shall need to look at. At the moment, the Health Lottery is raising £2 million to £3 million a week compared with the National Lottery which is raising somewhere between £150 million and £190 million a week. So the latter is still far and away the major source of public money in this area but, to pick up an earlier question, it is very important that the public are made aware of just how much of their money is going to good causes from the Health Lottery compared with how much goes to good causes from society lotteries and indeed the National Lottery.
Export Controls
Lord Alton of Liverpool
To ask Her Majesty’s Government what consideration they are giving to provisions concerning the export and re-export of arms and to the export of software or technologies that can be used against civilian populations.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, the Government have set out their position on the issue of re-export controls on a number of occasions. The Government do not believe that statutory extra-territorial controls on the re-export of UK-origin goods would add to the effectiveness of UK export licensing. On the second part of the Question, the Government take their export control responsibilities very seriously and do not license the export of controlled equipment where there is a clear risk that it could be used for internal repression or human rights abuses. We take any reports of exports being misused overseas very seriously, and the extent to which export controls should apply to surveillance equipment is something that the Government are considering actively, particularly in relation to Syria and Iran.
Lord Alton of Liverpool
My Lords, I thank the noble Baroness for that reply. Has she had the chance to read the testimony of the Iranian journalist Saeid Pourheyder, who was tortured and subjected to a mock execution? He had been identified by British surveillance technology allegedly sold to Iran by a company called Creativity Software. Will the Minister say what discussions her department had with officials from that company in 2009, and what was discussed during those meetings? Why was the 2010 European Union prohibition on all,
“equipment which might be applied to internal repression”,
in Iran not implemented in this case?
Baroness Wilcox
My Lords, 2009 was in the previous Government’s time, but I will look back to see if there is anything that I have missed. However, I can tell the noble Lord that at the moment, alongside our EU counterparts, we are supporting the progress of EU restrictions on surveillance software to Syria. All member states have agreed in principle to the prohibition on selling, supplying, transferring or exporting equipment to monitor the internet and telephone communications on mobile or fixed networks. However, surveillance technology is not controlled under our current export-licensing system as it has legitimate applications. For example, it allows companies operating in dangerous locations to monitor the location of staff, and parents to locate their children’s telephone if they are missing. So there are many legitimate uses for this technology. However, we are most certainly looking at it and will report back.
Baroness Falkner of Margravine
My Lords, is the Minister aware of the Foreign Secretary’s statement of 13 October, when he announced a proposal to introduce a mechanism to allow immediate licensing suspension of software and other export items to countries that are experiencing a sharp deterioration? In light of her answer about Creativity Software, have the Government had any discussions with the company since the Foreign Secretary’s statement on 13 October, with a view to suspending its ability to export these items?
Baroness Wilcox
I am afraid that, at the moment, all I know is that the company referred to is exporting quite legitimately, as far as we know. We do not know of any re-exporting involving that company, but certainly we are considering most actively the extent to which export controls should apply to surveillance equipment, particularly in relation to Syria and Iran.
Lord Teverson
My Lords, I think that most of us would agree with trying to stop arms exports that can be used for internal repression in countries that do not benefit from democracy. However, can the Minister explain which body, in this new technological world, actually decides which items can be used for internal repression and which cannot? This is surely a difficult area. How do the Government cope with that, and how do they decide on which side of the border a particular product lies?
Baroness Wilcox
My noble friend is quite right: this is very complicated. We live in a technological age that moves at enormously fast speed. We also do not wish to cause suffering to the innocent people of another country by restricting goods unless we absolutely have to and feel that it is right to do so. That is what we are doing at the moment. I wondered whether anybody would ask me where they could find out what is restricted and what is not. It is always very helpful to have this information. Trade data are available online at www.uktradeinfo.com if anybody would like to look that up. Information on export restrictions is available on the BIS website. It is the ministry of business that deals with this, which is why I am answering the Question.
Lord Dubs
What the Minister has said is welcome as far as it goes, and I fully understand the difficulties with surveillance technology, but I should like to ask her this. First, when does she think the Government will arrive at a firm decision on being more restrictive on the export of surveillance technology? Secondly, what about exporting to other countries which might then re-export to oppressive regimes? What can the Government do about that?
Baroness Wilcox
The Government do not want goods of UK origin to be re-exported for undesirable uses—of course not. However, the introduction of a statutory re-export control does not make our current export-licensing system more robust. We have talked this through with the European Union. The difficulty is that our law cannot be applied to another country to which something has been passed on. However, we make the questioning of anybody who is looking for an export licence from us very robust, particularly if it is for export to difficult countries, to make absolutely sure that we are clear about why they are doing it and where the goods are going. If, when they come back the next time, we discover that something has happened—that there has been a re-export—we will have an opportunity. However, it is most frustrating that we cannot do more. If anybody can come up with any other suggestion for us or the other members of the European Union, we will be only too happy to listen.
Lord Stevenson of Balmacara
My Lords, the tension that occurs between promoting commercial interests and seeking the improvement of human rights overseas is highlighted by the UK’s role as a major arms-exporting country. We also need to consider the role of government agencies in the support and promotion of arms sales. In its role as a supporter of UK growth, does BIS regularly analyse the industrial and economic benefits of MoD procurement decisions so that a proper cost-benefit analysis can take place? If not, why not? Can we expect to see such analyses being published?
Baroness Wilcox
I think that the answer is yes, it does—I am sure that it does. I will check to make absolutely sure, as I am sure that the noble Lord will ask me about this again otherwise. I will return to this with the information that he has asked for, if I may.
Lord Phillips of Sudbury
May I ask my noble friend what approach the Government adopt towards the export or re-export of arms or software to the Israeli army for potential use in Palestine?
Unemployment: Young People
(13 years ago)
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Lord Roberts of Llandudno
To ask Her Majesty’s Government whether they will appoint a Minister to deal specifically with youth unemployment.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, the Government have no intention of doing this. We already have a Minister for Employment who has a clear strategy and robust policies to support young people into work.
Lord Roberts of Llandudno
My Lords, I am sure we are grateful for the youth compact that was announced a few days ago and, wherever we sit in the House, wish it well in denting somewhat the 1 million young people who are looking for jobs. However, would it not be better to have one person with an overall view to look at the short-term and long-term problems of youth unemployment, and to co-ordinate the various departments and strands of policy that are affected by them?
Lord Freud
My Lords, youth unemployment, specifically, falls within the context of overall unemployment or employment. In practice, it is more important to have integrated support for people to get back into the employment market than across government for youth. In that area, we have the Social Justice Cabinet Committee, which looks at supporting society right across the piece, including youth.
Baroness Armstrong of Hill Top
My Lords, is the Minister aware how much the Government are failing many young people in the north-east? We have the highest rate of unemployment and of youth unemployment in the country. That part of the country is struggling to keep going. Given that the Government scrapped the Future Jobs Fund and the regional development agency, which was much engaged in these things, will the Minister give his personal commitment to look at what is going wrong in the north-east and to come up with specific answer for that region and those young people?
Lord Freud
My Lords, without just saying yes, I will give that commitment, I want to point out that despite a growing economy some real structural problems have existed in different regions over decades, and certainly over the past decade. There are no easy solutions, but I will follow up the request personally and look at some of these regional issues. We are spending a great deal of time worrying about this.
Lord Northbourne
Will the Minister indicate what proportion of the 1 million or so unemployed young people have families where neither the father nor the mother is in employment?
Lord Freud
My Lords, I have actually forgotten that particular number, though I did know it. I will commit to writing with the precise number, which has fallen out of my head. I am sorry.
The Lord Bishop of Liverpool
My Lords, the Bishops very much welcome the development of apprenticeship schemes. However, is the Minister aware that small businesses very often lose out on the major apprenticeship schemes? Is he aware of the Apprenticeship Training Agency in Liverpool that brings together the Chambers of Commerce, the city council and the colleges in providing apprenticeships for small and medium-sized enterprises? If so, would he like to replicate that model elsewhere?
Lord Freud
My Lords, the point about the involvement of small and medium-sized enterprises is a very good one. Last week, we announced a subsidy to enable small and medium-sized enterprises to take on an extra 20,000 apprenticeships with an incentive of £1,500 a time. One of the issues with SMEs is that they need to have comfort that they can go on employing an apprentice for a long time. That is the key issue to get SMEs back into this particular support.
Lord Cormack
My Lords, as there is a real danger of a generation growing up without hope, would my noble friend discuss with his ministerial colleagues the desirability of having some form of national social service which all young people can undertake when they leave school?
Lord Freud
My Lords, we are, as a priority, looking at how to help youngsters back into the workplace. That is what our youth contract, which was announced on Friday, is about. It is about trying to do the important things, which are work experience, apprenticeships and getting people work through a subsidy to employers.
Lord Strathclyde
My Lords, there will be time for both Peers if we have the noble Lord, Lord Davies, and then the noble Lord, Lord Walton.
Lord Davies of Coity
My Lords, more than 50 years ago, when I was serving my apprenticeship, the industrial training boards had a levy and grant system that ensured that all small and medium-sized businesses produced apprentices or paid the levy if those businesses poached skilled men from the big companies. Why should we not reintroduce that system?
Lord Freud
My Lords, we clearly need to rebuild the apprentice structure in this country—or at least build it, as was never particularly strong compared with countries such as Germany. We are very actively looking at how best to do that.
Lord Walton of Detchant
My Lords, to follow up the question of the noble Baroness, Lady Armstrong, is the Minister aware that the newspapers in the north-east reported over the weekend that properties to a value of £130 million owned by One North East, the regional development agency that is being abolished, are being sold and that the money derived from those sales will revert to the Treasury? Would not this money be better spent on doing something about youth unemployment in the north-east?
Lord Freud
My Lords, we have just announced putting in an extra £1 billion boost to youth unemployment and that money has to be found from somewhere. The Autumn Statement may be examined with great interest as regards how the money has been shuffled to get that support for youngsters, within an overall spending envelope that it is vital to maintain in order for us to keep low interest rates in this country.
Baroness Farrington of Ribbleton
My Lords, will the Minister go back to his Government and look at the question of education maintenance allowances? In the 1980s, under a Conservative Government and amid high youth unemployment, Lancashire County Council was one of the first areas to bring in education maintenance allowances. In high youth unemployment areas such as Skelmersdale, the staying-on rate for further education and training increased by more than 30 per cent. We in Lancashire were complimented by a predecessor Secretary of State, Sir Keith Joseph, who allowed us to create more tertiary colleges to do this. Why are the Government ignoring tried and tested policy?
Lord Freud
My Lords, there was about 90 per cent dead weight in EMA, and we replaced it with a bursary system on which we are spending £180 million. That started this September.
UK Border Security: 30 November
(13 years ago)
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Lord Dholakia
To ask Her Majesty’s Government what action they propose to take to ensure that the security of the United Kingdom is not compromised on 30 November.
Lord Dholakia
My Lords, I beg leave to ask a Question of which I have given private notice.
The Minister of State, Home Office (Lord Henley)
My Lords, the security of the UK border remains our top priority. Contingency plans are in place and we are satisfied that security will be maintained. We started training additional staff for contingency arrangements in April and adequate resources are now available. Any staff deployed to the front line will have received the training required to operate effectively. Arriving passengers will remain subject to checks at the border by appropriately trained staff.
Lord Dholakia
My Lords, will the Minister confirm that none of the checks highlighted in the recent controversy surrounding the UK Border Agency will be relaxed for the purpose of reducing queues at the point of entry? Given that the UK Border Force has many powers, as defined under the Police and Criminal Evidence Act, would a no-strike agreement with the force be appropriate on future occasions?
Lord Henley
My Lords, as regards the second part of my noble friend’s question, that is obviously something we would have to consider after 30 November and after we have seen how we manage on that day. But I can give my noble friend an assurance that none of the checks he mentioned will be relaxed.
Baroness Royall of Blaisdon
My Lords, the Government have sponsored speculation about what they will, may or might do to maintain UK security, especially at the borders, on 30 November—everything from bringing in the Army to the idea of staff from the Prime Minister’s Office manning passport control points. However, people need and deserve stability. If they have booked a holiday that day, they need to know whether they can get away. If businesses have important customers coming to the UK, they need to know that their businesses will not be damaged. I should therefore be grateful if the Government would publish, clearly and fully, for the benefit of the country as a whole, what in detail they intend to do on Wednesday in relation to border security.
Lord Henley
My Lords, I am very sorry that the noble Baroness the Leader of the Opposition did not take the opportunity to condemn the strikes that are taking place on Wednesday, which would have been helpful. If all parties agreed that those strikes should not happen we would not have this problem. We shall be operating the appropriate checks with the appropriate people, appropriately trained to make sure that visitors—whether they are coming here as tourists, whether they are coming here for business or whether they are returning UK citizens—can get in without any disruption or with disruption minimised as much as possible. The noble Baroness will also be aware that this is an operational matter and for security reasons it would not be appropriate to comment in detail, as she wishes, on the arrangements.
Lord Tomlinson
Will the Minister comment on reports in today’s press that part of the police force is being drafted in to take over the role of the UK Border Agency at our borders and that their training is alleged to be merely 90 minutes? Is that adequate?
Lord Henley
My Lords, I would not believe—and I would recommend that the noble Lord should not believe—everything I read in the press. I can assure him and the House that everyone assisting on this matter will have the appropriate training necessary to do the job. Yes, some police will be involved but they will have the appropriate training to do the job that they need to do.
Lord Campbell-Savours
My Lords, the Minister said that staff started training in April. What were they training for in April?
Lord Henley
My Lords, any sensible organisation, knowing there was a risk of such things happening—something which has still not been condemned by noble Lords opposite and I am waiting for that condemnation to occur—would make the appropriate arrangements. The border agency started that last April.
Lord Alderdice
My Lords, given that the security of our country is not just dependent on border security but that unfortunately there are risks internally within our United Kingdom, can the Minister reassure us there will be no diversion of security resources to the border checks that will in any way diminish the other security measures that are necessary internally?
Lord Henley
My Lords, I can give my noble friend that assurance and he is right to point out that it is not just the borders we need to look at. No concerns have been expressed by the police and others that any diversion to the borders will impair our security arrangements in other matters.
Lord Grocott
Given that the Minister has repeatedly asked people on this side of the House to talk in terms of condemnation, can we take it as read that the Government condemn the cleaners, the dinner ladies, the low-paid workers and those threatened with a weakening of their pension entitlements and an increase in their contributions? Is the Government’s position that they condemn these people for trying in any way to defend their position?
Lord Henley
My Lords, I condemn the strike as it affects our security and the arrangements we are having to make. That is the condemnation I am still waiting to hear from the party opposite.
Baroness Williams of Crosby
My Lords, can the Minister tell the House what assurances, if any, we have from schools about the protection of the safety of children, particularly when their parents are at work or may find it difficult to return from work because of the effects of the demonstration? Can he say whether there have been consultations with the Department for Education on this point?
Lord Henley
My Lords, I am not aware of any consultations with the Department for Education. I will certainly make inquiries and get back to my noble friend later this afternoon. I am sure there will have been discussions for the very reasons my noble friend raises.
Lord Davies of Coity
My Lords, the Minister has repeatedly referred to this side of the House not condemning the strike. What I want to ask him is this—can he give a categorical assurance that the motivation of the coalition Government is security and not strike breaking?
Lord Henley
My Lords, as I made clear in my original Answer, our first priority, our highest priority, our top priority is the security of the United Kingdom. If the noble Lord thinks that we are involved in strike breaking he should think again. We want to make sure that our borders are kept secure. We think that the unions are endangering that security by the actions they are taking. The offer is still open to talk to the Government and others and we wish they would take that up.
Lord Harris of Haringey
My Lords, of course our borders should be kept secure, but are the Government doing enough to negotiate with the unions on this point? Are the Government in fact making every effort to try to resolve this dispute rather than, as the Minister has told us, having been preparing since April for just this eventuality? Is it not that they actually wanted to provoke a strike, for whatever political reasons they may have?
Lord Henley
Come on, my Lords. The noble Lord knows perfectly well that the Government’s doors remain open and that the Government are prepared to negotiate. It is the unions who are being intransigent and it is the party opposite which is refusing to condemn an action that will possibly endanger our security. Because of the actions we have taken, and have been taking since April of this year, we think that we will be able to keep security at the appropriate level at the borders on Wednesday.
Lord Cormack
My Lords, is my noble friend not aware that most people in this country will be glad that the Government attach the highest priority to our national security?
Lord Henley
I am very grateful for the support of my noble friend. I wish I could get similar support from noble Lords opposite.
Baroness McIntosh of Hudnall
My Lords, given that the Minister is so fixated on the possibility of getting the kind of statement that he would like to hear from these Benches, does he imagine that the people out there who are contemplating going on strike are mostly or even to a small extent members of the party I support? I submit that not only are they not, they are members of all parties and none, and what is preoccupying them is not the question of whether the Labour Party supports them but their concern for their future pension rights.
Lord Henley
My Lords, the noble Baroness accuses me of being fixated on this issue and perhaps I am somewhat naive to be so fixated on this issue. I do not know in which way the members of the unions involved happen to vote. I happen to know that those unions support the party opposite. That is why we are still waiting for that condemnation from the party opposite.
Baroness Royall of Blaisdon
My Lords, does the Minister agree that any strike is a demonstration of failure? Does he further agree that the Government themselves have failed to resolve this strike?
Lord Henley
My Lords, I totally and utterly reject what the noble Baroness has said and again invite her, as the Leader of the Opposition in this House, to condemn this strike.
Procedure of the House
The Chairman of Committees
That the 9th Report from the Select Committee (HL Paper 226) be agreed to.
Motion agreed.
Parliamentary Constituencies and Assembly Electoral Regions (Wales) (Amendment) Order 2011
(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Wallace of Tankerness
That the draft order laid before the House on 24 October be approved.
Relevant documents: 31st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 22 November
Health and Social Care Bill
(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, before the House goes into Committee on the Health and Social Care Bill, I should like to take the opportunity to update noble Lords on the latest position with regard to the Department of Health risk registers. The House will recall that my department received a specific request under the Freedom of Information Act to release the transition risk register, which covers risks relating to the development and implementation of our health reforms. There was also a separate request to release the strategic risk register, which covers the most important risks the department faces.
We have taken the view that the information in both registers should be treated as exempt from disclosure under Section 35 of the Act on the grounds that the information contained in the risk registers is integral to government policy-making. Risk registers of this sort are a tool by which information about potential risks—both actual and theoretical—can be recorded in worst-case terms to enable them to be mitigated and managed. The Information Commissioner accepts that the information falls within this category of exemption. Following our decision not to release the registers, the two individuals who made the FOI requests lodged appeals with the Information Commissioner.
In early November, the Information Commissioner published his decision notices in both cases, deciding that the public interest lay, on balance, in full disclosure of both registers. Since then, as is allowed for under the rules, we have been considering whether we should appeal the Information Commissioner’s decisions. As I explained to the House previously, this was not a decision that the Department of Health could make on its own, as the issues which bear upon the decision have significant implications for every government department.
While the principle of openness is one to which we have adhered to the maximum extent through evidence given to the Health Select Committee in another place and the publication of impact assessments, it has been our firm view, and that of other departments, that for risk registers of this type to fulfil their function, civil servants must be free to think the unthinkable and record potential risks and mitigations fully, frankly and with absolute candour, confident in the knowledge that this information will not be publicly disclosed.
The logic of the Information Commissioner’s decision to order the release of information of this nature would entirely undermine the concept of safe space for these sorts of circumstances. The matter has accordingly been the subject of much careful consultation across Government, and a very clear and firm view has emerged that the publication of information in risk registers of this type would be likely, in the future, to undermine the very purpose for which a risk register of this sort is produced, and thus directly threaten the successful implementation of government policy. I can, therefore, tell the House that my department has decided to appeal both decisions by the Information Commissioner.
I would, however, like to respond to the request made on 16 November by the noble Baroness, Lady Thornton, by sharing with the House as much further information as I can about what my department’s transition risk register contains. On that occasion I undertook to examine whether there were any risks covered in the Department of Health transition risk register that are not already in the public domain and on which information could be provided without further ado.
While I cannot share the detailed breakdown of the information recorded in the risk register, or the wording, I am happy to set out for the record the broad issues covered by the transition risk register. They are as follows: how best to manage the parliamentary passage of the Bill and the potential impact of Royal Assent being delayed on the transition in the NHS; how to co-ordinate planning so that changes happen in a co-ordinated fashion while maintaining financial control; how to ensure that the NHS takes appropriate steps during organisational change to maintain and improve quality; how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively, including the risk of replicating what we already have; how to minimise disruption for staff and maintain morale during transition; how best to ensure financial control during transition, to minimise the costs of moving to a new system, and to ensure that the new system delivers future efficiencies; how to ensure that future commissioning plans are robust, and to maximise the capability of the future NHS Commissioning Board; how stakeholders should be engaged in developing and implementing the reforms; and finally, how to properly resource the teams responsible for implementing the changes. I hope that this information will prove useful to noble Lords as the Bill continues its passage in Committee.
Baroness Thornton
I thank the Minister for that statement, of which I did not have more than two minutes’ notice. It is very disappointing indeed. Basically, the noble Earl is saying that the Government are choosing what they do and do not disclose to the Committee on this matter. It is an issue of trust—whether or not we can trust that we will know what we need to know to make judgments about whether this Bill will work.
I thank the noble Earl for the issues that he has decided that the Government can let us know about, but of course I am therefore concerned about what the issues are that the Government have decided that we should not know about. What are the risks that we cannot know about? That is a matter of grave concern to the Committee.
I shall be looking in detail at the Minister’s statement to the House and I reserve the right to return to this matter if I feel that we need to. For example, during the last two days in Committee I put two direct questions to the Minister about whether certain matters—one concerning children—were on the risk register and what the register said about them. I have not received answers to either of those questions. I shall continue to put my questions in that context and I suggest that other noble Lords do the same.
I am very grateful for the Statement as far as it goes but I do not think that this is an end to the matter. I can see why the Government might think that there is a cross-government issue here. However, no other department is in the position in which we find ourselves here—that of discussing a Bill that is going through the House right now. We need full information on this matter in order to be able to make proper decisions but I believe that we still do not have that. Therefore, I thank the noble Earl so far as this goes but I reserve the right to return to the issue in due course.
Lord Campbell-Savours
Perhaps I may ask the Minister a question. He gave us a list of all the areas which he thought it was not possible for Parliament to scrutinise in some detail. Did the Information Commissioner have access to all the document headings to which the Minister has referred, and did he have the opportunity to read all the documentation under those headings? If the Information Commissioner did have access to information on, for example, the handling of the legislation as it goes through Parliament, why did he, throughout the whole report, repeatedly say that these matters should be placed in the public domain? Again, is it not clear that the Government are trying to hide something from Parliament? The Minister’s first reference was to the handling of the legislation by Parliament. Why should not Parliament see what considerations took place within the department concerning how legislation should be handled as it goes through this House?
Earl Howe
My Lords, my clear understanding is that the Information Commissioner had full access to the risk register so that he would be able to see for himself what it contained. I do not believe that anything material was withheld from him. The whole purpose of risk registers of this type is to record all risks, even the unthinkable and the highly unlikely actual risks, as well as potential risks—in other words, risks that may not arise in the future but which could be mitigated with action today. Such risk registers record mitigating actions so that the risks identified do not become a reality. In our clear view, exposing that kind of information could cause needless concern, set hares running and seriously undermine confidence in the programme of work. No Government of any persuasion have routinely made risk registers of this type public for the very reason that to do so would undermine open and frank discussion among policy-makers for fear that the policy would be made public before it was fully developed.
The department has published and discussed its proposals for reform at every stage of this process. It has debated them at length in both Houses. It has even released some detail about the associated risks and what it is doing to address these in impact assessments. Therefore, I firmly believe that the Committee has all the information that it needs to discuss the proposals in detail.
Baroness Williams of Crosby
My Lords, the Department of Health will be aware that with a freedom of information request there are always considerable burdens on those who argue that the information should not be conceded. Has the Minister given any thought to the possibility of a limited redaction of the report rather than not making it available at all, or alternatively whether there are parts of it that he feels could be made available so that the House can consider more deeply the issues that are coming up? I share the view of the noble Lord, Lord Campbell-Savours, that on the issue of how Parliament handles the legislation and the implications for the transition, certain things from the register might be useful, although I recognise that some extreme cases might be picked up by the tabloids and be changed into sensational reporting. Could the Minister possibly consider that qualification more seriously than we have been able to do so far?
Baroness Finlay of Llandaff
My Lords, I would be grateful if the Minister could let us know whether the department considered the BMA resolution in council at the end of last week to now oppose the Bill and campaign against it, when the BMA was coming to its decision to appeal against the release of the information. If not, will it be considered in the next steps the Government take, given that it signals a major loss of confidence in the Bill by the BMA?
Lord Stoddart of Swindon
How long is it likely to take for the appeal and the decision? If the decision disallows the appeal, will the Government accept that?
Lord Butler of Brockwell
My Lords, the problem is not what may be contained in a particular risk register, as the Minister has said, but the precedent that it sets for all other risk registers. There may be nothing in this register that is particularly sensational or has not been released. However, once this case is conceded it will nullify the effect of all risk registers across government. If people think these risk registers are valuable it must be the case, as the Minister has said, that people look at the worst risks and do so frankly, and if they make them anodyne then the purpose of the registers is entirely lost.
Lord Elton
My Lords, I hope that the noble Baroness, Lady Thornton, will remember those words when she is considering her next intervention on this matter. Bear in mind that what she says then will be taken as the yardstick of what any Government of her colour are expected to do when they eventually—one hopes at a great distance of time—take our place.
Lord Campbell-Savours
My Lords, I understand there is a precedent—a Department of Transport one. Therefore, there is a discretion and the Government are in a position on this occasion and not on a further one. I do not really see that that case is relevant.
Earl Howe
My Lords, I am very grateful to the noble Lord, Lord Butler, whose understanding of these matters is one that noble Lords will respect greatly. He is absolutely right—this is not an issue that solely affects the Department of Health: it affects all government departments. That is why the stance taken by the BMA to this Bill was not material in our decision. We regret that stance but it did not come into our thinking in any way.
On the question of precedent, I am aware that during the course of the last Government three separate recent requests were made to the Department of Health to release risk registers. All three requests were declined. I have the letter here that was sent when the right honourable Andy Burnham was Secretary of State, citing exactly the same kinds of reasons I have given.
I was asked how long the appeal would take. I do not know but my understanding is that the process should come to a conclusion reasonably early in the new year. I cannot be more definite than that because it is not up to us—it will be up to the tribunal to order its business as it sees fit. Will the Government accept the result? Clearly, we will have to take a view whatever the result; I cannot pre-empt the decision today. My noble friend Lady Williams asked whether we had considered releasing a redacted version—the decision before us was whether to comply with the Information Commissioner’s decision in full, or not to and appeal. We did not have the option of redaction but I am grateful to my noble friend for her suggestion, which I will take away and consider.
Lord Butler of Brockwell
“(5) In discharging its duty under subsection (1), the Board must publish guidance for clinical commissioning groups that includes the option to opt out and explains the extent of compliance with—
(a) the quality standards prepared by NICE under section 231 of the Health and Social Care Act 2011;(b) indicators included within the NHS Outcomes Framework; and(c) minimum standards set by the Board on patient related outcomes measures.”
The Lord Speaker (Baroness D'Souza)
My Lords, I advise the Committee that if the amendment is agreed to, Amendments 110 and 110ZA cannot be moved by reason of pre-emption.
Lord Butler of Brockwell
My Lords, with the agreement of the noble Lord, Lord Newton, I move Amendment 109A, which stands in my name and his. I can do so briefly, although the amendment is important and, I hope, helpful. I declare an interest as the chair of King's Health Partners, an academic health science centre. Part of the centre's mission is to accelerate the translation of research into patient care—getting a faster process from bench to bedside. It is in that capacity that I move the amendment.
The focus in the Bill on outcomes for patients is very welcome. It is also welcome that Clause 20 gives the Commissioning Board a duty to promote compliance with the quality standards prepared by NICE, as well as guidance published by the Secretary of State. There may be circumstances in which there are good local reasons why NHS providers should not comply with NICE guidelines. One such circumstance may be where there are innovative treatments that have been approved but with which NICE guidance has not yet caught up. We do not want the clause to stifle the introduction of such initiatives, which the creation of AHSCs is designed to promote and which are greatly in the interests of both British industry and patients. For this reason, Amendment 109A introduces an element of flexibility through a comply-or-explain regime. It will give providers the opportunity, in cases where there are good reasons why they should not comply with the NICE guidelines, to depart from them provided they can explain their non-compliance satisfactorily. That is all I need to say about the amendment. I beg to move.
Lord Newton of Braintree
My Lords, I chip in briefly in support of the amendment. I hasten to assure my noble friends on the Front Bench that this is a probing amendment and that I have no intention of pushing my luck. I have been so open and transparent as to share with the Minister every word of the briefing that I received and that led to the amendment. He knows what it is about. Therefore, I am looking for a measured, constructive and well informed response. I have no interests to declare except the public interest. The healthcare industry—the interests of which underlie the amendment—is important. It contains a lot of small and medium-sized enterprises of a potentially and actually very successful kind. We ought to encourage them, and I hope that the Minister will do his best.
Baroness Royall of Blaisdon
My Lords, I speak to Amendment 110ZA. In tabling the amendment and Amendment 343A, I was mindful of information from the Prostate Cancer Charity, which I strongly support, and from members of the Epilepsy Society. Of course I am aware that many other people with different chronic diseases, and those who care for them, are concerned about these issues.
As noble Lords are aware, prostate cancer is the most common cancer in men in the UK. In England, 30,000 men are diagnosed with it every year, and there are 215,000 men living with and beyond the disease. Ten thousand men die from prostate cancer every year. Currently, clinical nurse specialists for men with prostate cancer have to care for a worryingly high number of new patients compared to nurses for people with other common cancers. I am therefore worried that the financial pressures on the NHS and the cost of reform will threaten those already overstretched specialist nurses, who are so vital in driving up the quality of care for people with cancer.
Access to a clinical nurse specialist improves the experience of people with cancer at every stage of their journey and ensures that they have access to the vital support and information they need. This has been evidenced by the results of the 2010 National Cancer Patient Experience Survey. If patients are to have more control over decisions related to their care and report a good experience of care, they need the clinical and emotional support, information and expertise that a clinical nurse specialist can provide.
As the noble Earl will be aware from his association with the epilepsy organisations, NICE guidelines state that epilepsy specialist nurses should be an integral part of the medical team providing care to people with epilepsy. Even with investment made under my Government, 60 per cent of acute trusts and 64 per cent of primary care trusts did not have an epilepsy specialist nurse in 2009. SIGN guideline 70 states that,
“all epilepsy care teams should include an epilepsy specialist nurse”.
There are around 150 epilepsy specialist nurse posts, with a further 250 to 300 nurses who have undertaken training but are not in a role due to the shortage of posts.
As all noble Lords will be aware, specialist nurses save the NHS money by releasing consultants’ time, reducing A&E admissions, enhancing patients’ adherence to treatment and reducing the use of hospital beds. Therefore, I am proposing two amendments that would place duties on the NHS Commissioning Board to have regard to the continued access of patients to clinical specialist nurses. The first would support the board’s existing duty as to the improvement in quality of services and the second would create a new standalone duty. I trust the Minister will be able to accept my amendments.
Lord Walton of Detchant
My Lords, I rise to support Amendment 109A. There is no doubt at all that for many years now the work of the National Institute for Health and Clinical Excellence, NICE, has made a major contribution to the National Health Service. There is a widespread feeling in the public at large that NICE deals with nothing other than whether or not to recommend the approval of certain drugs for the treatment of disease within the NHS. However, NICE’s commitment spreads much more widely than that. It examines procedures; it examines complicated interventions of all kinds; it examines the introduction of new and innovative techniques, new instruments and other procedures in the NHS. Its remit is exceptionally wide.
I know full well that the noble Lord, Lord Newton, says he is not going to pursue this amendment to a vote, but it is important that we have some assurances from the Minister. As my noble friend Lord Butler says, it is clear that, although NICE guidance in general terms is something with which health authorities and health bodies of all kinds will be expected to comply, there are clearly circumstances, particularly at a local level, where, for the reasons he gave, such compliance would be inappropriate. The amendment takes full note of that as being an important issue.
However, we must be sure, in implementing the recommendations of NICE, that we do not overlook the crucial importance of ensuring that the national Commissioning Board will have a duty to promote innovation in its annual report. It is also crucially important, when we come to look at innovation tariffs much later, in Amendment 288H, to see that the tariffs system will not act as a counterincentive to the adoption of innovation and of new technologies. These are issues upon which it is important to seek assurances from the Minister.
Perhaps I may also add to what the noble Baroness, Lady Royall, said. The work of specialist nurses is extraordinarily important to the NHS, and not least in my own field of neurology, where nurses who are specialised in multiple sclerosis, Parkinsonism, epilepsy and many other conditions have made an outstanding contribution to the clinical care of patients. In many instances, their work and advice have prevented unnecessary admissions to acute wards of patients suffering from these conditions. They are invaluable. Unfortunately, over the past five or six years, we have identified instances where cash-strapped health bodies of various kinds have diverted some of these specialist nurses into standard nursing care. I hope that the Minister can give us an assurance that the role of specialist nurses in the NHS is going to be enshrined in the Bill and that the Government will recognise that such nurses are there for a special purpose, not to provide general nursing care in hospital wards and out-patient departments.
Baroness Cumberlege
My Lords, I have tabled three amendments in this grouping: Amendments 110C, 131A and 190C. I am grateful to the noble Lord, Lord Patel, for supporting the amendments because they concern maternity services, and I do not think I could have anyone more distinguished than the past president of the Royal College of Obstetricians and Gynaecologists, although of course the noble Lord is also involved in many other things, not least this Bill. These are probing amendments, the first of which seeks a commitment from my noble friend the Minister that the Government, through commissioning at the national and the local level, will give women and their partners real and informed choice in maternity services. The second amendment would ensure that there is less variation in the quality of services provided, and the third concerns maternity networks, including independent midwives.
The variation in maternity services across the country is quite startling. Sometimes the poor performance is a reflection of a lack of resources or priorities, but one of the reasons for this is that maternity services have been overwhelmed by the rising number of births, including more complex cases. This is partly due to the increase in the number of older women giving birth. Last year the number of women giving birth aged over 40 was the highest since 1948, the post-war period, and we can surmise about that. In the past 10 years in England, the number of births overall has risen by 22 per cent, which means that more than 10,000 extra babies are born every month. There has been a modest increase in midwives, and we should be grateful for that, but they are being run ragged by this record-breaking baby boom.
The Bill seeks to ensure that the quality of NHS services will improve by using new and increasingly much more sophisticated commissioning systems. If this key objective is to be realised, it will require commissioning of a very high quality. Pathfinder clinical commissioning groups are beginning to get a grip and to understand the health needs of their local populations, but inevitably others will lag behind and we will see variations in commissioning. One of the ways to address this is through a NICE quality standard, as already discussed by the noble Lord, Lord Butler, and my noble friend Lord Newton. But as the noble Lord, Lord Walton, said, even when these standards are produced, advice from NICE is not always adhered to, and I understand that the queue for these quality standards to be produced is very long, with maternity services some way down the line.
On quality, proposed new Clause 13E(1) states that the NHS Commissioning Board should improve the quality of services in three areas: prevention, diagnosis and the treatment of illness. On prevention, however powerful the board is, it is going to find it a real task to prevent wanted pregnancies—even Solomon in all his glory failed to do that, and he knew quite a bit about babies. On diagnosis, I do not think there is much problem in diagnosing pregnancy, as it is usually pretty obvious to those concerned. On the treatment of illness, certainly most women who are pregnant are not ill; on the contrary, many take enormous care of themselves and are extremely fit and so will not need treatment for illness.
Looking at those three criteria in that subsection, I think that they do not fit with maternity services. Therefore, we have a lacuna, which I am trying to fill with my first amendment. I suggest that the Commissioning Board keep a watchful eye on the situation in England and use a means—possibly a specification or some other mechanism—which would act as a guide to enable commissioners to buy services from NHS trusts at a set quality, until NICE has produced its quality standards.
My second amendment concerns choice. I apologise because I think it has been positioned rather wrongly in the Bill, but it is another probing amendment.
“Pregnancy is a long and very special journey for a woman. It is a journey of dramatic physical, psychological and social change; of becoming a mother, of redefining family relationships and taking on the long-term responsibility for caring and cherishing a new-born child. Generations of women have travelled the same route, but each journey is unique”.
I wrote that in the foreword for Changing Childbirth, which was a government policy document that I produced many years ago. It is because each journey is unique that women and their partners should have as much choice as possible, because we know choice is empowering. Giving birth can be wonderful, but it is also very traumatic and the start to a new life can have long-term consequences for the baby as it enters childhood and later adult life.
New Clause 13I, places a duty on the board to enable patients to make choices in the services they receive. Pregnant women and their partners have four main choices when considering where to give birth: at home, in a free-standing midwifery unit, in a midwife-led unit situated alongside a hospital or in a hospital led by a team of obstetricians. This is the theory, but it does not actually work in practice. Delivered with Care, a national survey of women’s experiences of maternity care in 2010, undertaken by two very respected researchers in the field, found:
“Many women (80 %) were not aware of the four possible options for … birth”.
Therefore, how can potential parents choose when they are not even aware of the options? Why do health workers, especially GPs, seeing a woman at the first booking, not tell them what is available? The majority only tell them where to go, and that is hospital.
In a joint statement the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, in their introduction to a paper on home births state:
“The rate of home births within the UK remains low at approximately 2%, but it is believed that if women had true choice the rate would be around 8-10%”.
It is part of government policy to give choice, including birth at home, to every pregnant woman. In Somerset 11.4 per cent of births are at home, whereas in Wansbeck the figure is just 0.1 per cent. Of course there may be a range of factors affecting this—I suspect housing and other conditions also play a part—but this discrepancy is so great that I am sure it is partly due to the fact that mothers were not even told what was available. I would like to ask the Minister how he sees the NHS Commissioning Board addressing its duty in new Clause 13I as to patient choice in maternity services. I appreciate this is quite a minority sport so the Minister may like to write to me on this issue.
My third amendment concerns maternity networks. Neonatal and cancer networks, where they work well, have proved to be highly effective. It is a model that those in maternity services wish to adopt. They believe that effective, inclusive and supported maternity networks have the potential to ensure that all women, within the network locality, are able to access the full range of services from pre-conception to early years. The networks would be able to promote choice within these services and work with all providers to ensure that women are offered and are able to exercise informed choice. The existing networks have received funding for their infrastructure, which has enabled them to be effective. Will my noble friend consider a similar commitment from the Government to support the development and sustainability of maternity provider networks and ensure that they are properly resourced?
Part of the network should be the care offered by independent midwives, who give a highly specialised and personalised service, accompanying the family through this wonderful but often stressful time in their lives. There are around 130 independent midwives in the country, but there are about 800 who would choose to work in this way if they could get professional indemnity insurance. Currently that is not the case because of market failure to provide for it.
The EU Council of Ministers has issued a directive on patients’ rights on cross-border healthcare that requires member states to ensure that systems of professional liability insurance are in place for treatment provided on their territory. The Government ratified this directive on 28 February this year, which means that all midwives in independent practice in the UK will need to be able to access this insurance from September 2013 in order to be registered with their regulatory body, the NMC. Without registration, they will not be able to practise midwifery legally; independent midwifery will disappear, unless a solution to the insurance conundrum is found. Can we really afford to let this happen when the maternity services are in such desperate need of experienced, skilled midwives?
The clock is ticking and the issue is urgent. I ask my noble friend, who is well aware of this difficult issue—we have met in the past to discuss it—to tell me when the Government are planning to publish their proposals and when independent midwives and other non-NHS bodies will be able to take up the NHS clinical indemnity arrangements planned for by the Government.
Lord Mawson
My Lords, I rise to support Amendment 131A proposed by the noble Baroness, Lady Cumberlege. My wife and I have three children and have experienced some choice as to whether they were born at home or in hospital. I must admit that this was not a matter to which my wife and I had given a great deal of thought when we had our first child 31 years ago. Then we naively assumed that having a child in hospital was fine and the normal practice. The doctor would look after us. However, the truth is that it was far from normal for a young married couple. We discovered later that everything that was done seemed to be focused not on the well-being of the patient—my wife and child; some would say the customers—but on the interests and timetable of the consultant. Medication was given that was not really needed to ensure that the child was born to fit some preordained hospital schedule, a timetable that I think had more to do with the consultant’s golfing schedule, I discovered later, than the interests of the mother and child. The experience left some scars.
Our second child was born at home in Tower Hamlets, under a new home birth scheme that was quite radical at the time and which was set up by Dr Wendy Savage. I must say that this experience was completely different. We all felt so much more relaxed and in charge of events, as best you can be on such occasions. It all happened rather quickly and in a relaxed atmosphere and was an experience of great joy for us all. The effects of this experience on mother and child, with a competent midwife present, were quite different. I must say that even I felt quite competent in making the tea. The first experience in hospital had all been about a culture of illness at the most important moment of parents’ lives; the latter was about health and well-being.
Baroness Thornton
My Lords, perhaps I may speak to the amendments in this group which are in my name. First, Amendment 110A concerns NICE guidelines and is very much like that tabled by the noble Lords, Lord Newton and Lord Butler. In fact, theirs may be even better than mine so I intend to say no more than that we are interested in the Minister exploring this issue, because those noble Lords both more than adequately covered the points that need to be made in that regard. I am also very pleased to support the amendments in the name of my noble friend Lady Royall and to put my name to those, because the role of specialist nurses is extremely important.
Amendments 118, 119 and 120 concern the duty of the board to reduce inequalities. Proposed new Section 13G of the 2006 Act states that the board must,
“have regard to the need to—
(a) reduce inequalities between patients with respect to their ability to access health services;
(b) reduce inequalities between patients with respect to the outcomes achieved for them by the
provision of health services”.
This seems a rather narrow definition concerned solely with health services, which I assume flows from the continual and overriding responsibility of the Secretary of State for tackling health inequalities. I would be grateful if the noble Earl could confirm to the Committee how the Secretary of State intends to tackle health inequalities—what information he will need, where he will get it from and how those decisions will then be moved through the proposed structures of the National Health Service Commissioning Board, the CCGs and so on.
Surely, the health and well-being boards would want to have some involvement from the NHS on health inequalities, so Amendment 118 seeks to ensure that the board has health inequalities in its remit. I particularly refer the Minister to the letter from the NHS Future Forum to the Secretary of State on 17 November where it devoted much attention to the NHS role in improving public health and made its claim that the NHS must design its services in a way that both promotes good health and prevents poor outcomes. It is thus important that the legislation provides sufficient leeway to allow the NHS Commissioning Board to do this and that legislation relating to health inequalities is not confined solely to the provision and commissioning of services.
What is also important, in coming to my Amendment 119, is that funding to the clinical commissioning group reflects the deprivation levels within its area. Can the Minister tell the Committee whether there has been a risk assessment on the issues of funding? What risks has the department found that go with the levels of funding that might be made available on the basis of deprivation levels within areas?
Of course, the decision of the Secretary of State not to make clinical commissioning groups area-based is a serious problem in ensuring a population base for commissioning, but it will be doubly important to ensure that clinical commissioning groups with large numbers of deprived patients receive financial support. I would be grateful if the Minister could spell out the intended principles behind the funding associated with clinical commissioning groups.
On Amendments 110B, 127ZA and 190AA, which concern maternity services, the noble Baroness, Lady Cumberlege, has adequately covered the major concerns about those services and we would be keen to support her amendments. I am grateful to the Royal College of Midwives for its briefing on these amendments. My only questions are about maternity networks and the recognition of their potential contribution to the type of maternity care and providing clinical commissioners with expert guidance and advice on driving up standards.
The Committee will be very pleased to hear that I do not intend to share any birthing stories. On the other hand, I am concerned. Without a national standard for maternity services, how will the new commissioning arrangements avoid significant variations? We know, for example, that there is a significant variation between trusts in the number of home births that take place. We can explore the reasons for that, but I would like to know how the new structures would deal with such variations and how that would be reflected in the work of the National Health Service Commissioning Board.
Baroness Williams of Crosby
My Lords, I have Amendment 112 and 113 in this group. I have a comment regarding the excellent speech of the noble Baroness, Lady Cumberlege, and would like the Minister to reply to it. NICE has suggested that all women expecting babies could have the right to consider the possibility of a caesarean birth. Before the choice is finally made, will that be associated with advice from doctors indicating that caesarean births are certainly not as straightforward as some people believe them to be, and for cosmetic reasons may be deeply regretted afterwards? I was a little worried that NICE had given this green light, as it were, to caesarean births without associating it with any form of counselling to the mothers concerned, not least because, as many people in this House will know, the outcomes in terms of morbidity and infant mortality are not as good as people imagine them to be in comparison with a normal birth. Perhaps the Minister could say something about that. Perhaps the noble Baroness, Lady Cumberlege, could also say something about it when she responds on her useful and important amendments, to which I hope the House will give an extremely warm welcome.
Amendments 112 and 113 are about strengthening the language about health inequalities. On that issue, we have had a helpful letter from the noble Earl, Lord Howe, dated 24 November, in which he sets out in detail some of the steps that will be taken, not least the creation of the Institute of Health Equity, to deal with health inequalities. My question is rather a big one but it boils down to the old problem of how one ensures that these worthy and excellent intentions are actually carried out.
The House will remember that new Section 13F of the 2006 Act proposed in Clause 20, which deals with the autonomy of clinical commissioning groups from the Commissioning Board and restricts the board’s actions in terms of having to bear that autonomy in mind, was put into a different set of considerations—the consideration of the whole of the responsibility of the Secretary of State and the responsibilities of the boards—under the headings of Clauses 4 and 10.
All of this means that we are still debating these issues without being clear about where responsibility for them ultimately lies. I do not propose to go over that ground again, but it is appropriate for this debate to notice that the whole set of duties that are laid out in detail—and to which this debate will undoubtedly add as it lays down further duties for clinical commissioning groups and the board as a whole—in a sense therefore depends upon the outcome of those discussions about the constitutional structure. That matters because we need to bear it in mind all the way through our consideration of the duties that are laid upon clinical commissioning groups.
What makes me, to be honest, even more concerned is that I recently read the discussion paper The NHS: Developing Commissioning Support, which was quite improperly, no doubt, leaked on the internet. My attention was drawn to it by a couple of doctors who had access to the internet. The paper sets out in detail the ultimate objective of moving towards a commercial market in the health service and sets it out under a considerable number of different headings. For example, there is a specific mention in this report that,
“Clinical commissioning groups will have a statutory freedom to secure the commissioning support from wherever they want”.
It goes on to say that the commissioning support should be given in a vibrant, commercial market. What worries me about all this is that I am not at all clear—and never have been in our long debate on health—about what the ultimate goal is. I suspect that we are discussing two things at the same time. One is the attempt to keep improving the existing NHS, sometimes by an extraordinary degree of micromanagement—from this House, I have to say. The other is the determination of many people in this House to ensure the safety and continuation of the NHS which is free at the point of need and which is available to people regardless of their ability to pay. Somewhere along the line and at some point, we really have to be clear what we are talking about. I do not know whether others taking part in this debate share my sense that we are walking in without knowing the constitutional responsibilities and quite where we are going.
I commend my two amendments. They both strengthen the words on equality of health outcomes. I congratulate the Government very much on establishing the Institute of Health Equity and carrying forward the detailed research we are now doing on lifestyles and many other things, which are important and which I am sure the whole House will applaud. However, I have to raise the big question about destinations. I hope that at some point before we abandon the Committee stage, we will have a clearer view about the Government’s ultimate destination: whether it is to retain an NHS; whether it is to make it more open to innovation and other contributions from the private sector, with which many of us would certainly not disagree; or whether the ultimate outcome is to move towards a commercial market system, this being essentially a transitional stage.
Lord Turnberg
My Lords, this is a disparate group of amendments. I support a number of them. Some seem to be counter to others, but I hope that they will come together at some point. Amendment 110A seeks to strengthen the need to take into account the guidance from NICE. From time to time, NICE faces someone complaining about the way it goes about its business. Sometimes patient groups suggest that it is taking its time or is working against their best interests. The pharmaceutical industry complains from time to time that it takes too long and maybe gets things wrong—perhaps that is a good thing on behalf of NICE. Others complain about the methodology that NICE uses, using QALYs—quality-adjusted life years—as its measure of whether a drug or treatment is effective. Despite all that, I believe that NICE does a marvellous job, as do many who know what it does. It makes sure that the suggestion of treatments is based on clear, independent evidence of their effectiveness. Its approval is something of a kitemark for the standards that GPs and PCTs should follow and the system is envied across the world. There are others trying to emulate NICE.
Baroness Finlay of Llandaff
My Lords, I have put my name to several of the amendments in this group—namely, Amendments 112, 113, 115, 186, 187 and 189—all of which are aimed at reducing inequalities. The noble Baroness, Lady Williams, has spoken about this. I will not repeat her arguments, other than simply to say that my reason for adding my name to these amendments was that it struck me that the words “act with a view to reducing inequalities” were not strong enough. Unless commissioning must have regard to the need to reduce inequalities, we will not improve the health of the nation.
Perhaps I may make a comment on Amendment 109A, which is a probing amendment and refers to NICE. I just want to place on record other areas of standard-establishment, such as the National Prescribing Centre and the audits and independent service reviews that are undertaken by the medical royal colleges. These are available and can be very informative. The service accreditation standards that they have produced are aimed at driving the equality improvement agenda and draw to the attention of the Commissioning Board and clinical commissioning groups the role of audits and the information that they can receive from audits, which are intended to drive up equality and reduce inequalities in service provision.
I also have in my name Amendment 299C, which seems to be almost an orphan amendment in this group but is there. It relates to private work. My reason for tabling it is that for a long time there has been confusion over what is private and what is NHS. The Bill also highlights a complexity about what is private and what is third-sector provision. Until now, third-sector services outside the NHS have generally tended to be lumped together in regulation. We will be facing different models in the non-NHS sector ranging from for-profit, through not-for-profit, to the voluntary sector as we know it today. One of the difficulties is making sure that patients are not recruited into the private practice of an individual who sees them during an NHS consultation. The fine balance between information-giving and recruiting should be clarified in guidance. Patients may ask what the waiting time is and whether they could have their intervention, investigation or whatever done more quickly if they went privately. I am concerned that the way the information is given may skew the patient’s perception of it and the patient can then feel they actually ought to go privately. This may be for the profit of that individual practitioner but not necessarily make a great deal of difference to the clinical outcome of the patient.
It is, therefore, a very difficult and fine line, but unless we begin to address it now, we will run into the same problems as we have had, for example, with top-up payments, where we had a lot of debates leading to the establishment of the Cancer Drugs Fund across the UK. We will be facing the same situation, but more so, with many other drugs that come along for non-cancer diseases. The new biologics are very powerful drugs which can be extremely effective but are extremely expensive. I am concerned that a commissioning group might decide that one of these new biologic drugs, even though it goes through all the benchmarking standards required, is something they are just not going to pay for locally. Private sector provision will, therefore, be driving patients who cannot afford to access these treatments, who are not privately insured, and whose quality of life is so severely undermined by their illness—because it is only for severe disease that these drugs are indicated—that they will not be able to work or earn without accessing them. They could therefore find themselves in a double bind.
My amendment is, of course, a probing amendment and I would not intend it to be anything more. If the Minister does not want to respond to these points today, I would nevertheless urge him at least to consider them in the guidance produced for the Commissioning Board and providers on the interface between the public and private sectors.
Lord Newton of Braintree
As this is Committee stage, I hope my noble friends will forgive me if I play Oliver Twist and seek a small second bite. I promise to be brief and make only three points. The first picks up on maternity and the remarks of the noble Lord, Lord Mawson, about consultants versus patients, if I may put it that way. I remember, in the far-off days when I used to sign 18th birthday cards to prospective or actual constituents, noticing a remarkable bunching. If you checked back 18 years you would find a correlation with Fridays and particularly the period in the run-up to a bank holiday. Secondly, nobody else has followed up the amendment of the noble Baroness, Lady Royall, about specialist nurses. I have an interest to declare here as—there are probably other things as well—president of the Braintree Parkinson’s Disease Society and the Braintree Multiple Sclerosis Society. The importance of specialist nurses in some of these areas is both extremely great and underestimated. I hope that we will therefore not lose sight of the point made by the noble Baroness, Lady Royall, in her amendment, supported by the noble Baroness, Lady Thornton.
Thirdly, to assure the noble Lord, Lord Walton—who I thought was at one stage going to accuse me of being a wimp for not pressing this to a vote—I do not rule out returning to the matter on Report, unless the Minister is really nice to me.
Lord Patel
My Lords, I shall speak to several amendments to which I have put my name, but I shall start with the amendment of the noble Baroness, Lady Cumberlege, to which I have also put my name. The noble Baroness is well placed to talk about maternity services. She has championed their cause, particularly regarding choice, for nearly two decades. It is she who should be credited for getting us to where we are now, whereby choice of where to have their babies is available to all would-be mothers.
The noble Baroness covered most points, and I support them all. The one on which I should like to expand relates to maternity networks. It appears that both the Prime Minister and the Department of Health have accepted that maternity networks are the way to improve maternity services, and I agree. Maternity networks have the potential to increase clinician involvement and service-user engagement in the planning, delivery and, where necessary, reorganisation of services. They also have the advantage of being able to scrutinise the performance and outcomes of all maternity providers within the network, thereby helping to drive up standards and reduce unwarranted variations in outcomes. This will help to develop shared services across the network. Thus a home birth service provided by a modern maternity unit could be made available to maternity units in areas where the home birth rate is very low.
I know that a current review of clinical networks is being undertaken for the Commissioning Board, and is due to report soon. Perhaps the noble Earl can tell us more about it. I hope that the review recommends that maternity networks be established to cover all maternity services in England. The concern is that if providers are expected to self-fund networks, there is a risk that some providers, especially foundation trusts, will not engage in networks, thereby reducing their effectiveness. For this reason, I hope that the Government will accept the case for providing some funding and support for maternity networks in the same way as neonatal networks and cancer networks have been able to access central funding and support.
One other issue that will improve the quality of maternity services, no matter where that care is delivered, is the establishment of maternity dashboards. They are a good way of auditing the outcomes on a daily basis and establishing whether the clinical guidelines have been achieved. I therefore strongly support the noble Baroness’s amendment.
The amendment in the name of the noble Lords, Lord Newton of Braintree and Lord Butler of Brockwell, is saying “comply or explain”, whereby if you do not comply with NICE guidelines you must explain why. I agree. Not all standards should be complied with, because there may be reasons why they are not. If you do not comply, you have to explain why. However, you also have to explain why the outcome for patients will be the same or better, because if the outcomes through not complying are not the same or better, you should not be allowed to fail to comply.
I understand that there might be good reasons why certain NHS bodies do not comply. Another way could be the establishment of an alternative compliance system in which organisations and clinicians are required to justify why they have not complied with the standards or, for that matter, innovations that will aid delivery of the best clinical practice. The Commissioning Board, in conjunction with senates and by way of patient pathways, could develop a compliance regime that measures, monitors and incentivises the use of innovation or compliance where these will improve standards of care. So I support the proposal, and I know that we might return later to the issue that my noble friend Lord Walton raised about innovation, tariffs and the innovation tariff. That is the other side of the coin regarding non-compliance and going beyond the standard of care laid down by NICE.
Lord Marks of Henley-on-Thames
My Lords, I start by adding my support for the amendments that change the duty to reduce inequalities by strengthening the wording from having “regard to the need” to reduce such inequalities to “acting with a view” to reducing such inequalities. Those are Amendments 112 and 113, in relation to the board, and Amendments 186 and 187 in relation to clinical commissioning groups. I do not want to add a great deal to what the noble Baroness, Lady Finlay, said in that regard, except merely to observe that the commitment to reducing health inequalities in the Bill is one of its great advantages and will be one of the great advantages and achievements of the legislation, if it is passed. I suggest that saying it loud and clear and imposing the stronger duty on the board and the Secretary of State would be the better way to achieve it.
I want to address the other amendments to which I have put my name, Amendments 153ZZA and 153ZZB, which concern the permitted disclosures of information by the board in proposed new Section 13Z2 on page 24 of the Bill. It is important to observe that the starting point for this clause is proposed new subsection (2):
“This provision has effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure”.
This proposed new subsection is about permitting disclosures by the board of information whose disclosure would otherwise be unlawful, which from the wording I take to include any disclosures that would be actionable either in tort or in contract. My concern is about how far this provision would sanction a breach of confidentiality owed to patients or others.
Most of the examples or circumstances outlined in proposed new subsection (1) are anodyne or obviously called for. The first, for instance, is that the information is already in the public domain; the second is where the disclosure has to be made pursuant to regulations, and so forth. However, the amendments are concerned with two sets of circumstances that are, I would suggest, entirely too wide. The first is under paragraph (d), where the suggestion is that disclosure should be permitted where,
“the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual”.
As drafted, paragraph (d) is without regard to the wishes of the individual concerned or, in the case of an individual suffering from incapacity, to that individual’s care. I would suggest that that smacks of a certain arrogance that ignores the rights of the individual to choose whether information about him or her is released by the board. It is for that reason that our amendment suggests that the words,
“and is made with the agreement of that individual or of a person having legal responsibility for that individual’s care”,
should be placed as a qualification to the unfettered right to disclose based on the board’s view of what is,
“necessary or expedient for the purposes of protecting the welfare of”
that individual.
The second area where we say that the disclosure provision is far too wide is under paragraph (f), which suggests that disclosure should be permitted where,
“the disclosure is made for the purpose of facilitating the exercise of any of the Board’s functions”.
That permissive subsection would give the board an overall right to disclose any information it chose, notwithstanding that it was otherwise unlawful, on the basis that it was,
“made for the purpose of facilitating the exercise of any of the Board’s functions”.
It does not even go so far as to say that it would have to be necessary for the exercise of those functions. In the view of those of us who have put our names to this amendment, those lines should go. They are an unwarranted intrusion into the confidentiality of the individual, and they give far too wide a discretion to disclose information whose disclosure would otherwise be unlawful.
Lord Harris of Haringey
This is an extraordinarily wide group of amendments—I think there are 27 in this group. I sympathise—well, almost sympathise—with the Minister in terms of how he will respond to them.
I wish to comment on just three of the amendments. The first is Amendment 144, which the noble Lord, Lord Patel, has just spoken to, about the importance of sharing information collected on the safety of services provided by the health service. Particularly in the context of what I think we will see as a fragmentation of the service, where a pattern becomes apparent that suggests that particular practices or processes challenge patient safety, it is important that that information is disseminated.
Lord Marks of Henley-on-Thames
If the Minister were inclined to concede our amendment, subject to a proviso dealing with emergencies of the sort that the noble Lord has suggested might be important, would that meet his objection to the amendment?
Lord Harris of Haringey
No, the reason being that it may not be an emergency situation; it may be that an individual is being passed from one agency to another. The point at issue is a risk and the mitigation of that risk. The risk may be that an assessment has been done suggesting that a person is at risk of suicide. They may well not commit suicide; there may well not be an emergency; or there may well be things that the receiving agency can do which will reduce that risk. However, there is no emergency so there would not be circumstances in which you could say it is in response to a particular situation; it is to avoid a situation arising. I am sure that there could be a form of words which would both deal with the concerns the noble Lord has highlighted and permit the sensible passing on of information to safeguard the right to life of that individual. I do not think Amendment 153ZZA quite deals with that point, and the Minister may want to respond to that when we get to that stage.
The final amendment I wish to speak to, very briefly, is Amendment 299C in the name of the noble Baroness, Lady Finlay of Llandaff. I, too, think it is extremely important that NHS services explicitly in the Bill must not use NHS business to recruit private patient business. In a context where again we will see the fragmentation of services, the arrival of all sorts of new providers and the possible blurring of distinctions between NHS provision and that provided privately by NHS practitioners, this needs to be made explicit. It is already an issue. I will cite my personal experience. The last but one time I visited my general practitioner—I think it was the first time for some five years—he declined to make the referral for secondary care I wished to have, saying that I probably had not looked after myself as well as I should have done, but then he pushed across the table a card advertising his Chinese medicine service. I thought that was extremely inappropriate—disregarding whether it was an appropriate treatment; as far as I am concerned it is non-evidence-based medicine.
Under any circumstances for there to be a blurring of the NHS responsibility of a practitioner and their private concerns seems extremely dubious. It is important it is made explicit that this is not permitted. In a previous series of exchanges the noble Earl has said it is quite clear what should happen under those circumstances. However, it does happen and what is permitted becomes increasingly confused. Even if medical practitioners are not abusing their position, or there is no blurring of those lines and everyone has been quite proper, it is perfectly feasible that patients will be confused and will not be clear as to what is happening, and that will colour future relationships they have with people providing medical services to them. It certainly coloured my relationship with that GP because on the last occasion I saw him I was extremely dubious about receiving any advice from him. I confess I referred to him as being patronising. This was perhaps inappropriate; it was certainly unwise as he was about to perform a rectal examination. None the less, it certainly coloured the relationship we had. In the interests of both patients and medical practitioners the amendment of the noble Baroness, Lady Finlay of Llandaff, should be in the Bill.
Lord Warner
My Lords, I do not intend to follow that in a similar style. I support Amendment 144 in the name of the noble Lord, Lord Patel, to which I have added my name. I do not want to go over the ground covered by the noble Lord, Lord Patel, but I just wish to share with the Minister in particular and the House in general my own experience from introducing near-miss reporting in the NHS when the National Patient Safety Agency was established. In those good old days the figure was around 800,000 a year. The current figure, as my noble friend Lord Patel said, is of the order of 3,000 a day; it is on an upward incline.
The issue at stake in those days was not the principle of trying in effect to copy the airline industry and improve safety by having people come clean about near misses—some very serious, some less serious. No one disputed the merits of trying to learn from those experiences. Where everybody got a little concerned was around the making public of the information. I will not delight the House with some of the discussions that took place in Richmond House about whether the first lot of information should be made available, because who knew what the Daily Mail would do with it? Noble Lords will be pleased to know that the Daily Mail behaved in a predictable manner and ran screaming banner headlines about how near to death 800,000 people came each year.
The important point was that one was beginning to change the culture of the NHS, which knew that the information was being put in the public arena. The problem with the Bill is that it leaves to the board the decision about how to disseminate information. We as citizens would be better off putting in the Bill the specific organisations to which the information should be disseminated—which is what the amendment of the noble Lord, Lord Patel, does. I strongly support it and hope that the Minister will give it very careful consideration, and will carry on the publication and dissemination of the information on an agreed basis.
I will make a couple of remarks in response to the concerns expressed by the noble Baroness, Lady Williams, about a market in commissioning skills. I have no particular wish to promote a market in commissioning skills. However, as a former Minister responsible for the performance of primary care trusts, I say that many trusts seriously lacked commissioning skills. These were lacking particularly in areas such as collecting information, analysing it and using it to establish need and to procure services to meet those needs. We should not in the Bill do anything to limit the ability of the new clinical commissioning groups to receive and acquire the skills to enable them to do their job effectively, wherever the skills may be located. That is a very important part of introducing successful new arrangements for clinical commissioning.
I pray in aid of that approach the history of Dr Foster. The dear old NHS had been collecting data for decades but was unable to use them effectively to improve performance. It took an outsider coming in—Dr Foster—to use the information and turn it into something that was useful to the NHS in terms of improving its performance. We should not be too hung up on precisely where clinical commissioning groups get their skills from to do their job.
Baroness Thornton
My Lords, I forgot to speak to my Amendment 137A. I will make three points. The first is not about my amendment. I say how much I agree with the noble Baroness, Lady Williams, on the issues that are the subject of all the amendments to Clause 20, and of the debate and discussions that we are having in the Chamber and outside it about the mandate. I also say to the noble Lord, Lord Marks, and my noble friend Lord Harris that there is clearly an issue about information and confidentiality that must be addressed before the Bill leaves the House.
I will also say how much I agreed with the orphan amendment of the noble Baroness, Lady Finlay. Mine, too, is something of an orphan amendment but is rather important. Amendment 137A states:
“The Board must ensure that in relation to its duties under sections 13C to 13N, those persons in the private sector contracted to provide health services must contribute in the same way as public providers towards the achievements of those duties”.
Those duties are to do with the NHS constitution, effectiveness, quality, reducing inequalities, patient involvement, patient choice, innovation, research, integration, and the impact of those services. It is very important that we have clarification that all providers have a duty to promote those.
Earl Howe
My Lords, I am grateful to the noble Lord, Lord Butler, and my noble friend Lord Newton for prompting this debate, which brings us back to a key theme in this Bill: namely, the extent to which we can reconcile central prescription with local flexibility.
Our White Paper, Liberating the NHS, set out the case for change, and with the help of this Bill we will put patients at the heart of everything the NHS does, focus continuously on improving patient outcomes and empower and liberate clinicians to improve the quality of healthcare services. In doing so, we will build on the successful quality framework pioneered by the noble Lord, Lord Darzi, including the quality standards programme that plays such a central role in providing robust evidence for quality improvement under this Bill.
I am naturally sympathetic to the spirit behind the amendments in the name of my noble friend and the noble Lord, Lord Butler. First, I can reassure them, and indeed the noble Lord, Lord Walton, that the Bill does not impose blanket requirements to implement NICE quality standards or any other NICE guidance, or to comply with indicators in the outcomes framework—nor should it. The board will have to have regard to NICE quality standards, including in relation to those services it will be responsible for commissioning. CCGs will similarly be required to have regard to the board’s commissioning guidance, which will be based on NICE quality standards and other accredited evidence. That is a strong duty. It means that they must consider that guidance and if they do not follow it they have to have a good reason why not. I will be coming on to an explanation of the duty to have regard in a moment. The guidance will explain rather than dictate how to improve quality, efficiency and fairness.
I will just say to the noble Lord, Lord Turnberg, that when it comes to NICE technology appraisals, the Government have undertaken to ensure that the NHS continues to fund drugs that have been recommended in NICE technology appraisal guidance and to maintain the effect of the funding direction in the new arrangements for value-based pricing. So there will be no weakening of NICE’s role here, as the noble Lord suggested.
In this way, the Bill gives us a framework to improve outcomes through recognising and rewarding high-quality care based on evidence of what works best. That comes from encouraging innovation and balancing the independence that is desirable for achieving good outcomes with the responsibility to improve, which I think is the intention behind my noble friend’s amendment.
On this occasion, I am afraid I cannot agree with the noble Lord, Lord Patel, that quality standards should be mandatory for rare diseases. We strongly believe that it should be local areas that lead in setting priorities for their own patient population. Making all quality standards for rare diseases mandatory would essentially cut across that approach. We feel that a more effective way to improve quality is to provide commissioners with all the necessary support and evidence that they need to plan how best to meet the needs of their local population.
I can sympathise with the intention behind Amendments 110ZA and 137B. The Government absolutely acknowledge the important contribution that nurse specialists make to patient care, and the value that patients, their families and indeed other members of the clinical team place on having their specialist expertise and support. I am of course well aware of the value of specialist nurses to people with epilepsy and I also completely understand the close interest of the noble Baroness, Lady Royall, in prostate cancer specialist nurses.
Under our proposals, commissioners will have the freedom to commission pathways of care designed around the patient and delivered by a multiprofessional workforce that includes specialist nurses. Of course, they will have the benefit of commissioning guidance on best practice, but in the end we are committed to empowering clinicians and giving them the freedom to determine how best to meet the needs of their patients. This will include decisions about which member of the healthcare team should deliver which aspects of care. These decisions are complex and we believe that they are best made by local clinicians and commissioners working in partnership, so although I have sympathy with much that the noble Baroness, Lady Royall, said, I do not agree that the board should have the sort of role envisaged in her Amendments 110ZA and 137B. We think that they are too prescriptive.
Turning to Amendments 144 and 145, I would say to the noble Lord, Lord Patel, that safety is a key domain of quality, and I have outlined before our intention to embed a culture of patient safety in the NHS by giving the board responsibility for managing the systems for reporting and learning from patient safety incidents that are currently operated by the National Patient Safety Agency. However, I agree that it is important that information which can inform and enhance patient safety in the NHS should be made available to all those who would benefit from it, as he suggests. The NPSA currently shares information with a number of bodies with a particular role in relation to patient safety, such as the MHRA and the CQC, and this will continue to be the case. Indeed, if it did not make important information available to those who it thought could reasonably benefit from it, the board would be in breach of its duty.
In addition to NHS bodies, the information is currently also used to develop products for use by non-NHS organisations, by the devolved Administrations and by international organisations, for which the board may determine it appropriate to charge a fee. It is for these reasons that we have framed the duty to share information in broad terms, and we would not want it to be more prescriptive or restrictive than that. This is the perennial problem of trying to insert a list in a piece of legislation.
Where the board does disclose information that relates to an individual, it is essential that their confidentiality is respected whenever possible and that information is disclosed only where there are compelling reasons to do so. I can reassure my noble friend Lord Marks that disclosures would be subject to the provisions of the Data Protection Act 1998 and the Human Rights Act 1998, so any disclosures of personal information would need to involve the minimum amount of information necessary to serve the purpose. To ensure that this is clear, it may be helpful to my noble friend to know that we are working with the BMA on issues to do with confidentiality and the application of the common law in relation to the board and other bodies. We intend to bring forward any necessary changes to the Bill on Report.
Lord Walton of Detchant
My Lords, I thank the noble Earl for confirming that the Government are working with the BMA. Is it not also very important, in relation to confidentiality, that they should also work with the General Medical Council which, after all, has provided very detailed advice to doctors about confidentiality issues?
Earl Howe
My Lords, the noble Lord is quite right, and my understanding is that we are doing that as well. Meanwhile, I can tell my noble friend Lord Marks that we will consider the provisions highlighted by Amendments 153ZZA and 153ZZB as part of this process.
My noble friend also raised the issue of inequalities. In earlier debates I highlighted the very significant departure made in the Bill that, for the first time ever in this country, the Secretary of State will be legally obliged to have regard to the specific need to reduce health inequalities, whatever their root cause. The board and the CCGs will also have this duty, which clearly emphasises our commitment to equity and fairness across the health service. We believe that the phrase “have regard to” completely captures the intention of the legislation; that is, that the board and the CCGs must consider the need to reduce inequalities in every decision they take. That, I hope, addresses the essence of Amendment 118. This is consistent, as I think it should be, with the public sector equality duty, which is phrased in exactly the same way. As the board already has a responsibility for all patients in the population, its general duty on inequalities also applies this widely.
Under Amendment 119, the board would have to have regard to the duty on inequalities in allocating resources to CCGs. We recognise fully the importance of ensuring that allocations give CCGs the resources to meet the distinctive needs of their local population. Again, our preference is not to place particular weight on one factor or set of factors in legislation. In fulfilling this duty, the board will also need to work in collaboration with health and well-being boards and local authorities. We have already debated the various duties on the board to participate in certain activities of health and well-being boards.
On Amendment 137A, of course it will be important to ensure that all providers contribute to the fulfilment of these duties. Some public sector duties, such as the duties under the Equality Act, already apply to anyone exercising a public function, which includes private providers who supply NHS services. The specific duties in the Bill are placed on the board and CCGs, and they remain responsible for exercising them even when they contract with another body to provide services. It is, therefore, incumbent on them to ensure that these commissioning arrangements, and the ongoing monitoring of services provided under them, support the fulfilment of their duties.
I am not sure whether the noble Baroness, Lady Royall, spoke to her Amendment 343A, but if I cover it briefly, it may be helpful to her. The amendment probes how long it will take NICE to produce the full range of quality standards. As the noble Baroness probably knows, the ambition is to create a core library of NICE quality standards that covers the majority of NHS activity, and supports the NHS delivering against the outcomes in the outcomes framework. The programme is ideally placed to deliver a steady stream of quality standards over the agreed timescales and this will lead to a comprehensive library of quality standards within, we hope, about five years. Therefore, I am afraid the timescale envisaged in her amendment is too short.
I turn now to the group of amendments introduced by my noble friend Lady Cumberlege on maternity services. I am grateful to her and, indeed, the noble Baroness, Lady Thornton, for giving us the opportunity to consider this question. I hope I can provide some reassurance that the new commissioning arrangements will provide a very secure basis for quality improvement in these services. Women should always expect—and always receive—excellent maternity services that focus on the best outcomes for them and their babies, and which optimise women’s experience of care. Getting maternity care right from the start can help tackle the negative impact of health inequalities and begin to improve the health and well-being of mother and baby.
We are committed to improving outcomes for women and babies, and for women’s experience of care. Three of the improvement areas in the NHS Outcomes Framework for 2011-12 focus on improving maternity services, by reducing perinatal mortality, by reducing admissions of full-term babies to neonatal units and by improving the experience of women and families of maternity services. My noble friend spoke of variation in services and that was the theme of the very powerful speech by the noble Lord, Lord Mawson. We are committed to ensuring consistency in the quality of maternity services. From April 2012, a maternity experience indicator will be introduced as part of the NHS outcomes framework. It will allow us to chart a woman’s experience of care through antenatal care, labour, delivery and postnatal care.
To support the NHS in improving outcomes in pregnancy, labour and immediately after birth, the National Institute for Health and Clinical Excellence is developing new quality standards based on the best available evidence on antenatal care, intrapartum care and postnatal care. It is outcomes and quality that matter, and the NHS Commissioning Board will be publishing a commissioning outcomes framework for clinical commissioning groups. The commissioning outcomes framework will rely on the national outcomes framework set for the board and NICE quality standards. On top of that, the NHS Commissioning Board could decide to include guidance on the matter in the commissioning guidance that it must publish for CCGs and to which CCGs must have regard.
Lord Warner
My Lords, can I ask the noble Earl a couple of questions, on which I would be grateful if he could write to me and to any other noble Lords who are interested? I found two of his answers a bit unconvincing. The first was on Amendment 144, tabled by the noble Lord, Lord Patel. I would really like to know how the Minister will ensure that the board will disseminate this information on patient safety and put it in the public arena to a wide group of people. At the moment, as the Bill is, it is left totally to the discretion of the board as to how it will behave. Secondly, I did not find the Minister’s answer on rare diseases and mandatory guidance very convincing. I would really like to know what discussions have taken place with those such as the Royal College of General Practitioners and clinical commissioning groups, about their appetite for making local decisions on these very rarefied diseases without the kind of mandatory guidance that the noble Lord, Lord Patel, spoke about. I do not expect an answer now but I would like some more written guidance on that.
Baroness Cumberlege
My Lords, I was heartened by a lot of what my noble friend said about maternity services, but it seems that the variations will be reduced through NICE quality standards. I understand that NICE has a very long queue of services to be considered for quality standards and I wonder whether my noble friend and the Government have any influence over which services have priority to have their standards set early and which will have to wait. As maternity involves a tremendous number of women who are giving birth, it is really important to get it in the front of the queue, as far as possible.
Baroness Barker
My Lords, can my noble friend tell me where in the legislation it is made clear, if a CCG were to have a conflict—that is, a disagreement—with the commissioning support organisation, where and how that conflict would be resolved?
Earl Howe
My Lords, in the interests of time I suggest that I write to noble Lords on those questions, and I am happy to do so. However, I say to my noble friend Lady Cumberlege that I recognise the particular importance of the maternity quality standard. I will try to find out for her what stage NICE has reached or is likely to reach within a certain timescale, and if I can provide her with any further information I will be happy to do so.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister for his comments in response to Amendment 109A and I thank the other noble Lords who have supported it. The noble Lord, Lord Newton, said that this is a probing amendment. As the Minister has said, there is a question of balance here: we want the Commissioning Board to be an effective promoter of standards, but on the other hand we do not want the arrangements to put an unnecessary brake on innovation. I am sure that the noble Lord will consider carefully what the Minister has said. In the mean time, I beg leave to withdraw the amendment.
Lord Patel
My Lords, the amendments in my name are about patient and public involvement, and accountability to patients and the public. They would amend new Sections 13H, “Duty to promote involvement of each patient”; 13I, “Duty as to patient choice”; and 13J, “Duty to obtain appropriate advice” by the Commissioning Board, in the 2006 Act. I shall also speak to Amendments 141A and 206A. The latter is in the name of the noble Baroness, Lady Hollins, who unfortunately had to leave for another engagement but will return later.
All these amendments are about the requirement for the NHS Commissioning Board and all clinical commissioning groups to engage in meaningful and substantial consultation with users of services, particularly with regard to ensuring that commissioners commission services and pathways that are navigable and coherent.
The current requirement to be placed on the board and the clinical commissioning groups is that they must make arrangements to secure that individuals to whom the services are being provided are involved. It is not enough for the suggested means of doing this to be quite as open-ended as the Bill suggests. The Bill implies that this consultation is really aimed at representatives of patient groups, and I would like clarification from the Minister that both individuals and groups of patients should be able to make representation. It is quite easy to conceive of a situation in which a patient is consulted or provided with information and yet is none the wiser and no more involved in the services that they receive.
Baroness Finlay of Llandaff
My Lords, I have put my name to several amendments in this group, some of which are in my name only. Initially, I will speak to Amendments 125A, 125B, 195A and 195B. These are designed to ensure that the Commissioning Board considers the potentially destabilising effect of new providers choosing to deliver only simple or profitable services, and the effect on existing providers who provide a wider range of services. Clause 101 includes provision for providers,
“to set transparent eligibility and selection criteria",
in relation to treating NHS patients. This is intended to ensure that risk selection does not take place on the part of providers, whereby they accept for treatment only less complex cases or patients, with a view to maximising profit. The Bill also instructs Monitor and the board to take account of the different types of patients treated by providers, and the range of services offered. The amendments suggest that this must also be considered in the national tariff, when that is used, because in looking at tariff adjustments, the Bill does not adequately safeguard against the potentially destabilising effect on existing providers, where other providers choose to deliver only simple or profitable services.
This could increase the relative burden on those providers who deliver a wide range of services, including ones that are more complex and less profitable; also when they provide support at a tertiary rather than a secondary care level, they are providing support into other secondary care services. The amendments would ensure that when the board and clinical commissioning groups discharge their duties in relation to patient choice, they have regard to the effect on the stability of the local health economy and the providers within it; and that they provide this wide range for their patients.
I have made inquiries about what is already happening around the country and I am grateful to the British Association of Dermatologists for giving me some information. It has reported to me that private providers already appear to have been awarded contracts without the appropriate range of specialist staff in situ when starting a service; and private providers appear to be contracted to deliver services that are not necessarily integrated with the existing local secondary care services. They are also decommissioning in isolation without looking at the impact on other local specialist services. For a subject such as dermatology, that becomes really important, because it has a small but important role when extremely complex conditions are looked after by other secondary care providers, and where sometimes the skin holds a light to the true diagnosis.
The association has also drawn to my attention the problem in which some providers set up outpatient clinics which have no educational component. By doing that, they are setting up clinics which are unsuitable for secondary care training, both to doctors in training and nurses who want to train to become specialist nurses. This is a field in which a rising number of specialist nurses have an increasingly important role. The amendments are also designed to make sure that choice is appropriate and that the Commissioning Board does not have to prioritise patient choice over efficiency and effectiveness; quality of services; or over its duties to reduce inequalities and promote integration. These are important duties in the Bill, which many of us have welcomed. I hope that the priority for those is paramount, because they will affect the population at large and reduce inequalities.
Regarding Amendments 175A and 175B, I want to outline briefly why it would be important to be able to appoint a secondary care clinician from within a clinical commissioning group area, rather than being restricted either to somebody from outside the area or somebody who is retired. As we have already debated, there is a great need to promote integration. The report Teams Without Walls, to which I have already referred, stressed the importance of this integration with clinical leadership across primary and secondary care. The Government’s commitment, in response to the Future Forum’s report, that clinical commissioning boards would include at least one specialist doctor and a nurse was welcomed. I hope there will be some reciprocity by having a general practitioner representation on the board at foundation NHS trust board level, at a governance level, to facilitate such integration.
I was concerned that the Secretary of State for Health stated that a hospital doctor on the Commissioning Board should either be from outside the area or be retired. I was particularly concerned about the latter, because there did not seem to be any statement about how recently that person should have retired. People rapidly become out of date with what is going on in an area. For those doctors who work in a fairly large geographical area, it would mean that the secondary care doctor may have to travel a great distance, and perhaps be represented on the clinical commissioning group of an area where the secondary care services are pretty well unknown to him. In saying that, I draw on my own experience of being previously on a health board simply adjacent to the one in which I worked. There were many times when I felt I could contribute much more at a local level, across different services, because of having an in-depth knowledge, than having to explore the various ramifications of secondary care services in the area of the health board on which I sat before I was able to contribute fully to the debate within the board itself.
I also believe that it would help to drive up standards if somebody came from within the board. In saying that, it is important that we learn lessons from problems that have arisen. No one wants to prejudge what the Francis inquiry will recommend but the transcript of the oral evidence that doctors gave to the inquiry appears to indicate that the doctors and the hospital were isolated; that they did not have good networks with other local doctors who worked in different environments; and that when they complained about standards of care they did not report their concerns outside the trust’s structures. That suggests a degree of geographical isolation. There would be merit in reconsidering the stipulation and the restriction that the doctor must be drawn from outside the area.
I do not believe that appointing a clinician from within the clinical commissioning group area results in an unmanageable conflict of interest. First, the role of the secondary care doctor is to offer expertise to inform commissioning decision-making, not to represent one hospital or one specialty. Secondly, GPs will have the same degree of conflict of interest. Therefore, I suggest that the safeguards against this affecting their decision-making need to apply to other healthcare professionals—whoever they are—who sit on the clinical commissioning boards. That also applies to the nurse who sits on the board.
Since the secondary care doctor would not represent any one provider or specialty, there would be no conflict. The model of having a single representative across specialties is not new and exists within the current system—for example, with medical directors in trusts. Other clinical advice will come from clinical networks and senates, and there will be a degree of co-terminosity in the advice received by the clinical commissioning group. That might allow a degree of consistency, which would support some of the difficult decisions that the group will have to make, particularly about issues such as decommissioning services. Therefore, the secondary care doctor will not be able to overrule or push a personal agenda. They will be bound to governing board decisions in the usual way and should have no right of veto. I hope that the Government will reconsider the position of the person on the clinical commissioning group.
For the involvement of patients, it is important to differentiate between public involvement and the involvement of each individual patient in the management of their care and treatment. Amendments 194 and 195 seem important if the mantra and important principle of “no decision about me without me” is to be made real. That phrase is one of the most important things that this Government have put in place. It is certainly a phrase that I have often used in making presentations about various aspects of healthcare delivery.
The importance of involving patients is made clear when you look at the 17 million patients with long-term conditions, many of whom provide more than 80 per cent of their care themselves or with the help of their relatives. If patients understand what is going on with their illness and how to manage their condition, their demands on the health service will decrease. The Health Foundation is developing ways of embedding techniques for supporting people to manage their care and treatment through its Co-creating Health programme. This has already been shown to have excellent outcomes by empowering individual patients to take a degree of control over their own illness and condition. Therefore, I hope that the amendments in my name will be considered by the Government in revising some of the apparently restrictive aspects of the Bill.
Lord Warner
My Lords, I rise to speak in support of Amendments 124, 125, 126 and 196, which are in my name in this group. These amendments are on slightly different aspects of patient involvement and patient choice in new Sections 13H and 13I in Clause 20.
Amendment 124 adds words to the duty under new Section 13H to promote the involvement of each patient. Nothing seems more likely to promote that involvement than ensuring that patients have easy access to their own medical records and, even better, hold their own medical records. The amendment puts those matters in the Bill as part of the duty of promoting patient involvement in decisions about their treatment and care. If patients are to be involved in decision-making, it is important that they can be confident about the information about them that is being held by clinicians and used by those clinicians in making decisions about them. We have moved a long way from a position in which doctors could say, “Trust me, I’m a doctor”. That is not to say that patients do not place a lot of trust in doctors, but the more examples of systems failure that patients hear about, the more I suspect they will want to be sure about what the system has on record about them. This is particularly true when we are dealing with end-of-life issues. Some of us are very keen to ensure that doctors and nurses observe our advance decisions in living wills that are placed in medical records rather than just make decisions on our behalf.
Amendment 125 literally follows on from Amendment 124 and reflects a number of conversations that several of us have had with National Voices, which speaks on behalf of many charities, especially those representing people with long-term conditions. National Voices, with assistance from the Health Foundation, has drawn on a lot of work to distil what it believes service-users expect from those commissioning care. The noble Baroness, Lady Finlay, referred to the work being done by the Health Foundation. This work with National Voices was born from the huge frustration of patients, service-users and carers about the way that they are often treated by those providing services. National Voices has also set out the results of this work in an excellent document called Principles of Integrated Care. Many Members of this Committee may well have a copy of it. If the Minister has not seen it, I commend it to him. I am certain that it has been sent to Sir David Nicholson. Around 50 chief executives or chairs of voluntary organisations involved with National Voices signed a letter to him, commending this piece of work.
Amendment 125 tries to ensure that there is a clear obligation on clinical commissioning groups to pay heed to patients’ and service-users’ voices in their commissioning of services and that the board issues guidance in this area to clinical commissioning groups. I hope that today the Minister will at least take away this amendment, discuss it in detail with National Voices and those of us who are involved in this area, and agree a version that can be included in the Bill and with which everyone is content. Of course, if he wishes to say “Snap!” to these words, we will be delighted. I emphasise that Amendment 125 does not come from the fertile minds of people in this Committee. It comes from the experience and views of many thousands of people with long-term conditions whose representatives have discussed and researched this very thoroughly within the ambit of the Health Foundation and National Voices.
Amendment 126 is on a different topic altogether. It tries to sharpen the duty of patient choice in new Section 13I in Clause 20, which in my view is pitifully vague. When they are exercising choice, people need to know what the speed of access to diagnosis and treatment is; where the location options and alternative providers of service are; and some information on the different levels of performance by those providers. Choice cannot be exercised in a vacuum. If people are to exercise meaningful choice, they need information that they can draw on to make their decisions about what is best for them. They should not simply be guided to local incumbents, which is too often the case in the system as it works now. Very often, those local incumbents may not be the best option for the patient seeking services for their particular condition at a particular time in their life.
I speak with some confidence on this, having spent two years as a Health Minister trying to advance the cause of patient choice. I have had a fair exposure to clinical views about patients not wanting it and just wanting a good local hospital. I have seen at close quarters commissioners in excessively close relationships with local providers. I have heard the voices of patients frustrated at being denied the information they need to exercise choice. I have experienced, at first hand, consultants declining to place their consultation slots on the Choose and Book system. I know that we need much more than the vague wording of new Section 131 in Clause 20 of the Bill. I hope that the Minister, who I know to be a strong advocate of patient choice, will throw away his brief and say yes, we do need more specific wording of the kind in Amendment 126.
I hope the Minister will do likewise in respect of Amendment 196, which applies the same increased precision to the duty as to patient choice and places it on clinical commissioning groups as well as the board. I will not go over the arguments again, as they are exactly the same as those I have deployed on Amendment 126. It is even more important to disturb the cosiness of provider incumbency when we come to clinical commissioning groups. I have added a little piquancy to the clinical commissioning groups amendment by a specific reference to end-of-life care, where we badly need more options for people to choose from if their preferences are to be delivered.
I have spoken for too long already, but I also wish to add my support to the amendments in the name of the noble Lord, Lord Patel, to which I have added my name.
Lord Clement-Jones
My Lords, I shall speak to Amendments 127B and 197B. As they relate to pharmacy, I declare an interest as the chairman of the Council of the School of Pharmacy, University of London. The intention of these amendments is to ensure that all relevant healthcare providers, including community pharmacists, are consulted when the NHS Commissioning Board and commissioning groups are discharging their functions and developing their business and communications plans. The essence of these amendments is to retain the long-standing arrangement whereby, under the 2006 Act, commissioning bodies have to consult widely and in good time with all relevant stakeholders, including local service providers or their representatives.
Under the current system, primary care trusts are required to consult widely in relation to their commissioning duties. There is concern in the pharmacy profession that the current provisions under Clause 20, new Section 13J, for the board, and Clause 23, new Section 14V, for clinical commissioning groups, to obtain appropriate advice are too vague. It is important that consultation with all local healthcare providers should be done via local representative bodies as well as directly with providers. Clinical commissioning groups should consult pharmacy professionals when making decisions in relation to the commissioning of relevant services in order that the professional skills, knowledge and expertise of pharmacists are used in planning, commissioning, delivering and evaluating NHS services. They should also demonstrate arrangements systematically to seek the views of all appropriate local clinical groups throughout the commissioning process, in general and for particular services. This would include ensuring that all local representative committees are fully engaged in the commissioning process and signed up to the outcomes agreed.
As part of their local leadership role, clinical commissioning groups also need open and transparent processes for reconciling different professional perspectives and contingency arrangements for seeking the agreement of non-GP professional groups in the case of urgent service change. These processes should be clearly set out as part of the CCG’s governance procedures for commissioning decision-making. The above will be of particular importance in the immediate term, given the influx of new commissioners into the market, to ensure commissioners commission services effectively. Without relevant healthcare providers being consulted, the different contributions that such providers, including pharmacy, can make to local healthcare could be lost.
If used effectively, pharmacy has the potential to deliver a great deal more both to patients and commissioners. For example, it is estimated that some 57 million GP consultations each year involve minor ailments which could be dealt with at a pharmacy. If these patients could be moved to a pharmacy, more than £812 million could be saved annually, and GP capacity could be freed up to deal with more complex cases.
In summary, it is critical that there is a duty on commissioning groups, when developing their commissioning plans, to consult primary care providers such as pharmacists as there is a danger under the proposed legislation that some groups may not do so, leading to ineffective commissioning of services. At the Royal Pharmaceutical Society Conference in September, the Minister said that pharmacists are pivotal to every aspect of the Government’s plans to modernise the NHS. I find those words very encouraging and hope that he can give further encouragement in the course of this debate.
Lord Patel
My Lords, I support the amendment of the noble Lord, Lord Warner, on patients holding their own records. Speaking from personal experience, I know that it was not uncommon in maternity services years and years ago for patients to be given their old, shared maternity card. The difference was that that card was extra to the actual notes, so what doctors and midwives wrote in those cards was probably an abbreviation.
For 25 years of my life, I allowed patients to carry their complete set of records, thus avoiding having to write another card. That meant that what you wrote and what you told the patient had to be precise, and clear thought had to be given to the purpose of writing it down. It also taught people not to use abbreviations that do not mean anything, or that might be misconstrued. It is not uncommon for doctors to use abbreviations such as SOB or NAD. They do not mean what you think they might mean. SOB stands for “Shortness of breath”, and NAD stands for “No abnormality discovered”. This also meant that when you were putting the results of diagnostic tests into the notes you were forced to explain to the patient what those results meant. If the results were ambiguous, then you had to explain to the patient what that ambiguity was. That improved the quality of record keeping, communication with the patient and the quality of care given to the patient. In 25 years of allowing thousands of my patients to carry their own notes—and some of the noble Lords sitting today are well aware of my habits—I lost only two notes. One was eaten by a dog in the patient’s house and the other was torn up after being left by the mother-to-be on a bus. Apart from that, there was no loss of notes, while in hospitals usually you can hardly find any notes.
There is a double issue here. How do we make notes that are compatible—easy to write and yet which communicate with the patient. An electronic version is better, but even a hand-written version works. I am convinced that allowing patients to carry notes is not a problem.
Lord Harris of Haringey
My Lords, this is an extremely important group of amendments, but I hope it is, by and large, an uncontroversial one. The Government say they are committed to patient involvement and patient choice. They say they want to see all decisions being taken with the patient rather than simply by professionals. These amendments all contribute to achieving those objectives. It is worth distinguishing between a number of different elements in terms of patient involvement. There is the involvement of the individual; there is the involvement of the specialist group of patients; and there is the collective involvement of patients. I hope that these amendments provide a means of addressing all three groups.
The involvement of the individual patient—specifically included in Amendment 121 and in Amendment 124, to which the noble Lord, Lord Patel, has just spoken, on access to medical records—is an example of where it is vital to write this into the Bill if you are serious about the Government’s mantra of, “No decision about me without me”. The experience is that, where patients are involved in all decisions about their medical care, better decisions are made and compliance with them by patients is far fuller than would otherwise be the case. Therefore, requiring patients to be involved in every decision affecting them is part of delivering a good and effective health system. My experience mirrors that of the noble Lord, Lord Patel, because the experience of patients’ organisations is that, where patients are given charge of their medical records, they look after them extremely carefully—often much more carefully than under the old system of trolley-loads of not dog-eaten but dog-eared files in hospitals—and are much more likely to be protected by the individuals concerned.
I have put my name to Amendments 123, 192 and 205, which talk about the involvement of healthwatch organisations. Amendment 123 places a duty on the board to promote the involvement of local healthwatch, and it is important that the board sets the tone for the NHS in the way in which healthwatch organisations are expected to be involved at every level. It needs to come from that level. Amendments 192 and 205 relate to the duties of clinical commissioning groups. There is a gap in the Bill, because it seems to be implied that commissioning groups will involve patients and healthwatch organisations, but I am not sure that that is stated explicitly, which is why those amendments are so important.
However, the reason why it is helpful to engage healthwatch at every level within the NHS is the support function that local healthwatch organisations and HealthWatch England will provide to the three levels of patient involvement that, as I have stated, are so important. That is because, as local healthwatch organisations and HealthWatch England, they will have an understanding of the way in which the health service is functioning. They will have an understanding of the pressures on the health service, commissioning groups and local providers and they can therefore support specialist groups of patients with a particular knowledge of their condition in how to exercise their influence most effectively within the organisation. It is those specialist groups of patients who will be tremendously valuable in improving the quality of service. They will often have far more knowledge about the way in which their condition operates than even the clinicians who support them—maybe not the specialists but general practitioners and so on—because they have that detailed knowledge and experience, day in and day out, particularly when they have a chronic condition that may continue over many years. That involvement is crucial in terms of the quality of decision-making, but it is important that they are supported by organisations such as healthwatch, which will then be able to put a context to the way that the local NHS is functioning.
Finally, there is the critical issue of the collective involvement of patients in decisions about the disposition and organisation of health services at a local level. That will be best articulated through local healthwatch organisations. This will be about what best serves the local community and what meets the differing needs within a community. The only simple mechanism by which that can be achieved is through something such as local healthwatch organisations. That is why such involvement must be built into the commissioning process, and the board must lay down how crucial this issue is crucial to the determination of services.
Lord Kakkar
I shall speak to Amendment 198 in my name and that of my noble friend Lord Patel. It would impose a duty on clinical commissioning groups to consult relevant academic bodies in their area, including potential future academic health partnerships. I remind noble Lords of the entry in the Register of Lords’ Interests on my involvement in University College London Partners—one of the five academic health science systems currently designated by the Department of Health.
Academic health science partnerships can take a variety of forms but are all based upon a simple principle: the delivery of healthcare should be combined with high-quality teaching, training and research to drive the highest possible clinical standards achievable. Indeed, throughout healthcare systems in the world it is well recognised that alliances between the academic and service-delivery elements of healthcare help us to achieve the best possible clinical outcomes. That view has been recognised by the Department of Health in the designation of the five current academic health science centres in our country.
A number of other initiatives are moving forward at the same time as this Bill and are considering a broader role for academic health service partnerships. These include the ongoing review, conducted under the auspices of the chief executive of the National Health Service, which is looking at innovation in the NHS and how that might best be promoted as we move forward. It is possible that that innovation review could propose a broadening of the current five academic health science centres to a larger number of academic health partnerships that would have responsibility for the promotion of innovation, and would ensure that the results of research and other innovative ways of delivering care are more broadly and rapidly disseminated across the NHS. That dissemination of best practice and innovation could also be used to create an environment in which to stimulate economic growth. That is an important additional opportunity that the NHS and academic medicine have for our country.
There is also the detailed discussion that has taken place in Committee, outside the Chamber, and in the work of the NHS Future Forum with regard to future arrangements for education and training. In those discussions, there is a recognition that academic health partnerships should play an important role, not only in the configuration of Health Education England but in local arrangements, potentially with academic health science partnerships playing an important role in defining the structure and core of local education and training boards.
Therefore, at least two initiatives, in addition to the mechanisms and structures proposed in the Bill, will turn to partnerships between the NHS, academic institutions and other academic elements in the delivery of healthcare in our country. The purpose of my amendment is probing in order to try to understand what view Her Majesty's Government take of the potential future role of academic health partnerships and what relationship the Government foresee with regard to clinical commissioning groups working at a more local level with potential academic bodies and partnerships in their vicinity. This is particularly important because we heard today in Committee about the vital importance of clinical commissioning groups being appropriately informed. One of the important roles that academic health partnerships may play in the future is providing that kind of information to better inform the decisions that local clinical commissioning groups take. With the vast amount of evidence that academic health partnerships will have in their structures, bearing in mind that these partnerships are broad and include not only academic institutions but a variety of different service providers brought together with a common purpose, it would be peculiar if clinical commissioning groups did not at least make themselves informed of their information and expertise. It would also be peculiar if, in creating a framework and structure for education and training based around a partnership between academic elements and service and provider elements at local level in local education and training boards, clinical commissioning groups did not avail themselves of the opportunities from that.
Previously in Committee, I proposed to the Minister that clinical senates may be constituted around these broad partnerships of academic health service alliances. There was some concern that this might represent a conflict of interest. However, the very broad nature of these partnerships, with multiples of potential providers as seen in the current five academic health science systems, potentially overcomes the risk of conflict of interest. They provide a natural structure and environment to serve the function of clinical senates, to serve the function of the core of local education and training boards, to provide a useful source of information to clinical commissioning groups with regard to understanding the best pathways of care available in their regions and to promote clinical outcomes, patient safety and patient experience. They also provide a very important basis to serve the objectives of the current innovation review to promote not only best practice but the benefits of economic growth associated with innovation and implementation with regard to healthcare.
I would like to ask the Minister about Her Majesty’s Government’s view of the future role of academic health partnerships, with specific reference to clinical commissioning groups, to understand whether there is an intention that the current five academic health science centres are more broadly expanded into health academic health partnerships. If they are, how will arrangements be made in future to ensure that clinical commissioning groups avail themselves of the great expertise and knowledge that will be available in such partnerships?
Baroness Pitkeathley
My Lords, I agree with my noble friend Lord Harris that this is an extremely important group of amendments. I rise very briefly to support those emphasising the significance of patient involvement and, in particular, Amendment 191 in the names of the noble Lords, Lord Patel and Lord Warner, which changes “promote” to “pay regard to”.
There is no doubt that we have made progress in recent years in addressing patient interest and hearing the voice of patients and carers, and we should acknowledge that. We still have a long way to go, however. When you work with groups of patients and carers, or with individuals, you always get the same reaction. They say something like, “I feel consulted out. I have been to every meeting, I’ve talked to every clinician, I’ve given my opinion endlessly, I sometimes think they add the words ‘patient’ and ‘carer’ to every paragraph of every document that comes out of any commissioner, but what I do not know is what happens as a result of my involvement”. This is what we must bear in mind. Changing the wording in that amendment would strengthen the ability of the patient, the user and the carer to ensure that something happens as a result of their involvement. That is what we must concentrate on. We should never forget that the involvement of patients is not a tick-box exercise; it is there to ensure we shape services around the needs of patients, not the convenience of commissioners.
Baroness Murphy
My Lords, I rise to add a number of comments to one or two of these amendments. I have my name on Amendment 196, also in the name of the noble Lord, Lord Patel, which is about making choices real for patients. My experience is exactly the same as his—that patients have actually benefited very little from the wide range of choices they could have if they understood the information about accessibility, about the sort of provider, about the range of other services that that provider might have and about the performance of that provider. If you are skilled you can use information available on the internet now to find details on the various providers you have been offered under the “Choose and Book” system used by general practitioners. However, the vast majority of patients simply do not have the skill to negotiate the choices. Making that choice a reality is therefore vital.
I also support the amendments proposing that patients, wherever possible, should carry their own records. To cheer up my noble friend Lord Patel, I say that he will be reassured to know that most maternity units now do have the patient carrying their own records, and that has proved to be of great benefit because they hang on to them when the NHS loses them. It has worked very well in maternity services and I certainly support it. There should be more of that in mental health services, where there has been too much holding on to information—not always accurate information—in patients’ records. It would be much better if the patient held on to those data and was able to carry a great deal of the data with them. Of course, it would be much better if people had access to information on simple records but they do not because we do not have electronic patient records in every place. The more information the patient can carry with them, the better it is for those who are going to encounter them in the future; it is also better for the patient to have accurate data about their condition.
I come now to the question of whom the clinical commissioning groups should consult in the way of secondary providers when commissioning care. I do not support the amendment of the noble Baroness, Lady Finlay, which suggests that the specialist on the clinical commissioning group should be local rather than a person from another area. No doubt when you have too much conflict of interest, specialists on a clinical commissioning board, and a PCT which engages with the local providers and takes account of their desires, local institutions become favoured. We have seen that many times. It is simply the institution the provider belongs to. That is when you are making a decision, so it is very important that the decisions should be made by somebody who can input and hold in their heads all the necessary secondary specialist information. The decision should nevertheless not be made by a local person with an interest in secondary care.
However, when it comes to gathering local information, local institutions and specialists in those institutions should be consulted about what is possible in the area, what has been done before and what could be thought about in the future. That is where primary care trusts in some parts of the country so often, unfortunately, have not appreciated what they could benefit from locally in terms of academic health partnerships and how they could use their academic health science groups to assist them with the commissioning function. They need to take account of what is available locally, and need to understand and get help and consult with local academic institutions and providers, but when the decision is made it should be made by individuals who do not have a conflict of interest locally.
Lord Marks of Henley-on-Thames
My Lords, I shall speak briefly to Amendments 193 and 197, amendments to proposed new Sections 14T, on promotion of involvement of each patient, and 14U on the duty as to patient choice.
The Bill and our debates on it have been characterised by a recognition of the importance of patient involvement and patient choice, and a great deal has been said about those two things in this debate. It is important that we recognise and welcome the new Sections 14T and 14U to the NHS Act, which will enshrine those in statute, but it is also important to note that this is not an entirely new idea. In many areas of medical care, patient choice has been with us for some time. Patients currently have a choice of GP practice; they have a choice of hospital; they have a choice of the GP whom they wish to see within a practice; and they have a right to be informed.
However, there is in practice all too often a gap between the theory and reality. The reality is that although people may theoretically have the choice, they do not know that they have the choice. They do not know despite the excellent section on choice on the NHS website and the literature that is put out about choice at the national level. The amendments are designed to impose on clinical commissioning groups at the local level the duty to take steps to inform patients about their right to be involved and their right to make choices. They state, in certain terms, that each group,
“must take steps to inform patients, their carers and their representatives of the right to be involved in such decisions”,
and, in the other cases,
“to make such choices”.
They are simple amendments, and it may be a matter of regret that they are necessary, but simply having the right in the statute book will not do unless we can also ensure that patients are informed of those rights.
Lord Walton of Detchant
My Lords, I rise briefly to support the principle underlying Amendment 198, so ably proposed by my noble friend Lord Kakkar, relating to the crucial importance of making clear that there must be a relationship between the NHS Commissioning Board, local commissioning groups and academic health partnerships. In using that term, I want to be quite clear in what I mean. I am not referring simply to the five academic health science partnerships which have been created within the past few years specifically in certain areas of the country by the NHS; I am talking about the crucial importance of being involved with everyone who is concerned with the teaching of medical students and the training of young doctors and other healthcare professionals.
There is no doubt that years ago, when the health service began, there was an article of faith to the effect that professors, lecturers and readers in the medical schools and universities employed by the universities, those that had clinical contracts, had a duty to spend half of their time on service to patients. In other words, they had honorary clinical contracts, they saw patients and they carried on in that capacity giving services to the NHS, in return for which there was also an article of faith that consultants employed by the National Health Service in teaching hospitals had a duty to involve themselves in the training of medical students and the supervision and training of young doctors who were being prepared for work in a variety of different professions.
There has been a total transformation of the scene over the course of the past 20 or 30 years, because academic appointments are no longer restricted to a small group of hospitals, which used to be called the teaching hospitals. They also take place and are based, in many instances, in other hospitals, sometimes in old regional hospitals at a distance. In those hospitals, not only do we have academic people employed by the university involved with teaching, but many of those hospitals are now called university hospitals. It is a recognition of the fact that medical students now are trained across a huge number of hospitals in what were the regions. Many of them spend considerable periods away from the centre around the medical school. Therefore, a crucial relationship must arise between the academic doctors working in those other hospitals outside the main centre and the commissioning groups.
We must also not forget the crucial importance to the NHS, as we heard a few days ago in discussion of the amendments of the noble Lord, Lord Willis, relating to research, of not only the academic departments but also the consultants working in general hospitals and others who have significant responsibility for being involved in clinical research. As I said when we discussed those amendments, today's discovery in basic medical science brings tomorrow's practical development in patient care. In particular, these academic relationships are crucial when one begins to consider the importance of clinical trials of new procedures, new drugs, and so on, which may be carried out across not only a wide range of hospitals but in the community. A great deal of teaching is now going on in general practices, which makes the relationship between academic doctors in academic centres and commissioning groups even more important. I therefore support the principle and the purpose underlying Amendment 198.
Lord Neill of Bladen
I make one comment on the amendments, which also goes to the Government’s fundamental philosophy, with which we all agree, that patients should be told about their condition and kept fully informed. My experience in recent years has been visiting hospitals and wards with elderly people in them. You cannot but become aware of the inability of a lot of the patients to understand what it is they are being told or to look after their own notes. There is a danger, if we are not careful, of theory and reality moving apart from each other. There has to be a true awareness of the need to get the relevant knowledge to the right person. Sometimes, it will not be the patient; it will be the patient's spouse, daughter, son or whatever. We should keep that in mind.
Baroness Masham of Ilton
My Lords, I add my support to the patient involvement amendments and the HealthWatch amendments. Whose life is it anyway if it is not the patients?’ Patients can now be very much at risk, if they are not involved with doctors, through drugs available through the internet which are counterfeit medicine. I was at a meeting this afternoon and heard from a Minister that the Government had asked China for help, because it is a problem place, and the Chinese are now going to introduce the death penalty for people selling counterfeit medicine on the internet. That is a serious problem. Patients need to be involved; they need to have a voice; and they need to work together with everybody else concerned. Otherwise, they will feel left out and shunned, and that would not be a good thing.
Baroness Wheeler
My Lords, I am pleased to support the spirit, intention and thrust of all the amendments in this very large and, I hope, uncontroversial group, which are intended to ensure that provisions in the Bill to involve the public, patients, carers and specialist professionals and patient groups in the development and decisions about services, care and treatment are reinforced and strengthened. We recognise that the duties proposed by the Government for the NHS Commissioning Board and clinical commissioning groups—to promote the involvement of each patient and to enable patients to make choices on the services provided to them and obtain advice from specialist professionals—are a significant step forward from the original provisions in the Bill. They build on the foundation work on this issue undertaken by my own Government. However, it is clear from this excellent debate that these general duties do not go far enough to mark the significant step change that we need in getting genuine shared decision-making and participation of patients, carers, and patient groups in decisions about care and treatment, and on how services are planned and developed.
We also now have the added complexity of the reorganisation itself. Senates, networks and health and well-being boards are acting as the system integrators, all alongside our newly enlarged CCGs with their giant private sector support organisations behind them, as we now know from the Government’s recently issued draft guidance on commissioning which was referred to in the previous debate by the noble Baroness, Lady Williams. This will be a highly complex raft of interactions and interconnections with no notable route to accountability. I would be grateful if the Minister could give me some insight into how he envisages the voice of patients being heard among all the clamour and shouting that will go on between these different spheres of interest.
We must try to achieve real involvement. For individuals, that means involvement in care planning and support for patients with their carers, relatives and support groups to manage their conditions and share in the choice of treatment. On collective involvement, this means that knowledgeable patients’ groups should be able to advise commissioners on how to design services, rather than to have token consultation after decisions have already been made, which is the case now in so many situations. We must make sure that we harness fully the collective experience and knowledge of patients and specialist care organisations.
We recognise that this will involve a major cultural change in the behaviours, approaches and attitudes of key professionals from across the specialisms, moving away from seeing patients as units of disease, not as people with rights to information and to participation in discussions and decisions about their care and treatment, as the Health Foundation puts it. We need to change the way that patients and clinicians, in particular, relate to each other, and change the way that the NHS relates to patients in terms of, for example, information provision and the organisation of clinics, and in the style of consultations that professionals have with patients.
In respect of the NHS Commissioning Board, we support Amendment 121, which calls for the board to have the duty to secure rather than promote the involvement of patients, carers and their representatives in decisions about the provision of health services. This is important, and Amendment 150C—which seeks to ensure that the board’s annual report includes accounting for how it has carried out its duties in involvement, choice and advice—complements and underlines the importance of this duty.
Amendments 125 and 126, tabled by my noble friends Lord Warner, Lady Thornton, and Lord Patel, turn the focus on clinical commissioning groups and call for a published guidance to CCGs to ensure that they are clear about what is required of them to meet the duty to promote the involvement of each patient. I also pay tribute to the work of National Voices on the principles of integrated care and on other patient and involvement issues relating to these matters.
We know that many commissioners, both nationally and in CCGs, are unaware of the increasing evidence that involving individual patients in their care and treatment is proven to be more clinically effective, provides better patient experience and makes much better use of healthcare resources. In other words, it is the vital underpinning for the Nicholson challenge and for commissioners’ other duties to improve quality. A far stronger signal is needed in the Bill and in statutory guidance to draw commissioners’ attention to the proven interventions that they require from their providers. I would be grateful to hear from the Minister how he intends to do this.
Clearly, many CCGs will not make the changes that we need without help and support. Amendment 125 is therefore crucial, as it calls on the NHS Commissioning Board to draw up guidance to CCGs which will enable patients, carers and their representatives to make informed decisions. This includes patients having the means to express their views on the quality of services provided, opportunities to consult with service providers, access to appropriate information about their care and treatment, opportunities to consider available treatment options and their risks and benefits, and to participate in decisions about their care and treatment and its managers. The information they receive about these areas must be simple and well presented—not league tables or comparison charts, but clear information about treatment options, how effective they are and what the consequences might be for the patient. As other amendments underline, these rights of patients must be accessible to all patients.
Amendment 126 stresses how important it is to have information on access and location and about the providers of health services and performance if informed decision-making is to become a reality for the majority of patients. We fully support Amendments 127A and 197A, which would give expert patients’ organisations equal status to professionals in providing advice to commissioners. This would help ensure a patient voice in the clinical senates and networks. It is an approach that was supported by the clinical work stream of the Future Forum but overlooked in the Government’s response. We also strongly support Amendments 175A and 175B from the noble Baroness, Lady Finlay, which calls for regulations providing for the governing bodies of CCGs to include individuals who are fully aware of the different aspects of specialist provision in the areas covered by CCGs.
Amendments 140 and 142, tabled by my noble friends Lady Thornton and Lord Hunt, require the Commissioning Board to ensure that patients are involved and consulted in the development and planning of commissioning and in the consideration of how proposals for change in health services are organised and delivered. Most importantly, Amendment 205 secures the involvement of the local healthwatch in these decisions, vital if HealthWatch is to be able to fulfil its key watchdog and patients role. The importance of this role was ably underlined by my noble friend Lord Harris, so I will not expand further on it.
On patient choice, we support Amendment 127, which proposes a definition of patient choice. Research shows that patients care most about being able to exercise choice about the care and treatment they receive, but currently the NHS performs poorly in involving patients in this way. A full definition of patient choice should be included in the Bill to ensure that commissioners provide opportunities for patients to exercise choices that go beyond the choice of provider. Does the Minister accept the need for this definition in the Bill, and if not, how will he seek to achieve the cultural change in systems and attitudes that we all want to see?
All these amendments seek to ensure that the NHS Commissioning Board and CCGs understand fully their responsibility, and that they commission for involvement. These changes would give a clear signal to the system that the Government mean business in wanting meaningful patient participation and involvement, and that real change can be achieved.
Earl Howe
My Lords, this large group of amendments all relate to the different ways in which patients, the public and others will be involved in decision-making, and although I shall be suggesting that noble Lords should not press them, I am very much in listening mode on the themes that they raise. The only thing that I cannot promise to take forward is the suggestion of the noble Baroness, Lady Masham, that I should introduce an amendment on the death penalty, but, no doubt, she can persuade me.
The issues that noble Lords have covered are central to our vision of informed and empowered patients, and responsive commissioning that is clinically led. These are also issues that were considered in great depth as part of the listening exercise, in response to which significant improvements were made. Those improvements created much stronger duties than currently apply to primary care trusts, so it is important to begin by recognising how this Bill takes us forward from the current position. Nevertheless, I recognise that some confusion remains about what we mean when we talk about involvement, and what the different duties in the Bill are intended to achieve. The noble Lord, Lord Warner, has tried to frame an all-embracing definition of involvement through Amendment 125, and I find little to criticise as regards the purpose and intent of that amendment. However, I would argue that much of what the noble Lord intends through this amendment is already provided for in the Bill. Indeed, it is because there can be different elements to involvement that would be appropriate in different situations that I would be cautious about trying to wrap them up in a single definition.
It will be helpful to begin by considering the duties on the board and clinical commissioning groups to involve patients in decisions about their own healthcare. The noble Lord, Lord Harris, made some useful distinctions on this point. These new duties reflect our vision of shared decision-making, referred to by the noble Baroness, Lady Finlay—“no decision about me without me”, and an NHS where patients are involved fully in decisions about their care in partnership with clinicians. This is primarily about the relationship between the individual patient and their clinician; it does not extend to commissioning decisions. Therefore, I do not think that it would be appropriate for HealthWatch or indeed any other body to have a role in what are meant to be sometimes very personal decisions.
There is clearly a role for CCGs as commissioners, as distinct from the role of general practitioners, in supporting and encouraging this personal involvement. However, it is not completely within their control, so I do not think that it can be for them to secure, as the amendment proposes. Nor do I think that there should be any sort of hierarchy, where the board is in the lead with a weaker duty on CCGs. That would run counter to what we are trying to achieve, which is after all a more personalised service. Therefore, I am afraid that I cannot agree with Amendments 121, 123, 124A, 191 and 192. However, such a service might include giving patients greater control over their medical records, as Amendment 124 suggests. The noble Lord, Lord Patel, may know that this was a key theme of our consultation on an information revolution. Responses to that consultation showed a clear desire to enable people to be more in control of their care, supported by greater access to the information held about them in their care records. We are committed to this and our forthcoming information strategy will set out how we propose to achieve it.
These duties are of course closely linked to those relating to enabling choice. As noble Lords will be aware, patient entitlements to choice are set out in the NHS constitution. These are underpinned by directions by the Secretary of State, which will in future be the standing rules and regulations under Clause 17 which we have already discussed.
I reassure noble Lords that, as now, the role for commissioning bodies in respect of enabling choice in the future will include acting with a view to making people aware of their rights and entitlements, giving them the information that they need to make informed decisions and working with providers to ensure that these are delivered. I did, however, listen with considerable care and sympathy to the noble Lord, Lord Neill, regarding patients who need advocates to speak on their behalf. This will be further reinforced by the new duty that the board and clinical commissioning groups will be under in relation to promoting the NHS constitution among both patients and staff. The board will set the choice offer, establishing the parameters for choice and competition, based on the choice mandate that the Secretary of State will set as part of the annual mandate to the board. I remind the Committee that we recently sought views on these issues through the consultation, Liberating the NHS: Greater Choice and Control. This is an important approach because it allows the Secretary of State and the board to manage the rollout of choice in a controlled way—something that I know many noble Lords are anxious to ensure. That is why we have deliberately used broad terms in describing the types of choice that patients can exercise. Indeed, I think that defining them in more detail, as some of the amendments attempt to do, could paradoxically limit their scope. They could also be unsuitable or indeed unfeasible in particular circumstances, and that is why, although I am in sympathy with the spirit behind them, I am unable to agree with Amendments 126, 127, 193, 196, 197 or 197ZA.
Greater choice means, among other things, patients being able to choose between a greater range of providers. Amendments 125A, 125B, 195A and 195B are particularly concerned with the impact that greater choice and provider plurality might have on the viability of existing services—a matter that we discussed at our last session in relation to amendments tabled by noble Lords opposite about the interdependency of services. That is an issue that I completely understand. In securing healthcare services to meet the needs of their patients and populations, commissioners must have regard to the stability and financial viability of those services, including taking account of the interlinkages between services, where relevant, on an ongoing basis. Commissioners will need to commission high-quality integrated care that will deliver value for money for local communities and promote opportunities for patients to exercise choices in relation to their care. In taking commissioning decisions, they will have to consider what the noble Baroness, Lady Pitkeathley, reminded us of—that is, what will be in the best interests of their patients. This would always be their primary concern, and we would expect the board to ensure sufficient competency over these issues in authorising CCGs to take on their new responsibilities and in holding them to account for doing the job.
Lord Warner
I am sorry to interrupt the noble Earl’s flow but I have been extremely restrained today. Can he clarify for me the point that he has just made concerning clinical commissioning groups’ constitutions? As I understand it—he can correct me if I am wrong— they have a considerable amount of freedom on how they frame the obligations in those constitutions. Is the Minister saying that there would be some requirements on them centrally from the board to cover areas such as patient involvement and patient choice?
Earl Howe
I am. The intention is that no clinical commissioning group will be authorised in the first instance unless it can demonstrate to the board that it can fulfil the legal duties that the Bill places on it. That is key to our thinking. Indeed, as time goes on, it will be under a continuous duty to show it is abiding by those duties. In the first instance, it is very important that clinical commissioning groups demonstrate they are fit for purpose in that sense.
I also appreciate the concern to ensure that the board and CCGs benefit from as wide a range of advice as possible. The Government have been clear that everyone with a role to play in securing the best possible services for local people should be able to do so. The definition used in the duties to obtain advice is that used to define the comprehensive health service. It would encompass the areas covered by Amendment 127C. Indeed, I do not think it would be possible to cast it in broader terms. These duties will apply to every function the board or a clinical commissioning group will exercise. Again, within those broad parameters it is important to retain some discretion for the board and CCGs to determine how best to exercise this duty.
The board and CCGs will certainly have to work closely and effectively with all the providers with which they contract as Amendments 127B and 197B suggest. I would say to my noble friend Lord Clement-Jones that that most certainly would include pharmacists. I also agree as to the expertise and the unique perspective that patients and their representative bodies can bring not just to the commissioning process but also to the way the board and clinical commissioning groups approach many of their functions. The same would apply to many other groups, including academic institutions, as the noble Lords, Lord Kakkar and Lord Walton, have highlighted.
The noble Lord, Lord Kakkar, spoke powerfully in favour of academic health partnerships. Academic health science centres have been successful at developing these partnerships within their local areas but understandably have been less successful in spreading innovation across the NHS. As the noble Lord set out, the NHS chief executive’s innovation review is due to be published next month. That will set out how we can accelerate the adoption and diffusion of innovations across the NHS. It will include a mix of bottom-up, horizontal and top-down incentives and pressures that will drive adoption and diffusion of innovation and behaviour change. The role of academic health partnerships may or may not feature in this review. I hope the noble Lord will forgive me if I do not at this stage anticipate or pre-empt what the report will say by elaborating any further. However, I counsel noble Lords to play close attention to what the noble Lord said in his speech.
While these duties refer to obtaining advice from people with expertise in relation to the health service, that is not confined to clinical expertise. Indeed, in fulfilling these duties we envisage a role for clinical senates, as we have already discussed, in providing not just clinical advice but multidisciplinary advice from professionals in health, public health and social care backgrounds alongside patient and public representation and other groups as appropriate.
I am sure we all share a desire that these duties are effective. However, I am not convinced that imposing specific duties as to where the advice should come from, including through the membership of governing bodies, or how the advice should be acted on is the right way to proceed. If we become too prescriptive we risk overburdening CCGs with so many duties and obligations that they could never be sure whether they were doing enough and in reality we must trust them to build these relationships themselves and judge them on the outcomes they achieve.
The noble Baroness, Lady Finlay, asked me about the secondary-care doctor role on CCGs and whether it had to be somebody from outside the area or retired or whether it could be a local person. We are looking carefully at that question. The secondary-care doctors on CCG governing bodies will not be able to have a conflict of interest in the decision-making process of the CCGs. That is where the noble Baroness, Lady Murphy, was absolutely correct. We will use regulations to set out more detail about this and we will work with stakeholders, including pathfinders, to develop these proposals. The noble Baroness referred to the secondary-care doctor coming from either outside the CCG area or being retired. Those are two ways in which a conflict of interest could be avoided but they are only examples and do not represent an exhaustive list.
I want to finish by returning to a point raised earlier by the noble Lord, Lord Warner. We too are aware of the very good work of National Voices, as well as a range of other organisations, on how patient and public involvement could be strengthened in the Bill. While I have explained why I think these specific amendments are not necessary, I am happy to go on listening. I feel that the Bill is already strong in this area but we are always open to new ideas and I look forward to further discussions on this general topic. It is for those reasons that, while sympathetic to the intention behind the amendments, I am unable to accept them and I hope noble Lords will agree not to press them.
Lord Patel
My Lords, on behalf of all noble Lords who took part in the debate I thank the Minister for his comments. He excited us all by first saying that the only thing he would not be able to accept would be the death penalty. He finished by saying he could not accept most of what we were saying, partly because it was already in the Bill, which most of us did not think was the case. He demonstrates a commitment that patients’ voices and public involvement will be paramount and that all the commissioning boards and commissioners will be expected to demonstrate that they listen to the voices of patients and the public. We will watch and see how they are made accountable.
The Minister referred to innovation. Of course, the next group of amendments focuses on innovation, so we may come back to it and also the involvement of the academic health centres. We have had a good debate and maybe after reading Hansard some of us can decide whether we will come back to some of these issues. In the mean time, reluctantly, I beg leave to withdraw the amendment.
Lord Warner
Lord Warner
My Lords, I listened very carefully to the Minister’s response to my amendment on patients’ access to or holding of their medical records. As I understood what he was saying, it was that we could eagerly look forward to the Government’s long-awaited information strategy which might well be moving this agenda forward. If that is indeed the case I hope we can consider further with the noble Earl and his officials whether we should enshrine that moving forward in the Bill so patients have a clear statutory right to have access to and to hold their medical records. I will not move the amendment.
Lord Warner
“( ) In discharging this duty, the Board must publish guidance for clinical commission groups that ensures that patients and their carers and representatives have—
(a) the means to express their views on the quality of services provided,(b) opportunities to consult with service providers through a variety of means,(c) access to appropriate information about their care and treatment,(d) opportunities to consider available treatment options and their risks and benefits,(e) the opportunity to participate in decisions about their care and treatment and its management, and(f) the means to ensure informed consent is given to care and treatment.”
Lord Warner
My Lords, I am glad to note that the noble Earl is willing to reflect on this and perhaps discuss it further with us. I would very much like to talk to him with National Voices to see whether we can craft some wording which meets people’s concerns in this area. I will not move the amendment.
Lord Warner
Lord Warner
My Lords, this is an important issue about choice. We need more beef in the Bill about what it means. We have not gone as far as we need to go. In the mean time, I will not move the amendment.
Baroness Thornton
Baroness Thornton
My Lords, we move on now to discuss innovation and research. The amendments in this group are very important and were prefigured to an extent by the discussion we have just had. The amendment tabled by the noble Lord, Lord Hunt, and me, is modest in some ways. However, it strengthens the promotion of innovation in the provision and commissioning of health services. Taken together with the amendments tabled by my noble friend Lord Warner and the noble Lord, Lord Patel, it strengthens the Bill significantly and in a very important way.
We have come to what seems an intractable problem: how to encourage innovation in the NHS. This is part of the Minister's area of responsibility and was also part of the area of responsibility of my noble friend Lord Warner when he was a Minister. I look forward to both of their contributions on this matter.
We know that often, the taking up of great innovation is a painfully slow, complex and bureaucratic process. Our amendment strengthens the promotion of innovation through commissioning as well as through the provision of health services. I would like the Minister to explain why that should not be possible—because it would strengthen and help innovation—and also how it could be done, because we are looking for incentives to promote and spread innovation throughout the NHS.
Last week, the noble Lords, Lord Willis and Lord Ribeiro, and I, with others, enjoyed a dinner and an evening with organisations and businesses to discuss how to ensure that innovation is disseminated, promoted, supported and invested in throughout the NHS so that both the NHS and UK plc benefit. The point was made during the evening that often we do not talk about sophisticated issues but about simple changes to nursing practice, such as the way dressings are done, or to information management, that nevertheless can have an important impact on patient care and progress.
I will not speak further on the amendments because I will be very interested to hear what other noble Lords speaking to their amendments in the group will say. I hope that the Minister, with his passion in this area, will give us some comfort on the matter. I beg to move.
Lord Warner
My Lords, I will speak in support of Amendments 129 and 129A in the group. First, I will take up the point made by my noble friend Lady Thornton about the long-standing problem of the slowness of the NHS to take up innovative ideas, and the frustration often felt by people in this country who have invented new approaches and created new innovations, only to find that they have had to go abroad to get them projected, promoted and sold, with the NHS being one of the last to take up the innovation, which was often funded in one form or another with public money by the British taxpayer. It is a long-standing problem and not a party-political issue; it has been a challenge for successive Governments. One of the most embarrassing moments one has as a Minister is when one meets foreign delegations or travels abroad to back Britain and is asked, “Has this innovation been taken up in the NHS?”, whereupon one has to shuffle one’s feet and think of a suitably weaselly form of words to avoid answering the question directly. It is a very long-standing and difficult issue.
Amendment 129 draws attention to the importance of the procurement of goods and services in the promotion of innovation, and to the duty that that places on the national Commissioning Board. There are many reports about the importance of public procurement in advancing innovation and in ensuring the take-up of UK inventions and innovative practices. The latest one was by the Science and Technology Committee of your Lordships' House, of which I was a member. The report brought out some of the dilemmas around using procurement to take forward innovation. Yet again it cast doubt on central government's use of their purchasing power and muscle to drive the take-up of UK innovations in public services.
The NHS is not alone in having this problem, but it is part of the problem and it is a big part of the public sector. A major and long-standing problem is that too many purchasing decisions are taken too far down the organisational food chain, with too little intervention at senior level and too little willingness to use large-scale purchasing to spread the use of innovative approaches. Whatever else the national Commissioning Board has, it has a lot of financial muscle. It must use that, through the NHS’s purchasing capacity, to drive innovation, which often comes from publicly funded research. I hope that the Minister, who is well aware of the issue, will see the sense in putting something like Amendment 129 in the Bill. We cannot say too often that public procurement is a way of helping to establish and drive innovation in the NHS.
Amendment 129A seeks to add the idea of an innovation fund to the board's armoury on innovation in new Section 13K. There is nothing novel in this. The amendment continues and builds on the proposals of my noble friend Lord Darzi, which led to regional innovation funds that strategic health authorities currently manage. Again, we need to strengthen the mechanisms in the Bill for driving innovation in an NHS that historically has been slow to take up innovations and apply them to scale for the benefit of patients. We are not talking about huge sums of money in the innovation fund, but relatively modest amounts in relation to the scale of NHS expenditure. However, an amendment of this kind would ensure the continuance of the useful work that has been started by the strategic health authorities following the promptings of my noble friend Lord Darzi.
It is typical of what we sometimes do in this country. We start an initiative with a fund at strategic health authority level and then shuffle the cards so that somehow, along the way, some of the initiatives and their benefits get lost. I hope that we can get some reassurance from the Minister that some kind of innovation fund will be available so that we can continue the work that my noble friend Lord Darzi so ably started to ensure that patients can secure the benefits of UK innovations.
Lord Patel
My Lords, I support the amendments tabled by the noble Lord, Lord Warner, to which I have added my name.
First, I will speak very briefly about innovation and procurement. I also contributed to the report by the Science and Technology Committee on procurement. The public sector could learn a lot from the private sector about using procurement to drive innovation. Perhaps the Minister can comment on this. The NHS is a huge organisation that uses about £20 billion-worth of procurement a year and if that was done in a co-ordinated way, it could drive an immense amount of innovation within the NHS.
My second point is about how to drive innovation into clinical care. There are lots of examples I could give, but I will give one from my own specialty. It took us 20 years to take the learning from research into the kind of treatment to be given to the mother in premature labour that would considerably reduce the incidence of respiratory distress syndrome, which causes a lot of harm and death in neonates, and embed that into practice. There are lots of examples of such innovations not being embedded into the NHS and we need to look at ways of doing that faster.
My third point is how to use tariffs to drive innovation. If I as a provider will not be given a higher tariff if I drive innovation or innovate a different way of providing the service, and all that will happen is that the tariff for procuring my services as a provider will be less the following year, there is less incentive for me to use innovation in clinical care to improve patient care and also to make it cheaper.
The fourth issue is about an innovation fund, which I support. Together with the Wellcome Trust, the Government have an innovation challenge fund that asks for tenders in particular areas of innovation. The one I know about is in reducing infection rates. Innovation funds of this kind will drive further innovation; for example, in the United States Medicaid and Medicare have a joint innovation fund to drive improvements in healthcare. So I support that amendment.
Baroness Finlay of Llandaff
My Lords, I rise to speak briefly to Amendment 129ZA, which is really a probing amendment. I hope that the Minister will be able to explain what these “prizes” are that are referred to in the Bill. The Explanatory Notes do not really help. They talk about the Bill providing for,
“the NHS Commissioning Board to make payments as prizes in order to promote innovation in the provision of health services”,
and that:
“Innovation will originate primarily from the actions of commissioners and providers but it is intended that the NHS Commissioning Board will take a lead role in promoting it”.
The changes should bring about continuous improvement and innovation often happens outside the main NHS. Indeed, in my own discipline, end-of-life care, the innovations have happened by and large in the third sector, particularly in care in the last 48 hours of life. In some ways, this is where these organisations, the different hospices and those working with them, have felt freed up to pilot different ways of doing things which have subsequently been adopted within the NHS.
There is a huge need for more health services research and for good, qualitative methodology. My only anxiety about the word “prizes” being in the Bill is not that I do not want innovation to happen—I desperately want innovation to improve services for patients—but that I want to make sure that innovations are also properly evaluated; that they are piloted, evaluated and audited in the long term. It is terribly easy for people to have great flashes of inspiration and great ideas but they might not necessarily roll out appropriately across all aspects of the health service. Many of us have seen innovations that seem to be excellent in one setting but when they are rolled out without adequate support and training, mistakes are made and problems arise.
I had the privilege of chairing the commission into medical generalism, and our report noted the shortfall in both funding in primary care and in researching ways of delivering primary care to common conditions. We welcomed the National School of Primary Care Research and the recognition that more funding was needed, but we urged the MRC and other funders to create a dedicated funding stream for clinical research in primary care as it is difficult to secure funding. I hope the Minister will explain what these “prizes” are and say that they will in no way detract from the much needed research funding to really evaluate innovations and innovative ideas, particularly in primary care.
Baroness Morgan of Drefelin
My Lords, I rise to speak to Amendments 130, 131, 147, 150, which are in my name. I have also added my name to Amendments 215 and 218. These are very big groups and the Minister has my sympathy. I am sure he is listening very carefully to all the advice that he is receiving. I would particularly like to add my support to the remarks made about the power of procurement to promote innovation.
I want to speak about research and the research duty. My amendments are designed to add weight to the research duties in the Bill and follow on from the excellent debate on Clause 5 in relation to the Secretary of State’s research duty. I thank the Minister for his letter, which he has circulated to those who took part in that debate, although I fear that it may have raised rather more questions than it has answered. I apologise to the noble Earl for that, and I would like to go through a few of them now. I declare an interest as chief executive of a medical research charity, Breast Cancer Campaign.
In the debate on the research duty in Clause 5, many excellent examples of research were highlighted. It might be useful very briefly to reflect again on the impact that research has on the lives of people in this country, and to mention a report on cancer survival rates by Macmillan Cancer Support that had a great impact in the media last week. It highlighted that people now live nearly six times longer after their cancer diagnosis than was the case 40 years ago. Many noble Lords will be aware that for nine of the 20 cancers studied by Macmillan, median survival time is three years or less, with little improvement since the 1970s. The report highlighted the achievements that research has made but also that there is an awful lot more work to do.
It is also important to remember that there is a lot of research about quality of life. For instance, median survival time for breast cancer has doubled since the 1970s. Investment in research has played a fundamental role in this and yet more than 12,000 women still die from breast cancer every year. As I said, research is not only about improving survival rates. Many women with advanced breast cancer live with complex support requirements that are frequently not met, as evidenced by the research published recently by Breast Cancer Care and funded by my charity, which raises serious questions about pain control, for example. Ensuring that the NHS is committed to supporting research is absolutely key to addressing long-term improvements in survival but also improvements in quality of life for patients today.
Amendments 130 and 131 are intended to strengthen the research duty that has been placed on the Commissioning Board. Amendment 39, which we talked about a few days ago, removed the phrase “have regard to the need to” from the research duty on the Secretary of State, thereby strengthening it, and Amendment 130 seeks to do the same for the research duty on the Commissioning Board. During the debate on Clause 5, the noble Lord, Lord Willis, explained eloquently why the words “have regard to the need to” in the clause would be better removed ,and how by doing that we would have greater clarity and a better statement of intent would be established. So it would be helpful if the Minister could explain why we need to see those qualifying words in this clause. It would be particularly useful to be given practical examples of the effect that removing the words would have, because I suspect that they are not necessary and that the Bill might be better off without them.
I was also extremely heartened to hear the Minister say that he sympathised with me and with many other noble Lords when we argued that the research duty should be strengthened and that he would undertake a “closer consideration” of the research duty. I would welcome hearing a little more about his thoughts on that today, particularly whether any amendments to Clause 5 could be in the making, and whether they could be read across into Clause 20.
Moving on to Amendment 131, this seeks further clarity on the meaning of,
“research on matters relevant to the health service”.
I do not want to rehearse the arguments made previously in relation to Clause 5 and the wording of this phrase except to request a further explanation of its definition, including practical examples to aid our understanding which I hope the Minister will be able to provide either today or later in writing. In correspondence, the Minister helpfully clarified that public health was covered by the current definition, which was an important point for the noble Lord, Lord Warner, as I recall. However, the intention of Amendment 131 is to seek further clarification and a definition of the phrase so that we can understand whether it is sufficiently comprehensive. Public health is one issue that we are very clear about. It is covered, but we need to be confident that the duty is comprehensive in that regard. I believe that a more substantial definition is required and I am pleased to have the opportunity to request this today. For example, with this definition in place, what are the implications for NHS staff who are involved in supporting research? Will there, for example, be sufficient research nurses to support research activity, will clinical training incorporate time for research and how will research successes be recognised and encouraged as part of NHS career progression and structures?
In terms of what we know about the Commissioning Board, what will it be doing with respect to research? The Government have attempted to reassure noble Lords that the Commissioning Board is aware of the need to promote research and indeed that one of the board’s most important functions will be to support a culture that promotes research and innovation. I welcome this but I feel that in practice there is still very little detail about how this will happen. It appears that research will not form one of the six key portfolios of the board, but will fall under the commissioning development portfolio. Will this include, as I believe the Minister’s letter suggested, the development of commissioning tools and commissioning guidance ensuring that patient care is commissioned so as to support the conduct of research in the NHS? I note with interest that the Government are committed to ensuring that the systems and processes for commissioning used by the NHS Commissioning Board and clinical commissioning groups will ensure that research is promoted, supported and funded by the NHS, including the tariff, commissioning guidance and processes for authorising and supporting the development of clinical commissioning groups. That is important, but I would be grateful if the Minister were able to provide further detail on the activities of the Commissioning Board in relation to research.
Will the development of commissioning tools and guidance as defined be sufficient to embed a culture of research in the NHS? While we have heard that the tariff for patient care will incorporate the costs of patients who are taking part in research projects, how will infrastructure costs be captured? Obviously I am thinking about the cost, for example, of storing tissue for research purposes. I fear that what we have been provided with so far is a number of ad hoc references to research that do not attempt to embed comprehensively a research culture into the NHS or set out a vision of what the research duties would mean in practice.
That brings me to Amendments 147 and 150. Two clear opportunities to ensure that the board is accountable for its actions with respect to the research duty now present themselves in relation to the business plan and the annual plan. I note with interest—and I believe that many others have noticed this—that the board must publish a business plan setting out how it proposes to exercise its functions in that year and in each of the next two following years, and at the end of the year it must also publish an annual report on how it intends to exercise its functions. There is therefore a great opportunity here. However, I am puzzled as to why Clause 20 establishes that the business plan and the annual plan must report how the board proposes to discharge its duties only under new Sections 13E and 13P, and likewise explain in the annual report its performance under those sections, which cover the duties on the improvement of quality of services and public involvement in consultation by the board. Again that is very important, but there is no comparative requirement with respect to new Section 13L and the duty on research. Again, there is an opportunity here to improve the feedback loop. I would be grateful if the Minister could explain what plans there might be to bring forward government amendments or to accept the amendments now before the Committee.
Lord Willis of Knaresborough
My Lords, I am delighted to follow the noble Baroness, Lady Morgan, and particularly to support her comments about the duties in respect of research. But perhaps I may also say that the noble Baroness, Lady Thornton, raised a very important issue in her opening remarks, which is the definition of the difference between a duty to provide and a duty to commission. There is a subtle but important difference between the two. Commissioning, as the noble Lord, Lord Warner, clearly stated, is something for which there is a huge budget, so it is very important indeed that it is used effectively. I was particularly interested in Amendment 129A tabled by the noble Lord, Lord Warner. We are all puzzled about the Government’s intentions in terms of prizes and incentives to encourage innovation and to bring research out of the labs, if you like, to the bedside.
There are some extremely good examples of this. The noble Lord, Lord Warner, mentioned the work of his noble friend Lord Darzi, particularly the Health Innovation Challenge Fund. I have just finished chairing the fund’s three-year review, and it is interesting to note that three years into the five-year programme, new devices, technologies and procedures are being brought forward from research to clinical outcome. Some 13 of these are now up and running, and some are quite remarkable. We have seen the groundbreaking research to deal with the onset of blindness being undertaken at Oxford. Within five years we will have gene therapies that will make a huge difference to patients suffering from a whole range of conditions, including macular degeneration. That will have a massive effect not only on patients’ lives, but also on the health service budget itself. It is important work and there are other good examples on which we need to move forward.
I want to speak specifically to Amendments 215 and 218 tabled in my name and those of the noble Baroness, Lady Morgan, and the noble Lords, Lord Patel and Lord Turnberg. I should also declare an interest as chair of the Association of Medical Research Charities. Amendment 215 concerns the role and responsibilities of clinical commissioning groups towards research and includes, within their commissioning plans, how they intend to execute their duty as defined in new Section 14X. That commissioning groups should have a duty to promote research was recommended by Professor Steve Field, the chair of the NHS Future Forum, when he said in his report:
“Support for research and innovation is also important for evidence-based commissioning and practice, so the report recommends that commissioning consortia should have a duty to promote research and innovation and the use of research evidence in the NHS”—
a recommendation which was immediately taken by the Government, to their credit, and, indeed, was welcomed by the medical research community.
Lord Turnberg
I wish to speak to some of the amendments that are in my name. I would also like to comment briefly on Amendments 128A and 129, dealing with innovation. We know that we are quite slow in taking up innovations in the UK. It is not simply that there is a bit of sluggishness in the system—there are hurdles in the system. I want to mention two examples of very simple innovations that would not cost any money to the health service, but which have been blocked by the systems under which we operate.
One example is a consultant colleague of mine, a gastroenterologist—my own field—who set up a clinic in which he took phone calls from GPs and patients and was able to answer many questions without actually having to see the patients. It had a rapid turnover. It was considered to be innovative but was blocked because it did not earn any money for the hospital trust which found that it was not getting the patients referred. The second example concerns a similar situation in which the same consultant saw new patients from 8 am until 9.30 am. He sent them away for tests, scans, endoscopies and so on, and saw them again at about 11 am with the results of the tests and gave them the treatment that was necessary. This, too, was considered not to be earning money for the PCT, because it was paid for items of service, and it would have got twice the money with the normal system. This is a hurdle to innovation which we should surely be able to overcome. We have discussed that with the Minister. He expressed sympathy for the idea so I hope that it can be acted upon. It is not simply that we are slow; we have hurdles.
I come to Amendments 130, 131 and a number of others in my name. I have no doubt that the Government have firm intentions to promote research and innovation. It is mentioned in several places in the Bill and I know that the noble Earl’s heart is in the right place on all this. The amendments in my name are simply there to help the Government in their own aspirations by emphasising and reiterating the need to keep research and innovation at the forefront. I simply emphasise the points made so eloquently by the noble Baroness, Lady Morgan, and the noble Lord, Lord Willis. The amendments make it clear that innovation and research are of such central importance that they should be explicit in the board’s business plans, in reporting its activities and in clarifying how it is going about achieving these aspirations. The amendments make sure that the board actively promotes research as against simply having regard to it. I hope that the Minister will find the amendments helpful in the light of the Government’s intentions.
Amendment 131 returns to the issue of research that protects the public’s health. Here I make two particular points that the Minister might consider answering in one way or another. First, how will it be possible to ensure that the local authorities taking over the directors of public health also promote research? What levers will there be with the local authorities? Secondly, I ask a question that has been posed before. How will we ensure that the Health Protection Agency, which engages in much important research, will have access to external funds? We have discussed this before, but it would be nice to know whether it is clear that the HPA will have access to grants from external funding bodies.
Earl Howe
My Lords, the NHS has a long and proud track record of innovating and delivering better care for patients. That must continue—we all agree about that. That is why new Section 13K of the 2006 Act places a duty on the board to promote innovation when exercising its functions, including innovation in the provision of services and the,
“arrangements made for their provision”.
That last phrase means the commissioning of services. As a result, although we completely sympathise with the principle behind Amendment 128A, it is not necessary. The duty is intended to support the delivery of quality and productivity improvements across the NHS to help transform healthcare for patients and the public. In response to the noble Lord, Lord Warner, I say that I expect that innovation in procurement of goods and services will be an essential part of this. The duty certainly allows for it as it stands. It is an important part of the QIPP programme at the moment, and I am sure that it will continue to be. If we were to specify one area of activity in which the duty should be exercised, as Amendment 129 suggests, we would face the perennial problem of listing those areas where the duty should be exercised to the detriment—
Baroness Thornton
I am sorry to interrupt, but it strikes me that if none of us understood that that was what those words meant—that was what led us to table the first two amendments in this group—maybe the Minister should look at those amendments, because they offer more clarity.
Earl Howe
I am always keen to accept the wise suggestions of the noble Baroness, and I will of course go away and consider the words that she has proposed.
I was just referring to the amendment proposed by the noble Lord, Lord Warner, on procurement, and saying that we would face the perennial problem of listing those areas where the duty should be exercised to the detriment of those not listed.
Lord Warner
I have an uneasy feeling that we are going to hear a lot about lists today. On lists, some things are more important than others, and I think that the argument about lists does not hold a lot of water unless the Minister can show us some other items that will be missed out that are as powerful as procurement of goods and services in further research and innovation. If there are others, I would be happy to consider the matter, but the reason why the amendment has been tabled is because it is a very powerful way in which to promote something that the Government want. Many of the other things may not be as powerful in delivering that.
Earl Howe
I recognise that and, after what I said a moment ago, we know that procurement can be an important lever in the innovation agenda. Indeed, that will be recognised in the innovation review, which is due to be published next month. Furthermore, we are planning to launch a procurement strategy by April 2012. I will not go into huge detail about it, although I have it here, but it will consist of three elements—system levers, standards for procurement and system level support. We can look to take forward some of the ideas that the noble Lord, Lord Warner, put forward in his speech.
All this goes to show that there is a substantial amount of work already under way to create the right conditions for innovation to flourish. These include dedicated regional innovation funds to support front-line innovation and innovation challenge prizes to recognise and reward ideas that tackle some of the biggest health and social care challenges facing the NHS and in future. I have named only two from a long list of current initiatives.
I will just say to the noble Baroness, Lady Finlay, that the Secretary of State already has a power to awards prizes. New Section 13K of the 2006 Act, inserted by Clause 20, simply gives the board the same power. Should it choose to use the power to make payments as prizes—and it is a power rather than a duty—this is one way in which it might decide to promote innovation in the provision of health services. Recently I presented the very first group of innovation challenge prizes, and it was a very heart-warming and exciting occasion.
The noble Lord, Lord Warner, rightly made the point that the NHS was slow to take up innovation and that people were forced to go elsewhere to take their new ideas forward. Again, this is an issue that we are tackling with considerable energy in the NHS chief executive’s review of adoption and diffusion of innovation, which will be published next month. I look forward to talking more to the noble Lord about what is in that review in due course.
I say to the noble Baroness, Lady Morgan, in particular that the main way in which the board will collaborate with research funding bodies is to fund the treatment costs of patients who are taking part in research funded by government and research charity partner organisations.
The existing innovation funds were not put in primary legislation; there is no need to put a specific power in the Bill, as Amendment 129A seeks to do, to enable the board to establish an innovation fund. As with prizes, establishing innovation funds is only one way in which the board might seek to exercise its duty to promote innovation; innovation funding is being considered as part of the chief executive’s innovation review.
Amendments 130 and 131 reflect the similar and previously debated Amendments 39 and 41 on the equivalent duty on the Secretary of State in Clause 5. I agreed to undertake a closer consideration of that duty and I shall do that. I reassure noble Lords that our discussions will include the board’s duty. Work is under way to look at these duties ahead of future stages of the Bill. Indeed, I undertake to reflect carefully on the points raised by the noble Baroness, Lady Morgan of Drefelin, and to write to her with answers to her questions. I have also written to all noble Lords who spoke in that earlier debate, picking up points that I was not able to cover at the time. I explain in that letter how public health falls within the definition of the health service, which was one of the points touched on by the noble Baroness. It will therefore be covered by the existing duty on the board to promote research in proposed new Section 13L of the 2006 Act.
The noble Lord, Lord Patel, spoke about the role of the tariff in promoting innovation. He is absolutely right to do so; the new tariff could indeed play a key role in encouraging innovation. The Bill introduces a new, independent, transparent and fair pricing system where the board and Monitor would collaborate to set prices for NHS services. That would create a more stable and predictable environment, allowing providers and commissioners to invest in technology and innovative service models to improve patient care. We are actively looking at the way in which the tariff could drive that.
My noble friend Lord Willis and, indeed, the noble Baroness, Lady Morgan, asked how exactly the board will go about promoting research. As previously set out, we will make sure that the systems and processes for commissioning used by the board and clinical commissioning groups ensure that research is promoted, supported and funded by the NHS. That will include the tariff, the commissioning guidance and the processes for authorising and supporting development of clinical commissioning groups. However, noble Lords will be aware that a great deal of the practical detail of the board's role is still under development. Further detail will be published in due course and we must respect the autonomy of the board in devising for itself how exactly it will undertake this function.
I turn to Amendments 147, 149A, 150, 215 and 218. Given the wide range of statutory duties placed on the board and CCGs, the approach we have taken in the Bill is to emphasise a few key duties that the board must look at—in particular, in its business plan, annual report and its performance assessments—and that CCGs must, in particular, look at in their commissioning plan and annual report. We feel we have chosen the right duties to emphasise, not because they are the most important but because they are duties about which any annual report, business plan, commissioning plan or assessment should provide explicit evidence, specifically linked to the exercise of the board’s or CCGs’ functions.
That said, with respect to clinical commissioning groups I say to my noble friend Lord Willis that the department has published Developing Clinical Commissioning Groups: Towards Authorisation and that, to be authorised, a CCG will need to demonstrate that it has in place the systems and processes both to promote patients’ recruitment to and participation in research, and for funding the treatment costs of patients taking part in research, so this will not be overlooked. However, we are clear that an annual report, business plan, commissioning plan or annual assessment should provide an assessment of all the body's functions, including the exercise of its innovation and research duties. There is also nothing to prevent the documents going into significant detail about the exercise of a specific duty. I add that the board has the power to issue guidance to CCGs on the contents of commissioning plans and directions as to the form and content of the annual report. I hope that those remarks are helpful in answer to the questions and points from noble Lords, and that they will be sufficiently reassured by what I have said not to press their amendments.
Baroness Thornton
I thank the Minister for those remarks and all other noble Lords for theirs. This has been a very high-quality, expert debate. I do not want to delay noble Lords from their supper and, indeed, on this side, from an opportunity to defrost—we have hypothermia on this side. The Committee has again shown its great expertise, commitment and enthusiasm to innovation and research and there is great consensus across the Committee about this. This suite of amendments would have given practical action and voice, and would have strengthened this part of the Bill on innovation and research. We need to look at what the Minister has said. I am grateful for those areas where he said that he would reflect upon these issues and let us know. However, it is safe to say that because of the consensus in the Committee on these issues, we would all be keen to make sure that the issues of innovation and research are, indeed, put beyond doubt in this Bill. I beg leave to withdraw the amendment.
Subsidiarity Assessment: Food Distribution (EUC Report)
(13 years ago)
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Lord Roper
That this House takes note of the Report of the European Union Committee on the amended Commission Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No.1290/2005 and Council Regulation (EC) No.1234/2007 as regards distribution of food products to the most deprived persons in the Union (COM(2011)634, Council Document 15054/11) (23rd Report, HL Paper 217).
Lord Carter of Coles
My Lords, in the absence of the noble Lord, Lord Roper, I beg leave to move the first Motion standing in his name on the Order Paper. It fell to the EU Sub-Committee on Agriculture, Fisheries and Environment, which I chair, to carry out detailed scrutiny of the latest proposal in relation to food for the deprived. In doing so, we were conscious of the consideration which we gave a year or so ago to the previous version of the proposal. Both the sub-committee and the EU Committee itself, which the noble Lord, Lord Roper, chairs, took the view that the changes made to the latest proposal did nothing to remedy the failure to comply with the principle of subsidiarity.
It is tempting to use this occasion to talk about the common agricultural policy as the evolving backdrop to the scheme to distribute food to deprived persons but, since time is limited, I will make only two remarks in this respect. First, when the scheme was initiated in 1987, a largely unreformed CAP generated excesses of butter, milk powder, beef, sugar, rice and cereals—the so-called food mountains—which allowed food to be released to charitable organisations in participating member states. Those days are long gone. Surplus stocks are now very low and in recent years the scheme has in fact relied on open-market purchases of food, so the link between the scheme and the CAP, clear enough in the past, has become more and more tenuous in the present.
I hope that your Lordships will take the view, as the committee has done, that the task of tackling deprivation faced by our fellow citizens rightly falls on the member states, not on the EU itself. No one should downplay the scale of the challenge on social protection across Europe. Data on expenditure in that regard in October this year—I am relying on data from Eurostat, the European Commission's own source—showed that, in 2009, the 27 member states spent over €3 million million on this support. That is, greater than the figure 3 followed by 12 zeroes of euros: a colossal amount of money. Compare the scheme for deprived persons that is being proposed here of €500 million or so. Doubtless that can buy a great deal of food, but in respect of the total spend by member states it is not of great significance.
Lord Roper
My Lords, I support the arguments that have been put forward by the noble Lord, Lord Carter, who chairs the European Sub-Committee of the European Union Committee dealing with agriculture, fisheries and the environment and who prepared the report that we are considering today. This is an important issue and one of the occasions on which this House has the opportunity to argue why subsidiarity matters and why some things ought to be done at a national level, not at a European level.
As the noble Lord said, the food distribution programme made sense when there were significant European surpluses. However, in the 24 years since the programme was introduced, probably at the time when the noble Lord, Lord Williamson, was responsible for these matters, things have changed. There are no longer surpluses that it is perfectly legitimate for the European Union to distribute to member states where there are needy people. The argument has therefore changed. That is why, despite the fact that the European Commission, in preparing its proposals for this document, modified them from the document on which this House gave an opinion about a year ago and suggested that there was a reasoned opinion against subsidiarity over the old proposal, in our view there is no longer a satisfactory situation.
We do not believe that any European value-added is produced by producing €500 million on buying things from the open market to give to needy people. Member states should do that—there are lots of reasons why they should—but that is a decision for the 27 member states of the European Union. That is why this report has been produced and why, although the earlier proposal has been withdrawn as a result of a judgment by the Court of Justice of the European Union, we still believe that this is a serious error.
As we say in our report, neither the proposal nor the Commission’s Explanatory Memorandum produces an explicit subsidiarity justification as required by Article 5 of the protocol on the application of the principles of subsidiarity and proportionality. However, it seems clear from the summary of the impact assessment that accompanied the original proposal of three years ago that the Commission sees three reasons for this. These include the view that the programme addresses problems of hunger, deprivation, poverty and social exclusion in the spirit of the treaty and that it supports the objective of strengthening the Union’s social cohesion.
Our report sets out our consideration of those justifications. I will not repeat them at length. The nub of our assessment, this year as last, is that the spirit of the treaties can be respected without the European Union acting in this respect. Moreover, we consider that member states are capable of acting individually to fulfil those objectives if they so wish, and in any case the failure of European member states to act is not in itself a reason why the EU should act. In conclusion, we again take the view that there is no compelling argument to suggest that the Union is better placed than its member states to ensure a food supply to its most deprived citizens.
We know that the Government share our view on this proposal—indeed, I believe that it is also the view of the opposition Front Bench—and in their Explanatory Memorandum they have stated their belief that,
“measures of this type are better and more effectively delivered by individual Member States through their own social programmes”.
The Scottish Parliament has taken a similar view and the Swedish Parliament, the Riksdag, has also issued a reasoned opinion sharing our view. Other member states such as Denmark and the Netherlands share our concerns, though we are not yet sure whether they have issued reasoned opinions.
The Government have told us that, unfortunately, agreement in principle on this measure has been reached following a decision by Germany to accept a time-limited extension of the scheme to the end of 2013. There appears to have been movement at the political level but certainly not, in our eyes, at the level of the underlying policy.
While the European Commission has made changes to the proposal that we considered a year ago, we think that those changes make no difference to our assessment of whether the proposal is in compliance with the principle of subsidiarity. We consider that it is not compliant with that principle and therefore recommend that the House should issue a reasoned opinion on the latest proposal.
Lord Williamson of Horton
My Lords, it was of course only in November last year that the House took the view that a proposal from the European Commission on the distribution of food products to the most deprived persons in the Union did not comply with the principle of subsidiarity, and we sent a reasoned opinion to that effect to the Presidents of the European Parliament, the Council and the Commission in accordance with the treaty. As the noble Lord, Lord Roper, stated, on 13 April 2011 the European Court of Justice annulled the provisions of the food distribution plan providing for purchases from the market. In consequence, the Commission has now submitted a new proposal, which we have before us, from 2011, document number 634 final, adding a new treaty base, Article 175(3) of the Treaty on the Functioning of the European Union, which relates to social cohesion. As has been stated, the reason for this is that the Commission wants to make market purchases a permanent source of supply for the scheme when there are no longer the intervention stocks that used to exist in the Union. They have gone and the Commission wants to turn to the market.
The European Union Committee of the House has recommended that the objection on the grounds of subsidiarity that applied to the earlier proposal applies equally to the new one, and that we should issue the revised opinion in paragraphs 5 to 11 of the committee’s report. I agree that we should be consistent and follow the advice of our European Committee. Of course there may be good reasons for supplying food to the most deprived citizens, but today we are concerned only to judge whether this might be done at EU level and on the EU budget. The principle of subsidiarity that is in the treaty on the European Union in Article 5(3) states inter alia that,
“the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”.
We do not agree that this proposal corresponds to that part of the treaty.
Although the principle of subsidiarity may not have much impact, it is none the less an important provision. It is in line with much of British opinion and we should play our role in seeking to ensure that it is respected. As we seldom see the text of a Commission proposal for legislation in this Chamber, I would add three short comments. First, the Commission proposal, which as usual is clearly drafted and easy to understand, is not a law. Bureaucrats in Brussels cannot and do not make laws on a subject such as this. Substantive laws are made jointly by the Ministers of the member states in the Council and the European Parliament. This may seem self-evident, but in view of the widespread public misunderstanding, I emphasise it in this case.
Secondly, it is interesting to note that the European Court of Justice annulled provisions of the earlier proposal because the legal base was not sufficient, showing the value of the oversight by the court. Thirdly, and lastly, as has already been stated, this case shows clearly the transformation of the agricultural policy of the Union—the old CAP—as market intervention has been removed or drastically reduced and intervention stocks are no longer generally available for this scheme. I support the proposal of the European Union Committee of this House.
The Earl of Caithness
My Lords, I am delighted to follow and to support everything that has been said by the noble Lord, Lord Carter of Coles; our committee chairman the noble Lord, Lord Roper; and the noble Lord, Lord Williamson, particularly with his experience of dealing with the situation when it was entirely different. I propose to add nothing to what they say, but to ask a few questions of my noble friend. Does he agree with me that this is a serious matter? As far as I understand it, this is only the third reasoned opinion that this House has given, but it is identical to the one we passed on 3 November. Why are reasoned opinions passed by this House taken so lightly by the Commission? What negotiations has the Minister had with the Commission? What was its reaction to our previous reasoned opinion?
It is all very well for the Commission to make a slight tweak to what it presents to us because the European Court of Justice ruled it out of order, but that does not satisfy me. I want to know what the Commission has done to take on board our concerns. I hope my noble friend will update me on that. If the Commission does not take on board member states’ concerns about reasoned opinion, there is no point in us producing reasoned opinion. If it is as dismissive as it has been to date, it will only intensify the disregard and dislike of the Commission that many in this country have.
May I also ask the Minister about the current state of negotiations? I was appalled to read the letter from his fellow Minister, Mr Paice, of 15 November, in which the Germans seem to have decided with the French in, if no longer smoke-filled rooms, the corridors of power to do some dirty deal and produce a draft joint minute telling the rest of the European Union’s members what they can accept from the Germans and the French. That is pretty unacceptable, too. I hope that he has made strong representation to the Germans about this. Surely it is wrong in principle, as has been well said, for some sort of shady deal in which this matter is done at European level rather than at member-state level to the end of 2013. Let us hope that in negotiations about what will happen after that, when the French will be keen to continue this into the next round, the Germans will be in a weaker position than they would be if they remained firm and principled.
Baroness Sharp of Guildford
I should declare an interest as a member of the EU Sub-Committee D, which has brought forward this opinion. It has now considered this and similar proposals from the Commission on three occasions. On all three, it has taken the view that the proposal has little justification now that intervention stocks have more or less disappeared. Redistribution to deprived groups within society to relieve their poverty is essentially, we maintain, a matter for member states, not for the Union, and it is really ridiculous that CAP funds—€500 million—should be used to buy foodstuffs on the markets for such redistribution. If anything, such purchases would tend to drive prices up and exacerbate food poverty rather than the reverse.
Baroness Byford
My Lords, I should like to reinforce what my noble friend Lady Sharp has just said. I declare that I am also a member of Sub-Committee D. Unfortunately, through illness, I could not be here last year to participate in the discussions. I have one or two basic questions for my noble friend when he comes to reply. Like others, I certainly think it is the responsibility of individual member states to look after those who are in need; that is the best way to supply it.
However, the proposal was to raise the sum of money to €500 million. My question to my noble friend is: which countries have benefited from it and how much have they had? Although the UK takes the very clear stance that it should be done locally, which I hope my noble friend will reflect in his comments, clearly the money will come from Europe, to which we contribute. If the Minister has figures that he can share with us tonight, I would be interested to hear them. If he does not, perhaps he will write to us to let us know. It seems a very unusual situation—to be opposed to something that is being proposed and will be imposed, over which we have no control except to have the debate that we are having here tonight. I should just like to reinforce my concerns about the way in which it is being proposed.
Some 17 member states and some 18 million people benefited back in 2010, but, as other noble Lords have said, when there was a surplus it made sense to use it and distribute it. However, that is not the situation that we face today. I assure noble Lords that buying in from the market is not the cheapest way to do things. Therefore, we look to my noble friend for some steer on the Government’s thinking about how they will deal with what is proposed, and how we can say, “No, we don’t think this is a good idea”. As one of the member states, we are presumably committed to providing that money up front.
I apologise to other noble Lords for not being able to take part in discussions last year through illness, but I am very glad that we have had the debate tonight. I reinforce my support for the Motion moved by the noble Lord, Lord Carter, and for the comments of other noble Lords. Clearly the situation should not continue.
Lord Hylton
My Lords, it is very good to hear the principle of subsidiarity being upheld and defended. I am also inclined to think that this House should be consistent in maintaining the reasoned opinions that it has previously given.
The Commission, and perhaps some member states, might like to examine how food stamps in the United States have worked out in practice. The United States probably has less comprehensive and less long-term social welfare arrangements, compared to many European countries. On the other hand, I expect those who devised the food stamp scheme took full account of the interests of commercial food producers and of the market generally.
I conclude by asking the Government how many civil servants within the Commission have been employed, or are still employed, in dealing with these matters. If things go ahead in the way that we wish, will some of them no longer be needed? What will happen to them? Having said that, I support the Motion.
Lord Grantchester
Like others, I begin by thanking the noble Lord, Lord Roper, and my noble friend Lord Carter of Coles for the work of European Union Committees that they chair and for their exposition tonight. The House has heard that this is essentially a repeat of the Motion debated on 3 November last year, since the amended Commission proposal does not materially alter the thrust of the original document. All sides of the House concur that the revised food distribution programme is still defective, as the substance and objective of the measure remain basically the same.
We have heard how the proposal has fared since the debate last year. In April this year, the European Court of Justice annulled the provisions of the 2009 distribution plan providing for purchases on the market. As a consequence, the budget for 2012, based entirely on intervention stocks, accounts for only €113 million against a proposed €500 million. This is a success indeed against the mission creep of the original scheme. However, in July, the European Parliament called on the Commission and the Council to develop a solution to avoid a sharp cutback in food aid as a result of the reduction in funding. The memorandum states:
“Numerous representations of the European civil society, ranging from local authorities to NGOs and charities, have expressed their worries for the future of the scheme”.
This suggests that it will not be a simple matter to resolve the situation in the manner this House would wish. The Minister at last year’s debate, the noble Lord, Lord Henley, assured the House that no charitable organisations in this country had asked the Government to participate in the scheme. He also stated that,
“no member state at the moment actually supports the scheme”.—[Official Report, 3/11/10; col. 1691.]
Where does the support for this programme seem to come from? There does not appear to be a member state that looks on this as part of its budget. Is there any similarity or region characteristic to the 18 million people said to have benefited as recently as 2010?
On cofinancing, the memorandum states, in very similar fashion, and again on page 4:
“National authorities of participating member states and very numerous representatives from the civil society have recently expressed their wish for the scheme to remain fully funded out of the EU budget”.
What discussions have taken place between those member states and the Government? While the Minister last November, the noble Lord, Lord Henley, commented that there was some way to go before this proposal would succeed, the intervening period seems to underline that the proposal’s supporters will not easily be deterred. The Economic and Social Committee and the Committee of the Regions of the European Union also came out in favour in January this year.
I support the Motion in the name of the noble Lord, Lord Roper, and commend the committee for its deliberations. I understand that although the question of subsidiarity did not feature in the treaty of Rome, the position is covered under the Lisbon treaty that, in matters of shared competence, the EU can act only and in so far as the objectives of the proposal cannot be sufficiently achieved by member states. Could the Minister clarify the Government’s position? Are the Government content that the reversal to the original intention to distribute only out of intervention stocks could still continue, albeit now on a much reduced budget? Do the Government consider that the Treaty on the Functioning of the European Union can be used as a legal base to the amended proposal? I look forward to the Minister’s update and his proposals to carry forward the determination shown tonight by all sides of the House against the amended proposal.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, I am grateful to the noble Lord, Lord Roper, and the EU Committee for giving us the opportunity to debate this matter this evening, and indeed to the noble Lord, Lord Carter of Coles, for introducing our debate and for chairing the committee. Its report is welcome. This debate has been opportune and I am able to update noble Lords on meetings as recent as today. Let me make it quite clear at the outset that the Government continue to share the committee’s view that the Commission’s latest proposal is not consistent with the subsidiarity principle. In that position it is supported not only by the committee but by all speakers in our debate this evening, so many of whom, I am pleased to see, are members of the committee.
I know that your Lordships are well aware of the background to this scheme, and the noble Lord, Lord Williamson, pointed out that we had debated this topic as recently as last November. When the scheme was first introduced in 1987, it was used as a mechanism to derive benefit from the growing intervention stocks and to save European embarrassment in running down these stockpiles. I point out to my noble friend Lady Byford that the 18 million people who benefited from these stockpiles came mainly from the following list of countries. In the 2012 allocation, the countries were: Spain, €18 million; France, €15 million; Italy, €22 million; Poland, €17 million; and Romania, €12 million. In fact, all member states participate, other than Denmark, Germany, Cyprus, the Netherlands, Austria, Sweden and the UK.
Subsidiarity Assessment: Food Distribution (Reasoned Opinion)
Lord Roper
To resolve that this House considers that the amended Commission Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No.1290/2005 and Council Regulation (EC) No.1234/2007 as regards distribution of food products to the most deprived persons in the Union (COM(2011)634, Council Document 15054/11) does not comply with the principle of subsidiarity, for the reasons set out in the 23rd Report of the European Union Committee, Session 2010-12 (HL Paper 217); and, in accordance with Article 6 of the Protocol on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the Parliaments to forward this reasoned opinion to the Presidents of the European institutions.
Health and Social Care Bill
(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Patel
“13L1 Duty in respect of education and training
(1) The Board must promote education and training of the health care workforce, having taken note of the responsibilities of the regulatory authorities, academic and professional organisations, and consulted Health Education England.
(2) In exercising its functions, Health Education England must take steps to ensure that providers of health services in England have due regard to any minimum numbers of training placements that it may specify.”
Lord Patel
My Lords, we return yet again to education and training. There is so much anxiety about the issue of education and training and workforce planning that I have had several representations, in particular one from the Royal College of General Practitioners.
Government Amendment 43 places a duty on the Secretary of State to ensure that there is an effective system for the planning and delivery of education and training of the healthcare workforce. In order for this to be an effective system, a duty must be placed on the NHS Commissioning Board to promote education and training. This amendment seeks to do exactly that. As the board is nationally accountable for the outcomes achieved in the NHS and is also tasked with providing,
“the support and direction necessary to improve quality and patient outcomes and safeguard the core values of the NHS”,
it is only right that this duty to promote education and training is included as part of the core responsibilities of the NHS Commissioning Board alongside the existing duties in respect of research, variation in the provision of health services, and so on.
We must try to get education and training structures right so that the long-term sustainability of the health service is maintained with patient care continually improving. This must be reflected in the approach taken to commissioning, with the NHS Commissioning Board taking note of the needs identified by regulatory authorities and academic and professional organisations so that plans are in line with national strategies. In carrying out this important role the board should consult Health Education England as it has a vital role in providing sector-wide leadership and oversight of workforce planning, education and training in the NHS.
The second part of my amendment deals explicitly with the role of Health Education England, as it will oversee the current system for providing education and training via a levy set on providers, and aims to make sure that there is adequate capacity in training to meet the needs of the health service. Under the current proposals, healthcare providers are to work together in provider-led networks to manage the planning and commissioning of education and training. However, if there is no specification of the minimum number of placements—the minimum number of trainees that should be provided in each sector—providers, especially those such as alternative or private providers that might work to make profit, with shareholders to answer to and an increasing range of competitors, will have little impetus to provide adequate numbers in the long term. The future of the NHS depends on having sufficient numbers of trainees in all specialties, including general practice, and the training of the next generation of doctors and other healthcare professionals will be put at risk if these plans are not strengthened. Furthermore, with the likely greater specialisation of some providers, and the non-requirement for all providers to provide educational opportunities, there is a risk that the overall quality of postgraduate generalist medical education will be affected due to reduced opportunities to widen the range of disease types and treatments that the students will see.
The policy of any qualified provider, alongside the pressures of the Nicholson challenge, should not be allowed to affect the provision of education and training by providers, whether they are new or old. Health Education England should therefore be tasked with taking steps to set a minimum number of trainee placements for each sector within the health service and to hold providers to account where necessary.
The amendment demonstrates the anxiety felt by a whole range of people in different parts of training and education. I know that the chairman of the Academy of Medical Royal Colleges, the medical school deans and the postgraduate deans have recently sent a letter to the Secretary of State expressing their concerns. I hope that it will be possible to get this right with a solution that is acceptable to all sides, including the Government, so that we have in the Bill something which does not affect government policy but demonstrates that the Government are serious about making sure that the education and training of the healthcare workforce will be a priority.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, it may assist the Committee if I indicate at this early point in the debate that the Government are extremely sympathetic to this group of amendments. As noble Lords will know, I have already committed to publishing, prior to Report, a much more detailed set of proposals for health education and training in the light of the forthcoming recommendations of the NHS Future Forum, and I hope that this will prove helpful. However, I can now go further.
These amendments focus on how commissioners in the new system will foster high-quality education and training in the health sector and on the potential role of regulators and Health Education England in supporting the education and training system. The Government have listened carefully and we are persuaded by the intent behind these proposals. I therefore now commit to taking away the amendments, considering them in a constructive spirit and bringing forward our own proposals on Report aimed at addressing the issues raised by the amendments. I hope that the Committee will welcome this undertaking. I am of course willing to meet noble Lords between now and Report to discuss the underlying issues further.
Lord Patel
I am grateful to the Minister for those comments and am greatly encouraged.
Baroness Finlay of Llandaff
I add my thanks for the Minister’s remarks. I look forward to seeing amendments which thread education and training through all parts of the Bill with duties on everybody at every level.
Lord Walton of Detchant
The Minister has completely taken the wind out of my sails. I had every intention of going at this hammer and tongs because all the medical organisations and all those involved in education and training are deeply concerned about the absence of detail in the Bill. The Minister has now reassured us greatly. We look forward earnestly and with keen anticipation to seeing what he proposes for the Report stage and hope that it will be adequate.
Baroness Emerton
I rise without notes, which is very unusual for me, to thank the Minister very much indeed. There is anxiety about education among nurses, midwives and particularly community nurses—they are getting very agitated. Therefore, I am absolutely delighted that we shall see something soon.
Lord Kakkar
My Lords, I, too, want to congratulate the Minister on his very helpful statement on education and training which is warmly welcomed not only in this Chamber but I suspect broadly through the medical and healthcare professions. This issue has caused tremendous anxiety. To provide clarity and the opportunity for it to be addressed in a constructive way on Report is genuinely welcome.
Lord Rooker
I, too, welcome the Minister’s statement. He will know that I have no qualifications in this but I have raised the issue of nurse training twice in the House this year—in the debate in March and at Question Time in October. I just want a point clarified. The amendment of the noble Lord, Lord Patel, refers to the board promoting but,
“having taken note of the responsibilities of the regulatory authorities”.
Does the Minister include possible changes and recommendations to the regulatory authorities in terms of their aspect of education and training?
Baroness Jolly
Baroness Jolly
I will be brief so perhaps we can make a little more progress this evening. These four amendments come as a group; originally they were in two groups of two, but actually they hang together as a suite. They are probing amendments, and I thank the Royal College of Paediatrics and Child Health for its help with them. These amendments are intended to arrange for the organisation of carer children and young people, particularly young people who are vulnerable, and are about guaranteeing their safety and well-being and safeguarding them. When I was rereading the amendments earlier and making my notes I realised that they are not in the context of children necessarily and thought that they might just as easily apply to vulnerable adults, but certainly the intention was around children.
Successive Governments have tried without an awful lot of visible success—or perhaps there have been successes, but with some high-level and visible failures—to integrate services for young people. From Victoria Climbié to Baby P, there are still issues around silos not talking to each other. We have not got integration absolutely right.
In many ways, the Bill does not help streamline services for young people: if you are under five and going to be looked after by health visitors it is the responsibility of the board; if you are over five, school nurses come under the auspices of the health and well-being boards; primary services, local services, mental health and acute services are all under clinical commissioning groups. Within the Bill there are several different organisations responsible for delivering services to young people.
I will very quickly go through the meaning of all the amendments. Amendment 135AA concerns the general duties of the board in promoting integration. The wording of the Bill encourages commissioning groups to enter into Section 75 arrangements with local authorities. The amendment suggests that we move to mandating—and it occurs to me that somebody really should produce for this House a sliding scale of verbs from “may” right up to “mandate” so that we can work out exactly where they all sit within the hierarchy. Certainly this is a probing amendment, however, so I am using the verb “to mandate”. We are talking about Section 75 arrangements involving pooled, shared budgets. Shared budgets will give you shared ownership and shared solutions to problems. With shared solutions one will get shared decision-making. For this vulnerable group, we need shared decision-making.
Amendment 197BA concerns the general duties of clinical commissioning groups. It covers the duty to obtain appropriate advice. The intention of the amendment is to add in experts in maltreatment. Nobody could gainsay that. Whether it needs to be in the Bill, I do not know. We would appreciate some indication from the Minister on this.
The third amendment in the group concerns the establishment of health and well-being boards. It would add to the board a representative who is a health professional, for safeguarding. The final amendment in the group, Amendment 331AB, concerns the function of health and well-being boards and the duty to encourage integrated working. Again, it uses the word “mandate”, which I appreciate is at the top of the scale. It mandates people who work in health and social care to work in an integrated manner.
I do not apologise for the verb, because the situation is very serious. Young people who need the most care run the risk of falling into holes where there is nothing joined up. We are saying that the Bill puts the patient first and we talk about integration running all the way through the Bill. Sadly, it does not look like this will happen in children's services. The amendments in the group try to make it happen. Perhaps the Minister will offer clarity on the level of detail—which clearly is not in the Bill—that will be in secondary legislation to help with this. Successive Governments have tried to get this right but it has not always worked on the ground. This is an opportunity to rectify that. I beg to move.
Lord Beecham
My Lords, I sympathise with the motives of the noble Baroness who tabled the amendments but I am not sure whether they are persuasive. Mandating is not necessarily the right approach. It is certainly not the correct approach for health and well-being boards, because they are not executive decision-making bodies. We hope that the boards will produce joint strategic needs assessments, to which the clinical commissioning groups will have to have regard. There will certainly be joint working there, but the boards will not be in a position to mandate anybody. Therefore, while the aspiration is noble—appropriately—the phraseology does not necessarily achieve what is intended.
I expect the Minister to say that he envisages that the precise object that the noble Baroness is pursuing will be taken into consideration and acted on by the relevant parties: in this case clinical commissioning groups in particular. Obviously these are probing amendments. They should not be reflected in a substantive amendment put to the vote—unless of course the noble Earl departs from his usual practice and accepts them.
Earl Howe
My Lords, the amendments concern the issues of integration and advice, and in particular the use of arrangements under Section 75 of the National Health Service Act 2006 between the authorities and clinical commissioning groups. Section 75 arrangements would effectively be a means for CCGs and local authorities to work together in an integrated manner, often to commission health and social care services. The Bill contains a number of provisions to encourage and enable the NHS, local government and other sectors to improve patient outcomes through more effective co-ordinated working. It provides a basis for better collaboration, partnership working and integration across local government and the NHS at all levels.
Health and well-being boards will have a strong role in promoting joined-up commissioning between health, public health and social care. Through their duty to promote integrated working between commissioners, they will also be in a good position to be able to promote more integrated provision for patients, social care service users and carers. They will also be able to encourage close working between commissioning of social care, public health and NHS services and aspects of the wider local authority agenda that also influence health and well-being, such as housing, education and the environment.
Baroness Jolly
I thank the Minister very much for his reply. I am more than happy to withdraw my amendment.
Baroness Thornton
Baroness Thornton
My Lords, three amendments are tabled in this group in my name and those of my noble friends. They are principally probing in nature on some important points that need clarification. Amendment 136 would leave out the duty on the board in respect of the variation of the provision of health services; while Amendment 268 would leave out the instruction that:
“Monitor must not exercise its functions for the purpose of causing a variation in the proportion of health care services”;
while the third element of the group seeks that Clause 144 should not stand part. This clause relates to the:
“Secretary of State’s duty as respects variation in provision of health services”.
It would seem that this group of provisions provides the Secretary of State, Monitor or the NHS Commissioning Board with the ability to increase or decrease the share of market for the provision of health services held by a particular group of providers. I assume that this also applies to CCGs, but I would be grateful to the noble Earl if he could explain whether that is the case. I would also be grateful if he could say how these will impact on the provision of primary medical services and the contracting for them by the NHS Commissioning Board. Can he further say how this will affect the commissioning of services by CCGs when they propose to commission services either from hospitals, other primary care providers or private sector hospitals? I suppose that what we are seeking is clarification of the definition of “providers”. For example, let us say that a strategic decision was made by a clinical commissioning group to switch priority from secondary care to community care and that it was a deliberate decision to increase or decrease the share in the market by a particular group of providers, what would be the implications of that for other providers? We also need to think about the issues of cherry-picking that have been mentioned.
This clause was added with a certain amount of fanfare as the Government’s response to the Future Forum and attracted claims of victory by the Liberal Democrats over the threat of privatisation. I give them credit for trying to protect the NHS from the full force of the then draft Bill. But the reason why we want to explore these provisions is that we are concerned that they will not achieve what has been claimed for them. As with so many concessions, you need to scratch beneath the surface to see whether they actually achieve what you want from them.
First, are these provisions effective in achieving the aim of preventing the overt promotion of private companies in the National Health Service? The impact assessment of the Bill still states that the aim is to promote a so-called “fair playing field”, and it goes on to say that, an important way of making the market work will be to rebalance so-called fair playing field distortions, citing a report which calculated that the NHS enjoys a £14 cost advantage over the private sector for every £100 it spends. We know that at present around 3 per cent of NHS funding is spent on the private sector. This is also taken as an indicator of an unfair playing field for private providers. Therefore, in order to achieve parity between the sectors, the Bill requires that all CCGs, Monitor and the Secretary of State should provide extra subsidies to the private sector, and to promote it so that it does have parity. If this does not happen then, according to the Government’s own impact assessments, these reforms will fail.
We also know that other words and actions from the Government suggest that the promotion of the private sector is continuing unabated. The noble Earl himself reportedly told a private health company conference that the reforms offer huge opportunities for the private sector. Most recently, we have had the continuing agenda confirmed by an operating framework that sets out both the agenda for the commercialisation of commissioning support, which is a deliberate policy to remove commissioning from the public sector, and the announcement of a performance measure of the trend in value/volume of patients being treated at non-NHS hospitals. On this side of the House we are unconvinced that this intention has gone out of the Bill and remain concerned that the long-term aim of using competition law and the market to provide a wedge for privatisation has not been removed. I ask the Liberal Democrats to look at these questions very carefully. On this side of the House we question this clause because we do not think the NHS can—or should—be blind to the governance and ownership of its providers.
We think it is right that the Secretary of State should be able to say that the NHS is the preferred provider in certain situations, particularly where existing services are performing well through performance management, collaboration and professional motivation. It may be desirable for a commissioner to maintain continuity of emergency and critical care services that are not amenable to the open market and in order to do so it may need to manage the system of providers locally. We are learning the hard way from Southern Cross what happens when commissioners turn a blind eye to the governance and business models of providers of social care. We should not be afraid of saying that organisations with a social purpose should sometimes be promoted above those driven by narrow financial interests.
That is not about preserving the world the way it is, or perhaps once was. We think this clause could actively prevent policies that this side supports and which have been promoted in government, including the right for NHS staff to request to set up a mutual social enterprise—we will be discussing that in a later group of amendments—with support to do so and protections from well-financed bids from multinational companies. We understood that the parties opposite supported these aims as well, but in supporting this clause they may show to the third sector that they will have no more assistance in development from this Secretary of State.
It is worth noting that while the amendment was introduced following the Future Forum, Peers will have received a briefing from ACEVO whose chief executive chaired the choice and competition strand of the Future Forum exercise. Therefore, my final remarks are from that briefing. This is what ACEVO has said:
“We believe that the unintended consequences of the Government’s policy to ‘outlaw any policy to increase the market share of any particular sector or provider’ would be that people in the NHS Commissioning Board and NHS more widely would interpret the Health and Social Care Bill to mean that capacity building and other policies which support the development of voluntary and community organisations would become illegal”.
It goes on to say that this would have the unintended consequences of:
“Stymying various Government policies, from building the capacity of charities and community groups to supporting public sector staff to form new mutuals/social enterprises (the Department of Health previously said it wanted to ‘create the largest and most vibrant social enterprise sector in the world’ … Making it harder for charities and community groups to provide services and support that many (particularly those who are vulnerable and hard to reach) rely on”.
This is a very serious probing amendment. Between now and Report it is going to be very important that all those organisations and parties who think that they have solved the problem, consider that they may, in fact, have made the situation worse. I beg to move.
Baroness Williams of Crosby
My Lords, I remain puzzled by these amendments from the Labour Benches because it seems quite clear that the purpose of the provision was to make sure that the commissioning groups and the board would not use their considerable influence and power to change, for dogmatic reasons, the balance between private and public sector provision. That must be right. It must be right that only quality and the response to patients’ needs should determine what that balance is. I very much welcome this provision. I thought it was an important safeguard against anybody seeing the Bill as having a particular dogmatic purpose. I was quite surprised that the Labour Front Bench took a different view and put down these amendments. It seems as if it was determined to find some flaw in this provision and it is a provision that is intended to show genuine commitment to a level playing field. It is perfectly proper for the Labour Front Bench to pursue questions about the provision but it is quite clear that it refuses to take the provision, even for a moment, at face value.
I have one or two questions. I know that the hour is late so I do not intend to keep the House for more than a moment or two, but there are some interesting questions to raise. One question was about the position with regard to the partnership that has been advocated by the Minister in other parts of this Bill and the deliberate attempt to reach partnerships between the private and public sector. For example, the private sector in its role of innovating and coming up with new ideas would be very properly in some cases partnered with a public sector body, such as a clinical commissioning group. How does the Minister see that as compatible with the wording of the Bill?
The wording of the Bill is pretty clear. It relates first to the board and then to Monitor and makes it plain that in both cases those boards should not use their particular powers to advance the cause of one side or the other. Therefore, I found it puzzling that this set of amendments should be tabled—in particular the attempt to decide that Clause 144 should not stand part of the Bill.
With those words, I wait for the Minister’s reply. I do not want to delay the Committee, but I have to say that I was genuinely puzzled by the Labour Front Bench’s decision to put down amendments of this kind and to question Clause 144.
Baroness Thornton
I think that I explained to the noble Baroness earlier today that these are probing amendments. When we received the briefing from ACEVO, we were very concerned, and that is why we tabled the amendments. It is very important for those of us who have been promoting the voluntary sector all these years that we find out what the truth is. They are probing amendments; there is no intention at all to press them, and I said that from the outset. They are to explore the meaning and the effect of the provisions. Sometimes amendments can have unintended consequences. I hope that the noble Baroness will accept that this is not partisan; it is a genuine effort to get some explanation for how this part of the Bill might work.
Lord Warner
My Lords, I hesitate to intervene in this debate, but I am prompted by the intervention from the noble Baroness, Lady Williams of Crosby. I speak as someone who is probably some way away from the Labour Front Bench on the subject of competition. I do not start from the same position as my noble friend, but like her I am extremely puzzled about what the Government are trying to do. We may be in the realm of unintended consequences.
We go back to July 2010, when the Government published a White Paper that said that the aim was to make the NHS the largest set of social enterprises in the world. That was the Government’s policy. It is quite difficult to achieve that, I would suggest, without some capacity building—and I was one of the Ministers involved in setting up the Social Enterprise Unit in the department, under the previous Government. The Minister will know about the case of the East Surrey nurses and their attempt to set themselves up as a social enterprise. It is very difficult for people to set up these new forms and organisations without some assistance and capacity building.
Looking at the data, you can see that the voluntary and community sector currently delivers only a tiny proportion of NHS services. The National Audit Office estimated that over 2007-08 PCTs spent less than 0.5 per cent of the NHS budget on commissioning services and support from the voluntary sector. So we are dealing with a minute proportion of the provider side of the NHS when we talk about social enterprises and voluntary organisations. Those sectors cannot grow bigger without some assistance; they have to be given some help; there has to be some investment of resources in capacity building so that they can compete for contracts and provide alternative ways of providing services outside hospital in a community setting. In many parts of the country, they are the big hope for actually producing a set of services which are not based on in-patient care of individuals. We are never going to get to that brave new world without some capacity building. As far as I can see, in their attempt to reassure their coalition partners on the subject of competition the Government may have shot themselves in the foot on this issue.
We need some clarity about what the Government are up to on the subject of the voluntary and social enterprise sectors. Forget the private sector; we need to know how they will grow those sectors, which seems to be their declared aim, without some capacity building and without altering the proportion of services that those sectors provide in the coming years. I would be glad to be reassured by the noble Earl but, as I and ACEVO understand it, the Bill as drafted freezes the proportion. We need to understand from the Minister whether the Government are going to amend it to clarify that position, because it is certainly exercising the outside world.
Baroness Armstrong of Hill Top
My Lords, I, too, am extremely concerned about the provisions within the Bill. How are the Government going to implement the policy as stated in it? Is there going to be a general expansion of the health service, so that they can change the proportions of the private and the voluntary sector? I am concerned that, even in the private sector, there is going to need to be innovation and change. Are the Government going to do that on a one-in, one-out basis? Are they going to say that there can be expansion only in those areas of the country where, at the moment, there is no private sector? Are they going to do the same regarding the voluntary sector?
If there is going to be the development of hospices, for example, we know that one key area of concern for the Government is the whole handling of end-of-life care. I think there is unanimity across this House that hospices, Macmillan nurses and so on are probably the best organisations to deal with end-of-life care. I say this through being involved with an NHS trust: the trust would not want to be taking over those areas of responsibility from hospices. Yet this provision may well mean that there can be no development of hospices in this country and that as we discover areas where there is paucity of provision there may not be the opportunity for development, because it may change the proportion. This seems madness.
Earl Howe
My Lords, to put completely at rest the mind of the noble Baroness and, indeed, the minds of noble Lords, I assure her that she need have no anxiety. We are coming on to a group of amendments which deal specifically with social enterprise and the voluntary sector. I shall have more to say then, but I want to reassure her at this point.
Baroness Armstrong of Hill Top
My Lords, I might have more to say then too. However, we are dealing with what the Bill actually says and with what the Government said at the end of the pause. They said then that the Bill would “outlaw” Ministers arguing for an increase in the size of the three sector providers—public, private or third sector. That means that they want to preserve aspects of the third sector and of the private sector. However, it also means that it freezes in aspic what is there. I do not think that is in the interests of anyone.
I ask the Minister, so that he can perhaps come forward with replies to this in thinking about the next amendment: what is going to happen to the voluntary sector and social enterprise programme that the department currently runs? It was set up to maximise the extent to which third-sector organisations were able to achieve their full potential. There is also the social enterprise investment fund, which provides investment for social enterprises to start up, grow and develop in order to develop NHS services. There are real rumours that this is being finished and that it will not continue into the future.
Baroness Williams of Crosby
Might the noble Baroness consider more closely the actual wording of Clause 144? It refers to the Minister not being able to choose a variation for the purpose of choosing that variation; it does not in any way rule out the possibility of choosing that variation for the purpose of providing better provision for patients. It distinguishes between a direct political purpose and the purpose of doing what we all want, which is to provide a better service to patients. A great deal of what has been said in this short debate about the effect on the voluntary sector would therefore not stand up to very close and careful investigation.
Baroness Armstrong of Hill Top
My Lords, that is precisely the sort of reassurance and clarity that we are seeking from the Minister. At the moment there is real anxiety out there about this; whether we like it or not, that is the reality, and it is our job to tease out exactly what Ministers mean because they have given different messages about this.
The third area that I ask the Minister to be clear about is the future of the Health and Social Care Volunteering Fund, which is important as a means of supporting volunteering in the National Health Service. All three of those aspects are currently in the Department of Health and I want to see them continue. I would like some reassurance from the Government that they will continue. That would reassure me and, I am sure, people outside that the Government will continue to see the role of the voluntary sector grow in areas where it is most appropriate for it so to do.
Earl Howe
My Lords, the amendments take us to the fundamental issue of who should provide healthcare services. The Government are clear that there should continue to be a mixed economy in which the public, independent and voluntary sectors should all have opportunities to contribute in improving outcomes for patients. Our policy is therefore that services should be commissioned from those providers best able to meet the needs of patients and local communities. This is consistent with the previous Government’s policy as set out in principle 1 of the Principles and Rules for Co-operation and Competition, and we believe that it is commissioners who should be free to decide who can best meet patients’ needs and offer value for money for the taxpayer within a regulatory framework that ensures transparency and protects patients’ interests.
Although that has always been the Government’s position, the listening exercise earlier this year highlighted that some people had genuine fears about the Government’s long-term intentions for the NHS. The NHS Future Forum recommended that,
“the government should not seek to increase the role of the private sector as an end in itself”,
and that additional safeguards should be brought forward, so in another place we tabled amendments to the Bill that created the provisions in Clauses 20, 59 and 144. These prevent the NHS Commissioning Board, Monitor and, when he exercises certain functions, the Secretary of State from acting with the intention of varying the market share of any particular type of provider. Removing this provision from Clause 20 and deleting those at Clauses 59, 10 and 144 would leave it open to the NHS Commissioning Board, Monitor and the Secretary of State on exercising the relevant functions to distort the market in favour of, for example, private providers. We do not think that that would be in the best interests of patients or taxpayers. I hope that that has clarified matters.
Lord Warner
I am really puzzled by that. What happens in a big swathe of the country if Monitor or the national Commissioning Board considers that there is a 100 per cent public sector monopoly that is actually slowing down the improvement in services? Does that mean that they cannot, as a matter of policy in order to benefit patients, break that 100 per cent monopoly in a certain part of the country that is public and bring in, say, the East Surrey nurses or whoever as a social enterprise to reduce that 100 per cent to, say, 95 per cent? That would change the proportion of services in a chunk of the country, and that is what I understand competition to mean.
Earl Howe
My Lords, let me explain. Monitor cannot on its own do anything. It cannot drum up competition from thin air even if it wanted to. We will come to that in a later part of the Bill. The aim of these duties is to prevent national policies which aim explicitly to influence market share. The duty would apply in the same way as it does for secondary care—the noble Baroness, Lady Thornton, asked that question in the context of primary care. The board may take steps which have the effect of increasing market share in order to meet some other purpose—for example, filling a gap in provision—but the board cannot act with the aim or intention of increasing or decreasing the market share of a particular type of provider. That is the distinction. We are clear that there should be an absolute prohibition on Monitor and the board acting with the intention of varying the market share of a particular type of provider.
Baroness Thornton
My noble friend is puzzled and I am too. How will they do that? What mechanism will be used to change the market share?
Earl Howe
My point is that either for the board or Monitor to act with a specific view to change the market share for its own sake would run counter to these provisions. However, that does not mean that the market share of the NHS, the independent sector or the voluntary sector could not change. It depends entirely on what is seen to be in the interest of patients. In a particular area of the country, one might find that there was a considerable case for increasing the share of social enterprises in order to meet the needs of patients. That would not be illegal. What would be illegal would be the board setting out with the express intention of expanding a particular sector for the sake of it. That is the distinction here.
Baroness Armstrong of Hill Top
My Lords, could the Government never decide that it was important to increase the share of hospices as part of palliative and end-of-life care?
Earl Howe
The board and clinical commissioning groups might well decide that it was important to have more hospices. The question would be: who would provide them? It might be that a charity would provide those hospices. That is fine, as long as the justification is that the expansion in market provision is there to meet the needs of patients and that it is not some covert way to boost artificially a particular sector of the market, unrelated to patient needs. That is the distinction.
The concerns that noble Lords have raised, that these clauses would make it illegal for the department to build capacity in the voluntary and social enterprise sectors, are unfounded. This is neither the intention behind these clauses, nor is it their effect. As I have said, we will debate the third sector in the next group of amendments, but I can reassure noble Lords that we will ensure that procurement practices do not unfairly restrict the opportunities for charities, voluntary organisations and social enterprises to offer health and care services. We continue to value and support the many contributions that the voluntary and community sectors play in improving health and well-being for our communities; and there are a number of ways in which we can do that in a tangible fashion. We are already doing this, and the noble Baroness listed a number of the levers that we have at our disposal. I hope that the distinction I have outlined makes sense and that it will therefore reassure noble Lords that the fears they have expressed are groundless.
Lord Warner
Can I just be clear that I have understood this? If the national Commissioning Board or the Secretary of State, in pursuance of their duty under the Act to facilitate choice for patients, decided that one important way of expanding such choice was to increase the number of social enterprises and/or voluntary organisations in a particular service sector, would that be permitted under the Act?
Earl Howe
It is highly unlikely that that scenario would arise. What could happen is that the board could identify certain services where it felt that competition would serve the interests of patients. Let us take the example of children’s wheelchair services. If that choice offer were created by the board and Monitor created a tariff for those services, it would be up to local commissioners to decide whether to take advantage of that choice offer. There may be instances where that would be a very good thing to do. On the other hand, in other local areas clinical commissioning groups might find that there was no need to create a local market because the services were already adequate. It might be helpful if I write with some detailed examples of how this is expected to work.
The point that I want to emphasise is that the board’s decisions about who will supply particular services could result in one type of provider having a larger market share. That is fine, as long as the intention is to deliver a service that meets the needs of patients in an area. As I say, what is not acceptable is for a conscious decision to be taken to increase the market share of a particular sector just for the sake of it, unrelated to patient need.
Lord Greaves
My Lords, this has been a useful discussion. This clause takes a bit of reading but its meaning is quite clear and it was explained very carefully by the Minister and my noble friend Lady Williams. However, there is one point that I want to raise. I have an old fashioned, perhaps rather simple, view of legislation. When you read it, you should be able to understand what it means. The bit of this clause that is not good in this respect is new paragraph (b). New paragraph (a) very clearly says that the Secretary of State and these bodies cannot discriminate for ideological, dogmatic or general policy reasons in favour of either the public sector or the private sector. That is clearly there because of the concerns that the whole purpose of this legislation is to discriminate in favour of the private sector, as the Minister has explained very carefully.
However, new paragraph (b), which refers to what the Minister described as charities, voluntary organisations and social enterprises, refers to,
“some other aspect of their status”.
That is not clear and understandable legislation. I suggest that the Minister thinks seriously about coming back at a later stage and replacing those words with a clear explanation of what the Bill is referring to, which appears to be charities, voluntary organisations and social enterprises. If nobody else does so, I shall table an amendment on Report to replace the current wording with those words. However, I would prefer the Government to put into legislation words that ordinary people—or even the sort of extraordinary people who might want to read this legislation when it has been passed—can read and understand, rather than vague words such as,
“some other aspect of their status”.
Baroness Finlay of Llandaff
The Minister’s comments have been most helpful, so far as they have gone. Taking on board the comments made by the noble Lord, Lord Greaves, it will be helpful, when the Minister writes in response to this evening’s debate, to stipulate how the new arrangements will differ from what is currently available to commissioning by PCTs or by other groups. The voluntary sector works very well, by and large, with the current commissioning bodies and finds that it is viewed as good quality and value for money, by and large, though not all the time. The difference in the arrangements needs to be clarified in that letter so that people can really understand if there is a difference and where it is, and also to allay the fears which are quite widespread in the voluntary sector, as was stated so clearly by the noble Baroness, Lady Armstrong.
Earl Howe
My Lords, we will come quite soon, I hope, to Part 3 of the Bill, which deals with competition more generally. Much will be revealed at that time, but I can say to my noble friend Lord Greaves that I would be happy, if it would help him, to wrap up the meaning of that particular phrase in the letter which I am going to send on these examples. They are—I ask him to believe me—well chosen words.
Baroness Thornton
My Lords, I thank the Minister for his answer. I wish I could say that I now completely understand everything about these clauses, but I do not think that is true. I will read what the Minister has said and look forward to reading his letter. It may be that what we actually need is to have some discussion with the voluntary sector—with ACEVO, NCVO, the Social Enterprise Coalition—so that we, and they, can be completely clear that this is indeed a benign part of the Bill and is not going to affect their work or their future. If the noble Lord, Lord Greaves, thinks that this wording is a bit difficult, just wait until we get to Part 3. I beg leave to withdraw.
Lord Rooker
“( ) The Board may take specific action to support the development of the voluntary sector, social enterprises, co-operatives and mutuals as it considers appropriate.”
Lord Rooker
If the Minister’s words in the last debate mean anything at all, he will accept this amendment. It is as simple as that. It is his lifeboat. In fact, it is the lifeboat that—nothing personal to the Minister—will stop the team of Ministers becoming a laughing stock for the third sector, bearing in mind what was said last year, which we have heard a little bit about, and what is being done in this Bill. It will also stop them taking the Lib Dems for a ride. I heard some of the most profound words in our debates on the Bill uttered by the noble Baroness, Lady Williams of Crosby, at around 3.30 pm this afternoon, when she deeply questioned once again the motives of the endgame of this exercise. That is what she said; it is very profound and she has said it before. They are words that others have also used. What is the endgame of this process? To stop themselves being taken for a ride, the Lib Dems would do well to accept the amendment too. We have heard about creating opportunities and,
“the largest social enterprise sector in the world”.
Last year, the Secretary of State said there was,
“also opportunity because across government we are going to open up to new providers, and the voluntary sector is at the heart of that”.
That is what he actually said, before this Bill was drafted. I know you can get carried away on conference platforms, but as the Minister you are, at the end of the day, responsible. We have probably all done it, but the fact of the matter is that is what was said, and it could be held to be misleading. The amendment, which has come to me via Social Enterprise UK, is a lifeboat. It does not require anything, it says “may”, and it goes to the heart of what the Minister said about not trying to do it for ideological reasons. Clause 20, as drafted, may be used to prohibit any interventions that support the voluntary and social enterprise sectors. The fact that it can be used for that purpose is bad enough in itself and undermines the point which the noble Baroness, Lady Williams of Crosby, made earlier on. It would be a disaster. Therefore, the amendment, which has been looked at by those outside, would be of assistance.
Why do we want the amendment? In the previous debate, we heard the well rehearsed arguments for social enterprise and the voluntary sector providing a greater share of public services. They were the implications of the Secretary of State’s words at the conference last year. They are recognised and proven, and it is a trend that crosses all political parties. That point must be taken on board if the credibility of Ministers is to be maintained. Indeed, all parties in the House and next door support the passage of the Private Member’s Bill tabled by Chris White MP that would open up public service markets and require commissioners to consider how they might promote or improve the economic, social or environmental well-being of their local area through contracts. The parties are supporting that Bill in the other place. Are they kidding anyone or are they being genuine about support for a mixed economy, because this Bill, as drafted, could stop the mixed economy and stop any changes? I am not proposing my amendment for ideological reasons.
There are about 62,000 social enterprises in the UK. They contribute some £24 billion to the UK economy, and they need to be treated seriously, responsibly and as adults. Of these, a third operate in the healthcare sector. By the way, I am reliably informed that Circle is not one of them—whatever might have been put over as spin by the Department of Health. Add to that the vast number of voluntary and community organisations that are providing a huge range of health and social care, and you can see that knocking out their continued development—I repeat, continued development—would be a disaster for the market and most importantly for service users.
If there is to be a competitive market, and I do not argue against that, then it can operate only if there is a fully functioning market. We do not have a fully functioning market at present—it is embryonic. That is the difference and that is the point that did not come across in the Minister’s response to the earlier debate. Healthcare markets in England are, by any definition, in their infancy with regard to supply and demand sides. That must be the case as regards this Government, the previous Government and the one before that. Where both supply and demand sides are underdeveloped, I believe that open competition will result in high barriers to entry, limited choice and compromised quality and outcomes. We have seen a few examples of that in the past few years. A small number of large firms will dominate and there will not be the innovation or value that introducing competition is designed to bring about. There has to be another way of looking at this.
Knowledge barriers, capacity barriers and structural barriers put social enterprises, and voluntary and community groups, at a disadvantage. Knowledge and understanding of the social enterprise and voluntary sectors by the public sector has improved but remains particularly weak in the healthcare sector. Without understanding the sector, commissioning may be designed in such a way that precludes its involvement. It will be all right for the smart lawyers to argue about the way it was done, but the consequences are snuffed out before they start. That is the difficulty we are seeking to overcome.
On capacity, we know that a lot of community-based organisations could play, and currently do play, a huge role in improving healthcare through early intervention, community-level delivery, advocacy and behaviour change, but they lack the capacity to engage with competitive tendering, and alternative approaches specifically designed for them can make a huge difference. The Bill as currently drafted may—I repeat, may—prevent commissioners from feeling that they have the power to do this. That is the point. If we had a fully functioning market, the situation would be slightly different.
Structurally, we know from the central Surrey case—as has been repeated several times—and others that barriers to entry can be set structurally too high for many social enterprises. We are not on a level playing field. Not everyone is a big firm or a multinational. That is not the purpose of the exercise, which is to allow 1,000 flowers to bloom in the interests of the patients. That is what it is about. However, the fact is that the entry level can be set structurally too high for many social enterprises and voluntary organisations that lack the ability to raise the same levels of capital as private organisations but are often better placed when it comes to quality of care. That is the other side of the balance. They reinvest their profits into the organisations, which means that their balance sheets always appear less strong. It is an inevitable consequence but a strength when it comes to service delivery.
The Bill must make provision for the continued development of these groups and certain interventions need to be made; without this we will not see the realisation of a truly plural ambition for these reforms. As has already been said, where would we be without the hospice movement, community drug and alcohol projects, the range of mental health work and so on? The innovation and user-centred services will disappear to the detriment of all. The multinationals do not come with that ethos to start with and what is really wrong with Clause 20 is that it assumes an already existing level playing field where there is an established mixed market. I challenge that assumption which underlines this clause and, although I would not dream of questioning him personally, I challenge the Minister that if he is serious about what he said in answer to the last debate, he must be prepared to come back with something in the Bill which does not snuff out social enterprise in the way that this Bill, currently structured, will do. I beg to move.
Lord Warner
My Lords, I speak in support of my noble friend Lord Rooker’s amendment. I pose a couple of questions and add a couple of facts for the Minister. I will not repeat what I said on the previous group of amendments. I speak from two perspectives; first, as a former chairman of a number of voluntary organisations competing for public service contracts; and, secondly, as the former Minister involved in the setting up of entities at the centre to facilitate the growth of social enterprises and voluntary organisations to participate in NHS service provision.
I want to mention some of the things which were set up at the centre because you could not rely on people at local level to actually provide this kind of help to the voluntary and social enterprise sector. Can the Minister say whether these initiatives will continue in this brave new world we are going into? The first one was the Department of Health voluntary sector and social enterprise programme, which was set up to maximise,
“the extent to which third sector organisations are able to achieve their full potential”.
That was a central unit aiming to help people to develop their capacity. There was the social enterprise investment fund, which provides investment to social enterprises to start up, grow and develop in order to deliver NHS services. The third I would mention is the health and social care volunteering fund—both the local and national programmes—which supports volunteering in health and social care.
Those are three areas where an initiative had to be taken well away from the local level to ensure there was some capacity building of social enterprises and voluntary organisations. If those are disbanded in the guise of leaving it up to clinical commissioning groups, it is very difficult to see how those sectors will be able to participate.
Now briefly, I turn to my experiences as a chairman of voluntary organisations. Voluntary organisations simply do not have the capacity to go at risk for entry into new markets without some guarantees. They often do not have the working capital or access to loan facilities because there is no guarantee of the revenue streams that would fund those loans. Unless they happen to have very large reserves, which many do not, they cannot easily enter that market without a big brother to help them over their first steps. I cannot see how we can move in this direction without an amendment of the kind that my noble friend has proposed, and which has backing it some capacity to help these sectors grow when the need arises rather than just leaving it all to clinical commissioning groups.
I hope that the Minister can give us some reassurances about how that capacity-building capability can continue to be preserved and developed because, if it is not, we will see a growing volume of partnerships between the private sector and the voluntary sector, because they have the capacity to borrow money and provide the working capital to help those organisations to play their role in developing services in the NHS.
Baroness Armstrong of Hill Top
My Lords, I, too, support the amendment. It is critical that the Government are clear as to how they will support and enable the voluntary and community sector to participate in ways that we know, from experience, are valuable to the National Health Service. In my previous intervention, I mentioned the three parts of the DH which the Minister referred to as levers. It is important that he is clear with the Committee that those parts of the Department of Health will remain, and that the financial contribution put into the fund will continue in order to support the capacity building and the ability of the voluntary sector to put in bids.
The problem is that the Government's rhetoric has not so far been followed through in action. I take, for example, the work programme, which came not from the Department of Health but from the Department for Work and Pensions. Serious commitment was given in the House that significant parts of the work programme would be contracted to the voluntary sector. This simply has not happened. In most of it, the voluntary sector was a very lowly partner. I must say that the organisation I am involved with in the north-east, which is now the largest voluntary organisation in the north-east, is a lowly partner with others in the work programme. We have not signed anything, because we cannot afford to go into it unless we get more than what is left after everyone else has taken their cut, because we are at the bottom, committed to work with only the most disadvantaged, who are therefore the most difficult to get into work. It is six months later, and we are not yet anywhere near agreeing to go in with the other groups. We have to cover our costs.
It is very important that the Government do not follow the same route in the health service. I know that that will be done locally, which the work programme was not, but it is very important. I also have experience through the voluntary organisation on negotiating on detox facilities and facilities for addicts. It has cost us an enormous amount to finally be allowed to provide the service. Because we are providing a unique service and no one else in the National Health Service in the region is following what is called the recovery method, rather than methadone and so on, we have decided that it is worth pursuing that. I must tell the Minister that, were we not such a large organisation, we would struggle. Were we not therefore so prepared to continue to work on it, it simply would not happen. It is vital that the Government give the voluntary sector much more reassurance than they have to date in these areas. Accepting my noble friend’s very good amendment would be one way to do that.
Baroness Williams of Crosby
The noble Lord will know that the amendment moved by the noble Lord, Lord Rooker, has in it some very serious considerations about how to build up the voluntary sector and indeed build up the whole relationship of the community to the National Health Service. However, in all fairness, from the very beginning the Minister has talked a great deal about the role of the community and about the way in which the National Health Service can become more open to patients, or more open to those local community forces that can assist it in bringing out the best possible outcome for patients. With respect, it is a little unfair for the Opposition to talk as if that had not happened.
Indeed, if one looks closely at the motivation of the Bill—it is well known that I have considerable reservations about some aspects about it—one of the aspects that I like the most is the quite clear commitment to the idea of the National Health Service being in partnership with local authorities, health and well-being boards, and the healthwatch system and so forth. All of these organisations are new and all are about involving citizens, voluntary organisations and community organisations in the best possible delivery of healthcare. I have to say that the highly centralised control that was exercised in the early stages of the Labour Government, and indeed right up until 2007, really is quite strikingly different from the attempt to decentralise and create partnerships between local authorities, citizens’ groups and the National Health Service itself.
With great respect, the Minister would be quite fair in saying that he has tried to make the point, in almost all the debates that we have had on this issue, of the importance of the voluntary sector and of the community that can protect and help the National Health Service. Although I would readily agree that the noble Lord, Lord Rooker, has made some very important and germane points which should be addressed, I do not want to give the impression abroad that somehow the Government are less keen on the voluntary sector than the Labour Government were in their day.
Lord Warner
My Lords, would the noble Baroness accept from me, as someone who was this great centraliser sitting in Richmond House, that we actually set up these capacity-building capabilities for social enterprise in the voluntary sector, in response to those sectors’ concerns about their inability to make headway locally and enter the market to provide services in those areas? That was not a centralising tendency on our part. It was actually a response to people saying to us that we needed more capacity-building capability at the centre because it was not being provided at the local level.
Baroness Jolly
My Lords, I can give an example of where it has been provided. Today I have been talking to the operations director of Peninsula Health Care. That was the provider arm for the Cornwall PCT which was providing community hospitals and community services, and which is now a community interest company as of 1 October 2011. It has already brought across all the arrangements that it has with its local authority; Section 75 and so on, shared budgets for equipment, and all sorts of innovative work alongside.
The whole thrust of the amendment of the noble Lord, Lord Rooker, was part of our manifesto, it was part of the coalition agreement, and I feel quite comfortable about supporting it.
Lord Mawson
My Lords, I am very sympathetic to the amendment of the noble Lord, Lord Rooker, for very practical reasons. I am building a street at the moment in Tower Hamlets, and part of that street is not only a new school but a new health centre, which has been under development for five years. The health centre proposals were begun in the previous Government’s time in office. It is true that the Bromley-by-Bow Centre, when competing for that practice, was not on a level playing field. It is very difficult to compete with a multinational company that could undercut the price per patient to £75 per head, when I, having run an integrated health centre for 20-odd years, knew that the real costs were probably around £119 per patient and that the £75 per patient was not sustainable. It was very interesting going through the whole of that process, of proper competition and then losing the competition, to three years later, when I was approached by that company which admitted that the business plan did not work and asked whether we could help rescue the situation, which we have now done, and the multinational business has now withdrawn. I know that there is a problem here that we need to get our heads round, and I know and believe that the Government are serious about wanting the social enterprise sector and the voluntary sector to play their full role. It is a practical problem that needs to be got hold of.
The other thing that I know from experience is that bureaucracies like to talk to bureaucracies. I know that large government departments often find it easier to talk to large businesses. Indeed, we have seen this happen over many years. I am in favour of the private sector. We work a lot with the private sector, and I do not think that it is a case of one of the other. However, I have noticed how easily civil servants translate across into large companies, with the bureaucracy carrying on under other names, and organisations that are leaner and more innovative sometimes find it very difficult to break in. Therefore, if the Government are really serious about allowing some of us who do this work but are smaller in scale to break into this market and grow in capacity, then something will need to happen here to help that.
I also know from experience that one way in which we have grown in capacity is by forming relationships with one or two businesses. They have got to know what we are about and we have got to know what they are about, and we have formed partnerships and grown opportunities together. As I mentioned earlier, a £35 million LIFT company has now built 10 health centres. When we formed that relationship, which is a bit like a marriage, we got to know about each other’s worlds. We are now in a social enterprise with that business carrying out landscape work on 26 school sites. Therefore, there are things that government can do.
In my experience, some businesses are becoming more intelligent about this, although some businesses are not. The Government should be using their muscle to encourage businesses to form these local partnerships. If they do not do that, the danger will be that the profits made in poorer communities will be sucked out of the area, rather than there being virtuous circles around the areas creating more jobs and opportunities in local contexts. Therefore, I am sympathetic to the amendment. I would encourage the Government to look again at some of the practical issues and how they work in practice on the ground.
Lord Beecham
My Lords, for centuries what is now termed the voluntary or charitable sector was the main provider of health services in this country. It is a common view across your Lordships’ House that the sector must be encouraged to play a growing part in the provision of services, partly because it has a track record of innovation, is less inhibited by cumbersome regulations, and perhaps, as I have said on a previous occasion, is a little less risk averse than public bodies tend to be and obviously less motivated by the profit motive than the private sector necessarily has to be.
Surely it is common ground that we want to see a thriving voluntary sector, and I credit the Minister with sharing that aspiration. The trouble is that the Bill does not help him to do that. At best, this clause is neutral in its attitude towards the voluntary sector and, at worst, it will conceivably endanger the realisation of that aspiration. The noble Lord, Lord Greaves, pointed to the curious phrase in paragraph (b), seeking some elucidation, which we may get. However, as it stands, that paragraph could easily be interpreted as referring to the charitable and voluntary sector and as placing that sector at a disadvantage because it would be brought within the scope of the provisions of the clause, which would prevent any positive discrimination—if I might put it in such terms—in favour of that sector. That may not be the intention but it would appear to be very likely to be deemed to be the outcome.
There are already significant inhibitions, as a number of your Lordships have pointed out. The noble Lord, Lord Rooker, referred to the central Surrey experience, where a £9 million performance bond was requested from a social enterprise which clearly was not able to provide it. Incidentally, I contrast that with the financial position of Circle, which had a £45 million pre-tax loss in the year prior to the award of a contract to it and apparently very little relevant experience in running a hospital facility. However, it was awarded a contract. It would be interesting to see what criteria would be applied in future cases of that kind, whether to social enterprises, enterprises purporting to be social enterprises, such as Circle, or other enterprises. Be that as it may, there are clearly considerable difficulties for the social enterprise sector. Social Enterprise UK in its briefing, which no doubt some of your Lordships will have had, points out that the clause could also prevent the continuation of policies such as the Social Enterprise Investment Fund, which helped to support social enterprises in their endeavours.
The noble Baroness, Lady Williams, bravely interposes herself between the raging Opposition and the beleaguered Minister—as he appears to deem himself—but for what purpose I really cannot quite understand. Nobody is doubting his bona fides; the question is whether the legislation reflects his intentions. The very best that can be said of the clause which the amendment of the noble Lord, Lord Rooker, seeks to improve is that it creates a neutral situation. However neutrality, like patriotism, is not enough in this context. If we want to support the sector then we have to recognise the disadvantages with which it starts and not go for a simple level playing field on the assumption that all parties on the field are equal. We have to prepare the ground to assist this particular sector. At the moment, I do not think that the Bill provides for that.
The amendment does not require the board to favour the sector. I might have gone along with it had it done so. It provides the option for the board to assist the sector in making its particular and distinctive contribution to the provision of health services and removes what would be a substantial obstacle to that happening. This clause reflects a positive attitude to a sector that needs that kind of support. I therefore hope that the noble Earl will accept the suggestion made by my noble friend Lady Thornton in the earlier debate and hold some kind of discussion with representative bodies such as ACEVO, which is clearly concerned. The chief executive of ACEVO was a member of the Future Forum and his views should be taken very seriously. There are other organisations, some of them already in the field providing services, which clearly have an interest in this. The hospice movement, which has been referred to, is a very good example. A meeting convened by the Minister would be very helpful in that respect.
Social enterprises are perhaps slightly different from traditional third sector organisations. They are essentially a new form of enterprise in this field and again they ought to be represented at such a discussion. At the very least, I cannot see what the Minister would have to lose by accepting the noble Lord’s amendment. It does not impose a positive requirement. It does not prevent other parties being involved in undertaking work or competing for the provision of services in this area, it merely provides for a third option. If that is consistent with the Minister’s approach I cannot see what the Government have to lose by accepting it. It certainly is no reflection on his intentions, as I am sure the noble Lord would confirm and as I have repeatedly said. I therefore hope that the Minister can respond positively—if not tonight by simply accepting the amendment, which would be the easiest and most preferred course for many of us, then at least by entering into discussion with a view to assessing the degree of difficulty that the sector fears would arise from this provision. We could then see on Report whether we might amend the clause something along the lines of—if not on the actual lines of—what the noble Lord, Lord Rooker, has proposed. That would meet the wishes of all Members of this House to see a thriving sector contributing in that mixed-economy provision to which we all subscribe.
Lord Mawson
My Lords, I would certainly be willing to help with this. It is one thing to talk to representative bodies: that is fine. However, the Government might find it helpful to talk to individuals who have dealt with the nitty-gritty, practical realities of the situation, and who may have practical insights that could help the Minister with some of these issues. I would be willing to suggest one or two people if that would be helpful.
Earl Howe
My Lords, I have had a lot of helpful comments in the debate and very much welcome the chance to reiterate the Government's support for the work of the voluntary and community sectors. The noble Lord, Lord Rooker, is absolutely right; these organisations have a very important role to play both in the provision of support to patients and their families, carers and communities, and increasingly in the provision of services. It is right that the NHS Commissioning Board and clinical commissioning groups should be able to provide funding to support them in this work. The noble Lord suggested that the effect of the Bill would be to snuff out the third sector. I assure him that that is not so.
I will quickly clarify the effect of the duties relating to market share. We want the NHS to operate around the needs of patients. That is why patients’ interests are at the heart of the Bill. Healthcare services should be commissioned on that basis and not on the basis of who is providing the care. This will not prevent a range of work that may go on to support the voluntary sector where it does not directly provide healthcare services. I believe that the Bill goes further than any previous legislation to remove barriers standing in the way of a fair playing field. I do not and will not shy away from our commitment to see a vibrant third-sector market in the NHS.
I will provide a little detail and flesh on the bones. The Bill already provides the board and clinical commissioning groups with the power to make payments through loans and grants to voluntary organisations that provide or arrange for the provision of similar services to those that the board will be responsible for commissioning. This power mirrors the power that the Secretary of State has under Section 64 of the Health Services and Public Health Act 1968, currently exercised by strategic health authorities and primary care trusts. The power would not apply only to service provision. The board and clinical commissioning groups may also want to fund work that will assist in the effective commissioning of services. For instance, the board may provide funding to voluntary organisations with particular expertise in the provision of support to people with rare specialist conditions to guide its approach to commissioning those services. Grants and loans of this sort will support innovation and vibrancy in the health sector and we want to encourage this.
I reassure the noble Lord that we expect that the NHS Commissioning Board and clinical commissioning groups will also continue to uphold the principles set out in the compact. This remains a key agreement between the state and the voluntary sector. Local commissioners should make every effort to engage their voluntary and community partners in discussion on priorities and the allocation of resources, working in a way that is transparent and accountable to local communities. I know that that is already happening at the level of pathfinder CCGs.
The noble Baroness, Lady Armstrong, chided the Government by saying that their rhetoric had not been followed through into action. I say to her that voluntary sector grant schemes are still in place. These are the innovation, excellence and service delivery fund, the strategic partner programme, opportunities for volunteering and the health and social care volunteering fund, under the collective umbrella of the Third Sector Investment Programme. The total value of this for the current year is £25 million. It will continue in 2012-13, which will ensure the continued support of its member organisations to build their capacity and capability to make high-quality and responsive contributions to support health and well-being in our communities. A £1 million financial assistance fund opened on 20 December last for organisations that make a significant contribution to health, public health and social care, but which are most at financial risk. In addition, the department contributed to the Office for Civil Society’s transition fund.
As I say, the department greatly values the voluntary sector’s contribution and our ongoing support for the grant funding programmes through this year recognises the increased role of the sector in helping us renew our efforts to build strong, resilient communities and improve health and well-being outcomes. What I cannot precisely do at the moment is say how much money will be available next year. Decisions about budgets for 2012-13 will be made in due course and we will work within the principles of the compact in making those decisions.
I hope that what I have said has served to reassure the noble Lord, Lord Rooker, that we are serious about this and indeed I hope he will accept from me that nothing in the Bill interferes with our purpose to support this important sector. Our policy is that services should be commissioned from the providers best able to meet the needs of patients and local communities. That is the key. Unfortunately, the wording of his amendment, if taken literally, would run counter to that principle, which is why I am afraid I cannot accept it, but I hope he will find some comfort in what I have said.
Baroness Williams of Crosby
Can the Minister say a word or two about the building up of capacity, which seemed a very important element in the amendment tabled by the noble Lord, Lord Rooker, and whether there will be any other method by which the capacity of the voluntary sector could be developed and increased?
Earl Howe
I have already outlined a number of funds that are held centrally to enable that to happen. That is happening at the moment. I am pleased to say that we have had very encouraging take-up of those funds. The Social Enterprise Investment Fund has been in place for some time. What I cannot do at the moment is say how much money will be available next year. A lot of these funds will continue in the next year and we will be making announcements in due course. However, we are clear that there is a role for this type of lever to ensure that social enterprises and voluntary sector organisations can be supported in the way that the noble Lord, Lord Warner, indicated was important—and I agree with him.
Lord Rooker
My Lords, if this was in the Bill, no one would have to take any notice of it at all. That is the reality. I am very grateful to those who have supported my amendment. There will be plenty of people in the sector watching the debate, metaphorically and reading Hansard, who will wonder what on earth we are doing. I realise it suits the Government to have this embarrassing debate on the twilight shift because that is very inconvenient for them. To be honest, I did not hear anything from the Minister that showed that he took on board the central points I made. Notwithstanding his answer to the noble Baroness, Lady Williams, I will test the opinion of the House on this.