Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, I should remind the Committee that if there is a Division in the Chamber, the Committee will adjourn for 10 minutes from the sound of the Division Bell.
Information Committee: Annual Report 2010-11
Lord Kirkwood of Kirkhope
That the Grand Committee takes note of the Annual Report for 2010-11 of the Information Committee (First Report, HL Paper 190).
Lord Kirkwood of Kirkhope
My Lords, it is my pleasure to move that the Grand Committee takes note of the Information Committee’s annual report for 2010-11. It is my pleasure and privilege to chair the committee. This is the first opportunity that we have had to share our deliberations more widely among our colleagues in the House. It is important that we should take every opportunity to do so when we can. I acknowledge the fact that the business managers have found time for this important debate. Time is precious and the Grand Committee has other business this afternoon.
Lord Kirkwood of Kirkhope
My Lords, before the Division was called I was remarking that the business managers have done us a favour in finding time for this important debate in Grand Committee to deal with the annual report of the Information Committee.
I am sure that I speak for all committee members in thanking both the clerks who have covered this report and our own clerk, who has succeeded Rob Whiteway, and his colleagues in the clerks’ department. We are very grateful for the support we get from the clerks’ department. That is true also of all the heads and members of the professional staff and the directorates of the work that is overseen by the committee. They are all absolutely dedicated, enthusiastic professionals. It is a privilege to serve with them and we acknowledge the contribution they have, in their individual ways, made to making what I think was a successful year’s work enshrined in the committee report.
The committee has a very important, if rather peculiar role. You could characterise what it does in the three themes that are adverted to in the early stages of the report. It is driving what benefit we can get from information technology services in the service of the House. That has many aspects and dimensions, not just in terms of servicing Members but the back-office administration functions too. It is trying to make sure that we get a much more effective message across to the wider public generally about what is going on here and how we do our business, as well as trying to inform those who are anxious to inform themselves about the work of the House. That is an important element in the work of the committee.
I will be spending the majority of my short introduction dealing with services for individual Members in the House. In that regard, I pay tribute to the noble Lord, Lord Brabazon, who represents the administration authorities. We have had very good support from not just the clerks’ department but the House and administration committees in difficult financial circumstances, for which we are very grateful.
For a committee member trying to cover all the important aspects of the House’s work, it is right—good practice dictates it—to take every opportunity to report back to make sure that Members of the House and others know what is going on in the work of the committee. We do that by publishing our minutes. We are as open and transparent as possible, and that is useful. It is also right to solicit views. There is a user group dimension to the work that we do, and to be successful we need to encourage people to give their views. We must use every opportunity we can to get feedback. As another dimension, using complaints constructively and instructively is also important. We are getting better at that, particularly with the Parliamentary Information and Communication Technology side to the committee’s work. I have a sense—there is only anecdotal evidence—that PICT is rolling out services, such as the Windows 7 upgrade to operating systems on desktop and laptop machines across the whole Parliamentary Estate, with commendable efficiency and minimal disruption.
All these things involve change, and people get nervous of change. We need to keep in contact with the people we are seeking to serve, within the House, the Administration and the public. The 2010-11 report covers the first half of the Parliament—effectively, the first two years which are just coming to an end. The current period is not quite covered by that; I had hoped to mention one or two things to bring us up to date with things that have happened since July 2011. The report is a useful piece of work, and I hope we will have a useful discussion about it. For the members of the committee who are here, we need to learn what other people think about the contents of the report.
It is obviously true to anyone who has studied the work of the committee that we were bequeathed a very valuable legacy by our predecessor committee. The noble Lord, Lord Renton of Mount Harry and his colleagues produced, among other things, the seminal report, Are the Lords Listening? Creating Connections Between People and Parliament.
This report is still a work in progress before the existing committee. Indeed, my own name as chairman is on a list of ballotable debates dealing with Chapters 7 and 8. We are trying to get some feedback from the House as a whole on important questions such as the use of parliamentary language, which was identified as a barrier to people’s understanding, and to ceremonial aspects of some of the House’s work, which in modern times can produce a barrier to people’s understanding of the important work we do. There is a lot still being promoted, based on what was done before the committee took its place and started the work for this report.
The context is important too, because it has changed. The membership of the House has increased to such an extent that the pressure on all of its services, ICT and otherwise, cannot be ignored. That is something we are alive to. The political tensions and the quite hard-fought debates we have had attract attention, and we need to address and deal with that, in terms of dealing with people’s inquiries. We are also affected by deficit reduction, because everything we do in Parliament for the foreseeable future will be affected. All these things have to be considered in the mix.
We have a broad list of responsibilities. As well as parliamentary information and communication technology, we cover the Library, the important work of the Hansard reporters, public information, and bicameral services. Most bicameral services are hosted by the House of Commons, but we have our own parliamentary archive, which is a bicameral service that is brigaded in the House of Lords, and it is very valuable. Anyone who knows anything about what goes on here cannot help but be impressed by the enthusiasm of the staff and the dedication they bring to their work.
I should like to go through the five or six services to update the Grand Committee on where we are now as opposed to where the annual report ends. However, I shall spend a little longer on parliamentary information and communication technology because it is the biggest game changer that we are confronting as an institution and as a society. I do not want the House of Lords to get behind the curve to the extent that we do not relate to, and lose traction with, a public who are now involved in social networking and all that that means.
It is a struggle to stay on top of that degree of change but—I probably say this because I am chairman of the Information Committee and we are supposed to be doing this—we are ahead of this important area of public policy in many ways, particularly in the use and piloting of tablet technology. Since the report was completed in July 2011, two significant things have happened. First, the Information Committee agreed to undertake a tablet technology pilot. I stress the word “tablet” because this is not an iPad trial; it is a tablet trial. We must be careful that we do not end up as commercial agents for Apple Incorporated, however good the technology may be. That is easy to do, in the way that vacuum cleaners suddenly became Hoovers, and we need to be careful when talking about generic technology because it changes so fast. Machines are being trialled effectively at the moment by members of the committee and we will consider the first phase of the results at our important committee meeting tomorrow. The likelihood is that the evaluation of the work of tablet technology will need to continue before we can say with certainty that we want to deploy the servicing and the back-up of tablets for Members.
Lord Foulkes of Cumnock
My noble friend invited comments, and as I have a Select Committee hearing to go to, I wonder whether perhaps he can help me with a question at the moment. I appreciate how PICT has helped individual members—it has been really helpful to me—but I get worried sometimes about the attitude within the Information Committee. It feels that issuing computers and laptops to Members is somehow a gift and that it is being very kind to us. In fact, those machines are there to help us with our work. We do not get any secretarial allowance now and those of us who come from outwith London have been seriously disadvantaged as a result.
When the committee considers this issue tomorrow, can more flexibility be written into the allocation of computers and laptops? For example, on page 8 of the report it says that we are entitled to a range of things, including one Blackberry handheld device. When I ask whether I can substitute something else for that Blackberry handheld device, such as another laptop or a tablet, I am told that I cannot do so. This kind of inflexibility creates problems for noble Lords who are only trying to carry out their job as Members of the House. Could the committee consider some greater flexibility in the allocation of equipment in the future?
Lord Kirkwood of Kirkhope
Indeed. I am grateful for that intervention. We have to be open and honest and tell the unvarnished truth about the degree of change that will be coming if the ICT strategy that the committee has agreed in principle is rolled out by May 2015. I am keen on using that as a planning date. Previously we could not say with certainty when the Parliament will end, so being able to ask ourselves where we want to be by May 2015 is a useful device. It enables us to devise strategies and get plans in place.
In answer to my noble friend’s question, the ambition is to become device-neutral and provide internet-based services in the sky anywhere, any time and any place. The service will then change from a hardware-based system—as it tends to be at the moment, with broadband lines being provided and serviced—to inviting Members to use whatever device platform and in whatever combination they are comfortable with. We will guarantee bespoke services, including coaching in terms of individual Members’ ways of working. This plays into the important point that my noble friend makes. We all do things differently and struggle to look after ourselves without a heavy staff back-up. The best way we can do this within the financial envelope we face is to develop these services. I promise my noble friend that I have seen some of the early prototype services and they are stunningly useful on a tablet device.
We have to be absolutely upfront about this because people need time to plan. If this strategy works, we will not be in the business of handing hardware to people after 2015. We will not, indeed, be putting broadband connections into people’s homes. That is a huge change and people will be frightened by it, but the Committee’s important duty over the next two years is to try to win the argument about why we are making this change. It is not just about money, but it is about money; because you can do this an awful lot more cheaply. If my noble friend just thinks about the rate at which some of these devices change, then if, after 2015, you were locked into supplying people with up-to-date hardware, you would have to change the equipment you offered with such regularity to keep them ahead of the industry standard that it would cost an unimaginable sum of money.
I think people will get desktops in the main precincts of the Palace of Westminster because they are easily maintained by a central staff, but my ambition is to get everyone else mobile; and what a tablet device or platform gives you is the ability to work anywhere as long as you have a wi-fi connection. That is the first thing that the committee knows about and the strategy that we have agreed. We have a sterling job to do on that because people will understandably be slightly apprehensive—that is probably the best word—until they understand what is being offered to them.
Secondly, this is where the House Committee’s assistance comes in and again I am grateful to the noble Lord, Lord Brabazon. We now have the authority to wi-fi enable the whole estate over the next 12 months. That is a massive assistance. It puts us as an institution ahead of any other parliamentary service for tablet provision that I know of. The Italians are spending a lot of money and doing a lot of work on this and the Canadians have always had a reputation for it. The Brazilians are spending a lot of money as well. There is an international best practice sharing operation going on and by next year we could be seen as leading the service provision for individual parliamentary members because of the applications that we will be able to put on these devices. They will be crafted by our own people to assist Members of the House of Lords and I promise that when colleagues see the results of this work when it is rolled out—I hope within the next 12 months—people will see the reason and the justification for what we are doing in ICT.
In parenthesis, I want to be clear that we give an assurance to people who want their services delivered on a paper-based basis that they will always be catered for. That does not mean to say that the back-office machinery will not be done by clever enabled technology. People who are uncomfortable working in anything other than in a paper-based situation will always be catered for. That is an assurance the Committee would want to give so that that level of apprehension can be contained.
I have been slightly distracted. I wanted to talk about some of the other services. The Information Office, the Library, the Parliamentary Archive and the public information services have all done extremely well. The results of that are in the report. If I had had more time I would have given an update about the services that have been developed since July 2011 in each of those categories.
The Information Committee is at the forefront of ensuring that by 2015 we will be in the best possible place for incoming Members. However they come to this institution after May 2015, we will be confident that we will be able to provide them with an ICT back service which is fit for purpose.
I started with three themes: driving the ICT agenda forward with as much determination and as much robustness as we can, coupled with getting our message across to the general public about what is happening here so that they understand our work better, and getting the bespoke services fully operational and robust and fit for purpose. These are the things for the second half of the Parliament that the Committee will be committed to doing on behalf of the whole House. On that basis, I hope that colleagues will accept this report as a work in progress, and I beg to move.
Lord Selsdon
My Lords, I begin, having been here rather too long, with a vote of thanks to our chairman, who has a remarkably light touch sometimes in that all the meetings we have attended have finished exactly on time, usually when I have plucked up the courage to say something.
I will speak not on the high-tech areas, but on slightly simpler ground. We have 827 Members of this House—there have been 118 new ones since the last election. Those on leave of absence make it 788 people. These are, in a way, our customer base. However, unlike many great institutions, we do not know each other. I am prepared to guess that on average nobody knows more than 100 Peers. Therefore there is almost a need for introductions or facial recognition. That has worried me quite considerably. I now know my noble friends the Liberal Democrats, but when you sit behind your own colleagues and see only the back of their head, you tend to find it easier to recognise the Opposition, so I have suggested some things that could be done. I asked Black Rod whether it would be possible for the names on the badges to be a bit bigger, because people come up, and look down, and say, “Who is that?”. This is just a simple basis of information.
We have a duty to communicate with Members of the House and to provide them with facilities in difficult times. As we know, wi-fi is going to be a very long way away and quite an expensive exercise. On the other hand, we are still a paper-based House. The Printed Paper Office points out that it has 2,000 different reports in its basement, that it receives and issues more paper than ever before, and that the number of lines per sheet of paper has dropped to about eight from 15. Many people still require paper. It will be a long time until we have caught up with the technology to get rid of the paper.
However, we are in the information business. We often forget that we are lucky enough to have probably one of the best libraries of its sort in the world. When I came here I did not realise that a librarian was more qualified than almost anyone else in the information business and suggested to the Library that I would quite like to be a librarian. They looked up to me in a down-looking way until I realised that you can find anything you want in that Library.
Over the past 10 years, the Library has issued 155 reports of great quality, but they are not as widely distributed as I would have hoped. One reason is that some of the data in those reports are sensitive because the Library does not necessarily own the intellectual property. But those reports would be a good promotion for the House; they could be more widely distributed and more easily issued to universities, academics, colleges and the general public. I have a list of those reports, which include everything from the adoption of children back in 2002 right the way through to Lords reform and human tissue legislation. It is quite a remarkable collection. The number of reports doubles in direct proportion to the size of the House and the demands of Peers. Many of the newer Peers do not know what they can get out of the Library.
Another thing we do for the production of information is to ask questions. Your Lordships will know well that certain Peers like to read about themselves in Questions more than anybody else. In this Parliament, we have had a total of 16,389 Questions for Written Answer. That is quite a lot. I went to the Library to ask staff about it—I beat them to it, because fortunately the Public Bill Office had explained that in the green paper each Question is numbered. So the number against the last Question tells you exactly how many there have been without your having to do any research.
On top of that, we have had 1,100 Starred Questions. That is quite easy to work out. You take the number of days that the House sat and multiply it by four, because there are four Questions a day, so that research did not take very long. All that information is in the public domain and much of it could be of great interest to the general public, probably more interesting that some of the extracts from your Lordships’ speeches, monologues or dialogues.
In that information area, we have to accept that people who come here are people with whom we communicate. There have been comments from time to time in the press that perhaps we are eating or drinking too much, too cheaply, or perhaps too freely. So I thought that it would be a good idea if I asked the Banqueting department how many people it had had last year. It had received more than 55,000 guests from institutions that nobody could criticise. I retyped the whole lot; I took out the names of Peers in case anybody thought a Peer might be on a freebie, or something else, but I left in two great celebrations when there were large birthday parties for individual Peers. Of those 750 events, none was any burden on the public purse—they actually provide a surplus—and they generated revenue through the shops. That is an important part of what one might call outreach.
I have not been out to speak to people. I was what was once called a Snopake speaker: when anybody let anybody down, I was the last one invited to speak. I would go to the dinner and scratch the menu to see whose name was typed under mine. But bringing people to this place is very worth while. I have been on a few tours and am now fully briefed. We should not worry about the older age group. Yes, it is a good idea to take soldiers round when they have been on things and to let them be recognised. So I went for the youngest ones; I said that I would like to bring round a young school group. I asked what the youngest was that they could cope with and they said eight or nine—so we brought round a team of five year-olds from my grandson’s class. They went round and had a whale of a time. Each one of them, in their own writing, wrote a letter of thanks, and said that the thing that they had enjoyed most was the nice lady who showed them round, the gold and the big hall. Those sorts of things make you feel good. When we have outreach in schools, in many cases it might not be a bad idea to put the House of Lords on an agenda for the history class and have every school in London coming in.
I have another suggestion to make on the lack of knowledge that we ourselves have about the House—certainly the lack of knowledge on procedures, which we know full well, and how we discipline our colleagues to stop them shouting and jumping up and down. When I first came here I was very nervous and everybody got my name wrong. The Chief Whip said, “You ought to make a maiden speech”, which I did, although I chickened out twice. He then said, “You can intervene now; I think you can intervene at Question Time”. So I said, “Well, what do I do, sir?”. He said, “Well, you stand up very quickly, because you are athletic, to ask a supplementary question and you will therefore be the quickest up, as you are one of the youngest. But then other people will get up and you will know they are more important than you—because the whole of the House is more important than you—and therefore you sit down. But you sit down very slowly, as though you were arthritic. They will turn to you—realising that you stood up first. Do that, and they will sit down”. Two Peers stood up and then sat down. I forgot what question I was going to ask and felt rather nervous. I did not know afterwards that the Chief Whip and the Leader of the Opposition had arranged this so that I would feel comfortable, and that the two Peers who stood up were only doing that to make me feel at home. Now, when one looks at Question Time, it is a barnstorming. I make a list—I call it the black list—of those who jump up, intervene and shout. It is not necessary—and that is part of the character of the House that has gone.
I will not go on about iPads because although I started with a computer, I could not make it work so I went to the Alfred Marks girls’ school, as Miss Selsdon, up in Oxford Street and Tracy, Sharon and Gail helped me. One needs that sort of friendliness; one feels embarrassed as a man if one cannot cope.
We have the Queen’s Jubilee Thames event coming up. I promise not to interfere in my capacity as Secretary and Treasurer of the House of Lords Yacht Club, although I believe that I could have the right to get three barges alongside. When the noble Marquess, Lord Salisbury, who is in charge of this, was briefing us the other day, we suddenly realised that the House of Lords, or Parliament, will be the focus. When the parade goes by, all the television cameras will be on the other side of the river. The suggestion was that this might be viewed by 3 billion people over a period of time—I am not sure how long the parade lasts, but perhaps for two hours. Some of the boats that are lower in the water are going to be quite difficult to see. However, on the main barge, I hope that we have got the Armada bell, which I have arranged to be put there with the ring. The argument for the Armada bell is whether it is middle C, C flat or C sharp. The Whitechapel Bell Foundry is dealing with it.
If the Information Committee knew that this was going out world wide, we ought to write a script on what happened in the House of Lords—the history of it, from Alfred the Great and the others. This could be passed, probably from the BBC, to the lead broadcasters in China, India and right the way around the world.
Information should be fun and interesting. I have certainly enjoyed being on the Information Committee. I have enjoyed the tolerance of the great Martin Casey, who knows more than anybody. We cannot let him go; now I will try hard to use my machine—I will not call it by its name. I am very grateful for having been on this Committee and I would like to thank the chairman.
Lord Maxton
My Lords, first, if anybody thinks that I am being high-tech using my iPad for my speech, that is partially true. However, I also have a confession to make. When I tried to print it out on paper, the paper stuck in the printer. I was leaving it a little bit late to get here and so, inevitably, I had to do it this way. In fact, I am very largely going to ignore it because of what has already been said.
I thank “my noble friend”—as my noble friend Lord Foulkes called him quite wrongly—Lord Kirkwood. I would still call him “my noble friend” at a personal level even if parliamentary convention does not really follow that route. He is also, of course, a fellow member of the gym.
However, I want to follow the speeches that both he and the noble Lord, Lord Selsdon, have made from almost—not from the noble Lord, Lord Kirkwood, but certainly from the noble Lord, Lord Selsdon—the opposite point of view. He quite rightly has sung the praises of the Library. It is a magnificent place. I do not know many books there are in the Library but they could all be put on about three Kindles, to be read whenever anyone wanted to draw them up.
When I want information, as I showed in the House the other day, I go on Google and request that information. I do not go to the Library; I do not look at a book; I go on Google and find the information that I want. I used it for a very short history lesson. During a debate about the Scotland Bill and the United Kingdom there was an argument as to whether the United Kingdom had been formed with the union of the Crowns or the union of Parliaments. I looked it up and said that it was actually formed in 1800 when Ireland came into it. That was a matter of finding information quickly and easily on Google rather than having to go to the Library and look for a book to find that information.
That is the future. At the moment it is iPads but, before very long, there may well be a chip in the back of your hand through which you can get that same information. That is the way we are going and that is why the noble Lord, Lord Kirkwood, is absolutely right to say that we have to keep up to date. The same media that will attack us if we spend money on computers or whatever will equally attack us if we appear to be behind the ball game, out of date and no longer keeping up with what the younger people—and not only younger people but even old people like me—are doing in terms of technology.
I say to the noble Lord, Lord Kirkwood, that 12 months until wi-fi is simply not good enough. O2 has done a deal with Westminster Council at the present time under which, by putting its routers on what I believe it calls street furniture—lamp posts, fences and so on—it will provide wi-fi access to anybody who has a computer, laptop or mobile phone, whatever it might be, within Westminster Council. It is starting now. Some of it will be available in June and the whole of the council will have access by the beginning of July in time for the Olympic Games. If it can do that, why are we not approaching a company and asking whether we can do the same thing? Why are we not having the same access to wi-fi?
Presumably, as we are in the Westminster Council area, we will be getting access to that wi-fi. It would be slightly peculiar if, for some reason, we were not able to get it. Just like smokers—but not me; I am not a smoker and have not been for 30-odd years—we will have to go out on to the Terrace, carrying our laptop or our tablet, in order to get the access that we require. That would be nonsense. We ought to have wi-fi access throughout the whole system and I will urge at a later date on the committee that we should look at this issue much more quickly. We should have wi-fi access across the whole of the parliamentary estate—preferably within the next three months and before the introduction of the O2 system—and at speeds that are faster than the O2 system. Otherwise there is a danger that people like me will access the O2 system and say, “Oh, it is better than the parliamentary one anyway”. I do not have to sign in for it as there is automatic signing in. Every time I turn my computer on to access it, it will be instantly available. If our system is not as good, that will create security problems because people will be using computers, tablets or whatever which are not in any way related to the security systems within the parliamentary estate. That could have dangers.
I will finish by making a second point about the tablet experiment. Quite rightly, there has been a survey of tablets. It is all very well my noble friend Lord Kirkwood saying that it is the iPad but, as far as I am aware, they did not try out any other tablet. The iPad 3 is now out—it was announced last week and it goes on sale tomorrow—and the iPad 4 may very well come before the end of this year. We have to take a decision: do we or do we not give people the iPad? There is evidence that money will be saved by using the iPad through a reduction in the amount of paper used. People can use their iPads rather than printing out information and using up great piles of paper or getting it stuck in the printer, whatever it may be. The iPad is there; it is coming; we need it. Fellow Members are constantly asking me when a decision will be taken: they are saying, “Do we buy our own or is it going to be provided?”. It may be that the Committee and the House authorities want people to buy their own and they can then say, “We will provide the services”.
It would not be entirely fair if they did that. We may not be employees but this is a place of work and we are here to do a job. I cannot think of any other job where the tools required to do it have to be provided by yourself—where you have to go out and purchase your own hammers, screwdrivers, computers, whatever it may be. I cannot imagine journalists, who probably will attack us if we provide or offer iPads to everyone having to buy their own computers, tablets or laptops. That does not happen.
We ought to take a decision to at least offer a tablet, preferably the iPad—at the moment there is not anything else on the market—to everyone who wishes it, not as a straight extra but as a replacement either for the laptop that people have, if it is due for replacement, or instead of the mobile device that they have. I can use this. I have used this on the last couple of nights and my wife has used it as a phone using Skype. Using Skype and providing Skype services may be another way of saving money.
I hope we will take that decision. I welcome the report and the further meetings of the Committee, where I will again raise these issues.
The Earl of Erroll
My Lords, I welcome the opportunity to debate the report and to make a few points on it. I thank the noble Lord, Lord Kirkwood, for an excellent introduction, despite the rather rude interruption which tried to take us completely off the point that we were on. In future, if some Peers are going to make speeches in the middle of a debate, perhaps they will have the courtesy to stay until the end and not interrupt people at the start. This is a new tradition which has arisen with people who have come here and seem to think they have the right to do it and not to debate matters in a proper way. This reiterates the point of the noble Lord, Lord Selsdon, that we are having trouble getting people to understand the conventions of a self-regulating House, where you are not told what to do by a Speaker and you do not have a headmaster any more.
Leaving that point aside for the moment—I shall take it up elsewhere—I found the Information Committee report interesting and hugely encouraging. Like everyone else, I shall start by talking about the tablet trials, which is a wonderful move in the right direction. There are lots of questions about it and we received a bit of flak in the press the other day, which was very unfair. I have found that it has enabled me to work more efficiently and has allowed me to find papers when I have not got them. I remember going to a meeting where we were discussing the Protection of Freedoms Bill and some aspects of RIPA and I had thought we were going to be discussing something slightly different. I turned up with my tablet and everyone else had about a foot of paper in front of them. When I realised what we were discussing, it did not take me long to get the information up on the iPad because I know my way around the parliamentary site—a point I shall take up later—and I was able to find things quicker than the other people were able to by desperately fumbling through their index tabs. In particular, when we went on to a point they did not expect, I was able to search the PDF for a different Bill, to which it referred back, find the information and produce some intelligent comments. With the annotation facilities that we have for the PDFs in GoodReader, I was able to find information more quickly because I had indexed it already when we were debating the Bill. That is hugely valuable and useful and it is there, sitting with me, all the time. So, called into a meeting, I can react immediately. In the case that I mentioned, I think that it rather astonished them. They thought that I would know nothing because, apparently, I had no supporting material, but actually I had an entire library at my fingertips. That is the point, and it is one that has been brought up by other speakers.
The other advantage is the flexibility afforded when speaking, which the noble Lord, Lord Maxton, brought up. He would have printed his speech out and probably have felt constrained to stick to what he had written. He would have discovered that it was no longer as relevant as it was, but instead he was able to adapt it in a sensible and flexible way and produce a very interesting speech—one that, I hate to suggest, was probably more useful than the original speech because that one had been pre-empted. That is a huge advantage. I certainly found myself always modifying my speeches because I was able to use my Writer application.
We have been criticised in the press for handing out laptops, but you have to have a core group of enthusiasts who will test anything that is new. There is an old adage that no plan survives its first encounter with the enemy. Whatever you do to start with is not how you will end up. We could have launched on day one with the idea either that we would loan out tablets for Peers to use or that we would get people to bring their tablets in. Some businesses are doing that, but a lot of large organisations are fighting it quite hard because of security issues; they are finding it much harder than we are to adapt, but they are being forced into it. We have moved proactively, although the point is that if we had gone in that way, the critics would have killed it on day one. You have to run a trial to find out what the disadvantages are. We can see already that access to the website is changing and modifying as a result of some of the reactions to the tablet trial in the Information Committee.
I think that this still has a long way to go. An example is that when I want to look at a Bill I am concerned with, I want all the stuff that is relevant to whatever stage we have reached to be together in one place. I am prepared to pick the Bill up off the desk, but I am only offered the latest version and all the documents. I then have to go in and stab around. What I want are the latest amendments. I also want the note from the Whips’ Office so that I know what order people will be speaking in, although I am quite happy to get that off the other thing because I normally have that sitting there as well. However, it means having to jump backwards and forwards from one bit to the other. It is as if the most important thing is the last stage of the Bill, but it is not. The most important thing is the amendments we are about to discuss. Also, it is a real nuisance having last-minute additions to the Marshalled List, but I do not know how we are going to handle that. It means that you have to have two lists of amendments. However, we may see an improvement in our working practices as a result of all this because in some cases it may make us think more logically.
To make maximum use of this technology, we need training in how to search for and find things. For instance, occasionally I want to find EU papers, which is a particularly thorny problem on whatever device you are using. This is where we need the expertise of our librarians. One of the great things about modern technology is the way librarians have changed from people who just give you books and tell you where to find something into people who are able to gear up their expertise in knowing where to find information, then summarise it and produce a distillation. Library notes and research papers into aspects of things we are looking at are found to be extremely useful by Peers. You can see that in the doubling of the take-up of those notes. It changes someone who used to sit behind a desk into someone who is summarising information usefully so that it then becomes knowledge. It is then up to us to have the wisdom to turn it into something that we will use properly. Things are useless when they are just out there in the form of information.
I have one other brief comment to make about the trial. We are facing what every large organisation has to face, which is the problem of how we are going to handle security in a deperimeretised environment, as it is called. How are we going to have collaboration orientated architectures, as the Jericho Forum calls them? I know that these are technical things, but I thought I would throw them in for fun. These are the things we are facing, and large companies are stumbling over them as well. That is why at the moment we have a separation between the intranet and the internet, which I find so awkward because there is stuff I cannot get on my tablet. It is sitting on the intranet and it is too cumbersome to try to log in on that if you do not have a good connection. So I end up taking what I can get on the internet. There is some stuff which is missing. It is not secret or anything like that, and there are ways around it. I think we need to look at this, and it is something that may usefully come out of the tablet trial. I hope that the internet will survive and the intranet will be something that is accessed, if it is needed, in a very different way. I think there will be secure areas.
I want to say two things very quickly on the report. I was a little concerned by the talk of bespoke systems for core activities. I can see certain aspects of how we handle amendments and things as Bills progress through another place and then here, going backwards and forwards, and that there is a specialised system especially written to handle that. However, for a lot of our systems, we should be careful about going too bespoke, because the world is changing very quickly in a very unpredictable way. Who would have envisaged, even four years ago, that we would be doing a tablet trial here and that I would be permitted to use it in the Chamber or for my notes here in Committee? Who would have envisaged that we would be beginning to work in these flexible ways, or that we would be talking about Members bringing their own stuff in that would hook up inside the parliamentary perimeter? The changes are so fast that we do not know where we will be, and we have got to be very careful of locking ourselves into expensive, upfront capital expenditure when the world may move in a different direction.
To take up the point made by the noble Lord, Lord Maxton, again, is it an iPad or not? We are quite right to say tablet. It just happened that the iPad had the easiest interface, earliest on, off the starting block in this area. Actually, there are very serious rivals now and some that are outselling the iPad. There are some other more generic operating systems that could give us better access to some of the other facilities one would like to have on the internet. The iPad for various commercial reasons will not run Flash, but an Android-based system will. There are all sorts of bits and pieces like that, so we should very firmly say tablet, but of course it does not matter. If we go to a system which is device agnostic—as the chairman of our committee said—it removes that problem. People can have whatever they fancy and like and want to use. That is definitely the way to go, and it also offloads a huge amount of capital expenditure.
There are two other things I wanted to mention very quickly, because we have spent so long on computers. What we are doing on the outreach area and the Peers in Schools programme is very laudable. I think that move is hugely useful to public perception of what we get up to, what Parliament gets up to and what the two arms of Government—the legislature and the executive—do, with all the issues behind it that people do not understand. I am very encouraged to see that that is expanding. I have spoken in a couple of places, but not as part of the service. I think quite a few of us do, but it is right that we should formalise it and make it easier, and that is a very good move in the right direction.
The other thing that I am very grateful for is the Press Office. I have not had to use it, but I find it hugely reassuring that when there is something that hits the press that you are worried about, and you think, “Oh my goodness, what am I going to say?”, you have the Press Office there to act as back up. If it is a bit oversensitive, instead of putting your foot in it you can hand it over to the Press Office, which can put its foot in it instead. I am sorry, I mean that it can do exactly the right thing instead. These are very important aspects, which we should not lose sight of in our excitement about the new technology.
It is a very interesting and useful report, and I look forward to working with the committee as long as I am allowed to.
Lord Haskel
My Lords, I, too, thank our chairman for organising this rather pleasantly informal debate. We have members of the staff here, we have a clerk, and we even have a member of the Government to see that we behave ourselves.
Until they actually serve on the committee, people do not realise the huge amount of work and the huge range of activity which is done by the information staff. As we come into contact with them, we know about PICT and the Library because they are there, but we are much less aware of the information services to the general public—the outreach, the work done with House of Commons education, the website, the intranet, broadcasting and generally telling the world who we are and what we do. Who knows that the House of Lords staff also take care of the parliamentary archives? Do not, of course, forget Hansard. Therefore, I start, together with the noble Lord, Lord Kirkwood, by thanking the staff and congratulating them on all their hard work, dedication and thoughtfulness. Like the noble Lord, Lord Selsdon, I think the committee should find some way of better informing parliamentarians of all this hard work and dedication. An awful lot of us just take it for granted.
Where should I start on this huge range of activities? I start by responding briefly to a question about ICT. This is a very difficult time to provide an ICT service because the technology and hardware are changing so quickly. No sooner had we learnt to operate our PCs than mobile systems started to take over. Then the tablet came along and now we may well be moving into an age of connected TV—who knows? It takes time for people to understand the systems and to move easily between static and mobile formats. That is why I am in favour of Peers providing their own equipment. I do not agree with my noble friend. It is partly because people would be more economical with their own stuff and partly because Peers are at different stages of development.
Some of us still use books for knowledge, as the noble Earl, Lord Erroll, said. For instance, I find it difficult to work on an iPad. I like to write little notes to myself in the margins of a document that I am working on because my memory is so awful. In a debate such as this, I could write a little note in the margin to refer to something that another Peer has said. I find this very awkward when using an iPad. It might be a little more difficult for the support staff but it would make the service more personal and individual if we supplied our own equipment. Providing our own equipment would also help to achieve the objective of increasing Members’ effectiveness in their own work. This does not mean that we should not be at the forefront of technology, as the noble Lord, Lord Maxton, said, but we have to do it at our own pace. That is why I was not in favour of trying iPads. They should certainly be provided for staff, but I saw enough of them being used by Peers in the Library and elsewhere in Parliament to conduct a worthwhile trial. I also felt that it was wrong to limit ourselves to Apple software—a point made by the noble Lord, Lord Kirkwood. Now I read that we have Windows 7, with which we are all familiar, for the tablet in a very quick and easy form, with an app that does everything for you. I am sure that in time this will become very popular.
Another reason why it is right to concentrate on ICT is that it is a means of two-way communication—the feedback about which the noble Lord, Lord Kirkwood, spoke. It is a means of strengthening relationships, which is what the Information Committee is all about. This should be done not only through social media—I am not suggesting that we reward people who become friends—but through individual websites as well as the parliamentary website. Last week the Labour Lords website went live; my noble friend starred on it. It provides exactly the kind of two-way relationship that the Information Committee should support.
Lords of the Blog is another example. It has now been going for three years and the page views are rapidly increasing because Peers raise issues there that they cannot raise on the Floor of the House due to overcrowding. As long as the House is overcrowded, Peers will find other ways to monitor and scrutinise the Government by using ICT. This also applies to tweeting.
Reaching out to the public in person is perhaps even more important. The noble Earl, Lord Erroll, referred to this. As our report says, some 180 Members go to schools, colleges and other institutions to explain who we are and what we do. I would like to put on record my thanks to Gina Page and her colleagues in the Lords Speaker’s Office, and those in the Information Office, who put all of this together and actually organise more than 500 visits.
I have participated in this scheme since it started five years ago. What is appreciated is not so much telling people how Parliament works, but for people to have the opportunity to question a real, live, breathing, genuine Member of the House of Lords. I keep the explanations short when I go, and devote most of the time to a question and answer session. Indeed, this leads to some fascinating and informative discussions.
Of course, you are always asked how you became a Peer. You are always asked what you do. You are asked how much you get paid and what you did before you entered the House, and some of the questions are based on information gleaned from websites such as theyworkforyou.com. But many of the questions are unexpected. For instance, in November I was asked, if Jesus was alive today, would he become a Member of the House of Lords, and if so, on which Benches would he sit? This led to about 15 minutes of discussion and we came to the conclusion that yes, he would become a Member of the House of Lords, but no, he would not sit on the Bishops’ Benches; he would have become a Peer through the public applications system, and would sit on the Cross Benches as a champion of human rights.
Incidentally, to my knowledge we have never had a debriefing session for the staff and Peers doing this outreach, and I think this is something that the committee might arrange. For instance, before I visit a school or institution I always read the Information Office daily press report, because then I know what the audience has been reading. I wonder how many Peers know that this is available.
Of course, another part of the outreach with a human touch is the welcome given to visitors. The parliamentary guides are warm, they are smiling, they are informative and helpful, and they certainly form an important part of the human outreach. This is in addition to all the visitors that the noble Lord, Lord Selsdon, told us about.
One part of the organisation that seems to bring a lot of these things together is the Library. Not only have the staff dealt with a huge increase in reference and research inquiries—not everybody uses their iPad—but they also provide briefing packs for debates. They provide online services and, helpfully, training on how to use them. There are computers for occasional use and services are available both here and at Millbank. As I said earlier, Peers look to the Library for help because it is local, in the same way that we look to PICT for help at short notice, which is another excellent service that we should applaud.
The report speaks about developing Members’ biographical pages. May I make one request? These biographies tend to say a lot about what Members take out of the pot—for instance, what the posts are that they hold outside Parliament—but very little about what they put back in. In all my years I have never met a Peer who does not do some kind of voluntary work in charity, sport, the arts, education, medicine—the list is endless. But rarely are people told about it. Both should have equal prominence in these biographies that we are working on.
There are lots of areas I have not covered, such as the archives, which is the place that many visitors tell me they remember the best. I could go on, but I must close. Has all this outreach been effective and worthwhile? I am not aware of any polling to find out, but my impression is that it is. People I meet are certainly much more aware of who we are, what we do and why we do it. If there is a reform Bill in the Queen’s Speech, this will be debated by an informed public, which will be far better informed today than it was five years ago, thanks to the work of the Information Committee. I also think that this work has made an important contribution to rebuilding our reputation and status with the public after the debacle of the expenses scandal—something that was desperately needed.
Internally, we work better, more efficiently and more effectively through the use of ICT, and this will only get better. Incidentally, streaming and broadcasting has made us more conscious of our behaviour and, speaking for myself, encouraged us to prepare better for meetings and debates. Once again, my thanks and congratulations go to all the information staff, to our Chair, our Clerks and my colleagues on the Committee. Our work is showing results.
Lord Avebury
My Lords, could I take up one minute of the Committee’s time to pursue a point just raised by the noble Lord, Lord Haskel and the noble Earl, Lord Erroll? It is about the use of equipment off the premises of the Palace of Westminster that is chosen by the Members themselves. That also featured in my noble friend’s introduction. I was quite excited by this, because the present system of allocating fixed hardware to people who then use it off the premises is unduly restrictive and can have serious disadvantages. I will mention one instance. I have a network at home and I was told that the Parliamentary ICT system could not supply me with broadband because of the danger that might arise from misuse by some of the other people on the network. It would happily look after one computer connected to broadband, which it would pay for, but if I were to connect one or several more computers to my network, that meant that it would not pay at all.
This would resolve the dilemma over iPads, which has been mentioned several times. I agree with the noble Lord that nowadays there are competitors to the iPad that, if not superior, are at least equal to it, and which Members might use if they had the freedom to choose. One can see the point of having specified equipment used in the offices in the House because the ICT people have to look after it. The desktop and printer on desks here in the Palace of Westminster should be specified, but as soon as you get outside and need a mobile, tablet or connection to the internet, Members should have a budget and be able to do exactly what they like with it instead of having to stick to equipment from a specified list provided by the IT department. I am glad to hear that the committee is heading in that direction.
Lord Kirkwood of Kirkhope
My Lords, I am grateful to all the Members who have taken part. Apart from my noble friend Lord Avebury, we have kept this within the family. There is no harm in that, and I draw a conclusion from the fact that we have not had the Grand Committee packed with people complaining about various services that have gone wrong. That is a positive. The opportunity is there and it is important to provide that opportunity, and the fact that we have what is, in effect, another of our useful seminars among colleagues who were thinking freely and without being tied to an agenda has been valuable. Some important points have been made. The noble Lord, Lord Selsdon, made an important point about in-reach, not outreach. There is no substitute for visits into the Parliamentary Estate, particularly for young people. In-reach is important as well as outreach, and I also agree with him that information should be fun. The committee’s work is lots of things; it is sometimes fun, sometimes it is hard work, but it is important work, and we need to bear that in mind.
I just want to take up a point from the noble Lord, Lord Maxton. He is right to be impatient for change for wi-fi roll-out, but there are practical difficulties about the public contract, which has to go through European procurement rules. That is what is actually holding the thing back; there is a cost, but there are some procurement rules which we cannot avoid. We will know soon who the contractor will be, but then there is a lot of bureaucracy to go through; it is all European-compliant legislation of which we have to be very careful to take account. The earliest we can possibly do it is March 2013, but he will know—because he keeps up with these things—that there is an advantage to that, because the standards for wi-fi provision are being upgraded and we will be able to take advantage of that. If we had done it earlier, we would have been with wi-fi one; we will actually be going into a situation with wi-fi two, as it were, so there is an advantage in hastening slowly, at least to that extent. However, I am grateful to him and I hope he will continue to challenge robustly the speed of the provision.
We have been in danger of anticipating the outcome of the committee’s deliberation on the evaluation of the tablet trials. I do not want to do that, as it is still a very open question, and we have to go through this process very carefully. I am grateful to all my colleagues who commented, including the well informed overview that the noble Earl, Lord Erroll, gave of the trial. He has vast experience in this are, which is valuable to the committee, and I take his point about generic systems. But the generic systems will be in the customisation of the applications for each individual Member, so the customisation that would be required for him will be at a much higher grade than for ordinary users. It is more customisation of generic systems that we have in mind.
The Earl of Erroll
My Lords, this is of course the advantage of having an iPad which is indexed immediately with my comments, which one can do in a PDF. The document is actually talking about a use of bespoke solutions for Parliament’s unique core systems, in paragraph 12 on page 7. That was the one that worried me. I entirely agree with the noble Lord about customisation for individuals at the front end; it is a very good idea.
Lord Kirkwood of Kirkhope
I thank the noble Earl. We are not far apart on this now. I am grateful to him for his other comments as well.
The noble Lord, Lord Haskel, was very kind to the House staff. We all feel that too; I think Member-led outreaches are invaluable and difficult to improve upon. I hope the debate has provided the House more generally, in Grand Committee context, with an overview of what we are doing and that we as a committee will decide to have another annual report, because they are good for the committee. They make you always look back at what you have done and give you a better idea of what you want to do in future. We are facing a challenging two or three-year period in the run-up to 2015. The committee is very vigorous and knowledgeable about this. I enjoy participating in it and am grateful to colleagues for the energy they put into the committee, which is in the service of the House and for the benefit of the House. There is a lot of work to do, and I hope it will continue to be fun. On that basis—because the Grand Committee has a lot of important work to do for the rest of the afternoon—I have pleasure in moving that the committee’s annual report for 2010-11 be noted by the Grand Committee.
Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2012
Lord De Mauley
That the Grand Committee do report to the House that it has considered the Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2012.
Relevant document: 41st Report from the Joint Committee on Statutory Instruments
Lord De Mauley
My Lords, on behalf of my noble friend, Lord Freud, I will also speak to the draft Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012.
It is a requirement that I confirm to the Committee that these provisions are compatible with the European Convention on Human Rights, and I am happy to do so. The purpose of these two regulations is to increase the amounts of lump sum compensation paid under the Pneumoconiosis etc. (Workers' Compensation) Act 1979, and the 2008 mesothelioma scheme set up by the Child Maintenance and Other Payments Act 2008. The increased amounts will be paid to those who first satisfy the conditions of entitlement on or after 1 April 2012.
The earlier drafts of these regulations contained an error in one of the rates in the dependant tables. Had the error not been corrected, it would have meant that certain dependants could have received more than a sufferer in a very small number of cases. That cannot be right and so action was taken immediately the error was identified to withdraw the earlier regulations and correct that error.
Both schemes stand apart from the main social security benefits uprating procedure and there is no legislative requirement to make annual increases in the amounts payable under these two schemes. However, in recent years, increases to the amounts paid have been made in line with the rate of inflation, and the amounts payable for 2012 are being increased by the same rate that is being applied to social security benefits —that is, uprated by CPI—of 5.2 per cent.
Both schemes fulfil an important role in providing compensation where no civil action can be taken against an employer, the person responsible for the exposure to asbestos or one of the other listed agents. They also ensure that sufferers receive compensation while they can still benefit from it.
Noble Lords will know that improved health and safety procedures—
Lord De Mauley
Noble Lords will know that improved health and safety procedures have now both restricted the use of asbestos and provided a safer environment for its handling. However, we are all aware of the legacy created by the common use of asbestos before its effects on people’s health were fully understood. The Government are confronting the results of that common practice by ensuring that financial compensation is available to those affected. Indeed, that is why both of these schemes were introduced.
It might help noble Lords if I briefly summarised the specific purpose of each scheme. The Pneumoconiosis etc (Workers Compensation) Act 1979, which for simplicity of pronunciation I shall abbreviate to the “1979 Act”, provides a lump sum compensation payment to those who suffer from one of the five dust-related respiratory diseases covered by the scheme and who are unable to claim damages from employers after they have gone out of business. In outline, the diseases covered are diffuse mesothelioma, bilateral diffuse pleural thickening, pneumoconiosis, byssinosis and primary carcinoma of the lung, if accompanied by asbestosis or bilateral diffuse pleural thickening. A claim can be made by a dependant if the sufferer has died before being able to make a claim.
A person who is injured or contracts an industrial disease as a result of their work may sue the employer for damages. However, the diseases covered by the 1979 Act are known as long-latency diseases as they take a long time to develop and may not be diagnosed for a very long time after exposure to the dust that caused the illness. This is particularly so for the asbestos-related diseases within the scheme, such as primary carcinoma of the lung or mesothelioma. In some cases, it may take up to 40 years between the original exposure and the linked disease. Given that length of time, noble Lords will not find it surprising that by the time diagnosis is made, the employer responsible may no longer exist. As a result, sufferers and their dependants can find it very difficult to undertake a successful civil action to obtain compensation and the 1979 Act was introduced to help such people.
The mesothelioma lump sum payments scheme was introduced under the last Government in 2008 to provide compensation to people who contracted mesothelioma but were unable to claim compensation under the 1979 Act because their exposure to asbestos was not due to their work or because the asbestos exposure was simply unidentified. Noble Lords may recall the case of the unfortunate woman who contracted mesothelioma from washing her husband’s work clothes. The 2008 scheme means that payments can be made urgently to mesothelioma sufferers at their time of greatest need. If a sufferer dies before making a claim, a 2008 scheme payment can be made to a dependent.
The annual incidence of mesothelioma continues to increase. There are currently over 2,300 deaths from the disease in men and women each year. When other asbestos-related deaths—mainly lung cancer and asbestosis—are added, it is likely that there are now over 4,000 asbestos-related deaths in total each year. While it is always difficult to forecast exact peaks, the latest available information suggests that mesothelioma deaths in men will continue to increase to a peak of around 2,100 deaths in 2016. It is more difficult to predict when deaths in women will peak but it is likely that this will occur after the peak in men, albeit at a lower level.
Payment levels under the 1979 Act scheme are based on the level of the disablement assessment and the age of the sufferer at the time that the disease is diagnosed. The highest amounts are paid to those who have been diagnosed at an early age and with the highest level of disablement. Under the 2008 scheme, as well as under the 1979 Act, all mesothelioma disablement assessments are made at the 100 per cent rate. This means that for someone suffering from mesothelioma the amount of payment under both schemes will vary only according to the age of the person at the time of diagnosis.
Over 50 per cent of claims under the 1979 Act are made in respect of mesothelioma, a particularly unpleasant and fatal disease, caused almost exclusively by exposure to asbestos. Those diagnosed with mesothelioma usually have a short life expectancy, generally between 12 and 18 months. It is common that the sufferer is severely disabled very soon after diagnosis. I am sure we all agree that no amount of money can ever compensate sufferers or their families for the damage caused by these diseases, but it is right that they receive financial compensation, and as quickly as possible. These regulations help ensure that the level of government compensation provided by both schemes maintains its value. I commend the increase of the payment scales to noble Lords and ask approval to implement them.
Lord Avebury
My Lords, I am most grateful to the Minister for his careful explanation of these two orders. There are one or two questions that I would like to put to him. First, he says that there is no statutory obligation to continue uprating these payments at the level that they have been in the past. I wonder what guarantee there is that, in the future, the percentage upratings that we are looking at now will continue to be maintained. If there is not any statutory obligation, how can the victims of these awful diseases come to the expectation that they will not be left in the lurch if there is some financial emergency and that, as with many other poor and vulnerable people, they will not be made to contribute some of the miserable pittance that they are awarded towards the repayment of the deficit that we all know is constantly in the Government’s mind?
My noble friend pointed to the legacy of these frightful diseases, which may continue to emerge for 40 years after the sufferer has first been in contact with the substance concerned, whether it be industrial dust or, in the case of mesothelioma, asbestos. Have the Government formed any estimate of the total cost of dealing with these diseases in terms of the compensation that will become available over the long tail that we expect to develop in the future? I was pleased to note from his speech that this peak will be reached for men in 2016, and for women a little bit later, but we know that thereafter sufferers will continue to emerge and some 60,000 of them are expected to be discovered at some point in the future.
Lord Wigley
My Lords, I will briefly intervene in this debate. I am thinking back to 1979, when the original legislation went through, and the number of different groups of workers, including slate quarrymen from my own constituency, who were failing to get compensation through action against ex-employers for the reason that, as the Minister mentioned, many of them had gone out of existence and there needed to be some safety net.
In a recent Question on the Floor of the House, I raised the issue of people who are suffering from diseases similar to pneumoconiosis that are endemic in slate quarrying, such as chronic bronchitis and emphysema, which have been recognised as an industrial disease associated with pneumoconiosis for coal miners but not for slate quarrymen. I realise that the diseases defined by the 1979 Act are five and that they are specific, but the ones additional to pneumoconiosis were brought in because they were associated with and arising from the work that was undertaken. I would be very grateful if this issue could be pursued further because, although I have had a reply from the noble Lord, Lord Freud, who gave the reason that I have outlined, the trade unions involved still feel that there is a group of workers, albeit a very small one, which is missing out by the way in which these matters are being interpreted.
I touch on the mesothelioma dimension. As the 2008 scheme tries to gain compensation recovery following the payments out, it would be interesting to know what the Government’s line is with regard to the possibility of the legal aid legislation that is going through now having a direct and negative effect on this. The numbers of people that we are talking about are some 2,000, 3,000 or perhaps even 4,000 a year, and over the next 30 years some 40,000 people may have claims. So it is very important that there is some transparency in this and, therefore, I hope that the Minister will be in a position to give some indication of the thinking on that matter.
Lord Jones
I support the remarks of the noble Lord, Lord Wigley. I thank the Minister for his patient and dignified introduction and acknowledge the work of my noble friend on the Front Bench, who had a splendid record of caring about these matters when for a number of years he was a Minister. I know that he was well served by his Civil Service team, some of whom are present today.
These regulations have their origins in the social, economic, industrial and political history of Britain, and they are of very specific interest to the people of Wales. I do not think that we can ever let these regulations just go through, although one wholeheartedly supports the proposals promulgated today by the Minister. We should acknowledge what the regulations reflect; much of our industrial and economic history, and the consequences of that history, is considerable. My noble friend Lady Golding is present in this Committee, and I draw attention if I may to the biography of her distinguished father, who was a miner and government Minister as well as a man of south Wales of huge stature. In his biography there is a great deal of detail, which presages what the Minister proposes and which we most happily accept. My noble friend knows in great detail the south Wales coal-field—what is left of it—what it meant and what happened there.
From my own experience in north Wales, as late as 1970 there were 12 collieries, which disappeared very quickly. But there was a considerable mining industry in much of Wales, north, south and in the west as well as the east. We should never forget the contributions made by the coal industry to prosperity and provision generally for the majority of the people in the nation.
The estate where I grew up was on a levelled-out coal tip, and such ragamuffins as lived on that estate would go out to play in the fields and, perhaps once a year, find a new shaft that related to the old mines. To find out how deep the shaft was you would heave a brick in it and count how many seconds before the splash. That is the culture, background and origin of the regulations, and the mother of Parliaments should never forget whence they came. And so it is relevant for Members to come to your Lordships’ committee and make a few points. With regard to the quarrymen—and I was glad to hear the remarks of the noble Lord, Lord Wigley—I would like to mention particularly some names, because these regulations have their beginnings in the work of Lord Cledwyn Hughes, Lord Harold Walker, Sir Elwyn Jones, who lived in Anglesey, and Mr Tom Jones, who was a Transport and General Workers’ Union official, and is still about. Also, the then Welsh Office in the late 1970s was heavily involved in bringing about an introduction of some redress for quarrymen. It is the case that the noble Lord, Lord Wigley, and his compatriot, the noble Lord, Lord Elis-Thomas, were also involved.
The Government of the day was led by James Callaghan. I had the honour to serve in it, and having mentioned some distinguished names with regard to measures for the quarrymen, I had a small part in the origins of help for the quarrymen. In so far as I have mentioned names, there is parliamentary history of a kind, rooted in a culture and an industry in Wales.
May I say to the Minister—because he is more than a good sport—that if he was not too busy one weekend or one day, he might visit a quarry in north-west Wales, in Blaenau Ffestiniog, called Llechwedd? It is currently a museum of a kind, but if a Minister, or a noble Lord, or a noble Baroness, were to step into Llechwedd, and just listen and feel in the dark and the damp again, they would be struck about the need for these regulations. That particular quarry required the poor workman to bring his own candles to illuminate his slaving away. In that quarry you see how the prospect of injury was ever present.
Again, as a witness to the very warp and woof of what the regulations refer to, it is a very powerful reflection of what was ordinary work for thousands of people not that long ago. To give further verisimilitude to what I propose is the fact that there was a strike in the mid-1980s. I had the duty—perhaps honour—to address those 50 to 55 men in this industrial dispute. It was winter time and there was snow on the ground. It was in Blaenau Ffestiniog, which is a windswept, rainy place, of great beauty when the sun shines, but it needs the sun. Here I saw the end, almost, of a great industry. The industry at its height sent its product all over the world, and many of London’s roofs are covered with slate from the north Wales quarries.
Baroness Donaghy
I speak as somebody who lost a stepfather and a sister-in-law to these diseases, but mainly I speak because I produced a report on fatalities in the construction industry for the previous Government. Although my remit was to look closely at fatalities on site, I also saw the figures for disease and the figures that the noble Lord mentioned. At that stage, I think there were something like 4,500 deaths a year from lung-related diseases. This is a silent killer of the most horrendous proportions. The noble Lord indicated the lack of future for so many.
My concern is that the profile should be higher. What work is the Health and Safety Executive doing to improve that profile? Is any more research being done? I know that technically I am probably out of order on these regulations but, as the noble Lord, Lord Avebury, said, this is extremely important. Silicosis is going to come up further down the track. Every worker you see in London carving up the corner of a pavement and not using a water spray or wearing a mask over his face may well be dead in 15 years’ time. It does not take as long—it does not take 40 years. We could do an awful lot more. I know that these regulations are about people who have already contracted these fatal diseases, but we should try to raise their profile and to do more to prevent them because some of these killers are still there. It not a question of them peaking in 2016. Some other industrial diseases are coming along, and I do not believe that sufficient work is being done on them.
I have a question, and I understand if the Minister does not have the answer immediately. Could some inquiries be made about what work is being done by the Health and Safety Executive and about what can be done to improve these diseases’ profile and their prevention?
Lord McKenzie of Luton
My Lords, I thank the noble Lord, Lord De Mauley. I know he has stepped into the breach at fairly short notice because the noble Lord, Lord Freud, is unwell. We send our best wishes to him. I thank noble Lords who have contributed, particularly my noble friend Lord Jones. He is absolutely right; we should not see these orders each year just as a technical uprating. They are a chance to reflect on their history and what they mean. My noble friend, together with the noble Lord, Lord Wigley, were, in my noble friend’s terms, participants in and witnesses to what went on in those communities. People of my generation, brought up in the relative safety of the south-east, only read about it and listened to it. It is a good opportunity to remind ourselves what we owe to those mining and quarrying communities.
As the Minister said, there is no statutory obligation to uprate these compensation amounts so I would say that a CPI uprating—so far as it goes—is welcome. Had the noble Lord, Lord Freud, been in post, we might have engendered a bit of a debate about the difference between RPI and CPI and which is the more robust statistic. I will, however, forgo that on this occasion. I am sure that the Minister will be grateful for that. We aligned the payments under the 2008 Act with the 1979 Act a couple of years ago; they were not aligned when they were introduced. That was one aspiration. There was another aspiration to narrow the gap between the amounts due to claimants and the amounts due to dependants. I should be grateful if the Minister could tell us whether that is still an aspiration of the Government.
As we have heard, the concept is that the 2008 scheme was to be funded out of compensation recoveries—compensation from civil cases. Therefore, can we have an update on the levels of recovery; what percentage of 2008 scheme payments are covered by this; and what the estimate over the CSR period is? I follow the noble Lord, Lord Avebury, on the question that he posed on behalf of the noble Lord, Lord Alton—and, indeed, the noble Lord, Lord Wigley—about how this works with changes that have been made to the Legal Aid, Sentencing and Punishment of Offenders Bill. My understanding—I have not followed the intricacies of that Bill in great detail—is that there are government concerns about conditional fee arrangements being exploited, and that 25 per cent of success fees will, in future, be met out of the compensation payments. I think that is the proposition.
Therefore, my question to the Minister is: what will be the impact on the compensation recovery arrangements that help to fund the 2008 scheme if there will be that reduction in compensation recoveries? Presumably that will impact, at some stage, on the levels of compensation that will be due under the 2008 scheme. Indeed, it depends on the relationship between the overall compensation in individual cases and the level of compensation under the 2008 Act scheme, but it adds a challenge for the Government. Why should they go down that path in these circumstances as, in a sense, they risk taking the hit on these deductions themselves? I should be grateful if the Minister would give us a read across to what is happening in that legislation and what it means for compensation levels going forward.
I hope that the Minister gave us the projected numbers and what was going to happen in the upcoming years. We have discussed progress on the Employers’ Liability Tracing Office—the ELTO—before, which I think was, again, the point being pursued by the noble Lord, Lord Avebury. We know that the noble Lord, Lord Freud, has previously, expressly taken a direct interest in that. The FSA consultation proposes that the ELTO cover all employer liability policies—entered into, renewed or for which claims were made—on or after 1 November 1999. However, the FSA policy statement requires only the recording of new policies— I think from April 2012. Therefore, what is the progress on back-filling the pursuit of those policies to 1999? Clearly, people’s ability to trace those policies is particularly important. We know the challenges posed, as the Minister and others have expressed, by long latency of the conditions with which we are faced.
I also ask the Minister whether any progress has been made on ELI, which will be the insurance bureau of last resort—a parallel to the Motor Insurance Bureau—so that when policies could not be traced there would be a collective compensation pot. There was a consultation document on that in, I think, the first quarter of 2010. I sought an update on progress before and would be grateful if the Minister could let us know the current position.
My noble friend Lady Donaghy talked in particular about her work in looking at the construction sector, and the importance of and the debt we owe to the Health and Safety Executive. We are at the moment in a rather ironic situation where the Government are consulting on asbestos regulations because the Commission has challenged the status quo about whether that was an effective translation of what it required. We have a Government now, thankfully I think, supporting the previous Government’s position on this. We usually hear that the EU is all about gold-plating and the UK Government follows suit.
I also take the opportunity to ask about the HSE’s resources. In particular what is happening on the proposed charging regime for the field operations directive, which was an integral part of its funding arrangements for the current CSR period? We are, as I say, indebted to the HSE for the tremendous work it does. My noble friend Lord Jones made the point that 20 years ago people did not realise that asbestos was dangerous. They played with it. It was a source of amusement. The research, work and preventive stuff that the HSE does is a route to making sure that history does not repeat itself, although we are still living, as are those tens of thousands of people the noble Lord referred to, with the challenges of the past.
Finally, given that these orders are all about the risks that workers and their families take, and the terrible suffering that comes from these conditions, can I just put it in the context of what is now International Workers’ Memorial Day? It was officially recognised a couple of years ago but has been marked in one way or another for many years. Can the Minister give us an update on what the Government are proposing to do to mark and acknowledge that day? Perhaps in closing I can remind him of the slogan that goes with that:
“Remember the dead and fight for the living”.
Lord De Mauley
Perhaps I can start by thanking all noble Lords who have participated in this brief debate for the sensitive way in which they have done it. As we have discussed, we are talking about some very terrible diseases and these things need to be approached in this way.
A large number of questions have been asked. Let me see how many of them I can tackle now. If I cannot, I hope noble Lords will forgive me if I write afterwards. My noble friend Lord Avebury pointed out that there was no statutory obligation to maintain the level of payments and asked what the Government’s position was. I think the noble Lord, Lord McKenzie, also referred to that. The Government have no plans to make any changes to these two schemes. We review them regularly to ensure they remain well targeted and we will continue to consider uprating as appropriate.
My noble friend asked what is being done to support people who need to trace employers’ liability insurance. I appreciate that the Government’s response to the consultation is taking longer to publish than many had hoped. However, the issues raised are complex and we remain in active discussions with all the stakeholders to make sure we get this right. We are still carefully considering all the issues and we will bring forward our proposals in due course.
My noble friend asked whether there was a long-term estimate of the cost over what he described as the “long tail”. We have not estimated the cost to the Government of these two schemes over the long tail. If I can find anything out from my noble friend, I will write to him, but I am not aware that we have made estimates. He asked about the possibility of extending the 1979 Act where diseases cannot be traced back to employers. I have to inform the Committee that there are no plans to extend the coverage of the 1979 Act to those whose disease was not covered by their employment. The 2008 scheme covers those people who contracted mesothelioma outside work, but mesothelioma is a special case because of the very short life expectancy of sufferers.
Lord Avebury
Could I ask the noble Lord a question put to him earlier? As he knows, there is still a large gap between the payments to living victims of mesothelioma and those made to their estates after they have died. For example, the payment to a sufferer aged 67 is £17,416, while the payment to his dependants if he dies at that age is only £7,915. There is still an enormous gap between these two figures. There was a commitment by the previous Government to reduce and, over a period, to eliminate this differential. Could my noble friend say whether it is the Government’s policy to continue with that diminution of the gap and, if so, whether there is any date by which they hope the process will be completed?
Lord De Mauley
My Lords, as I have made clear, there is an issue about the availability of resources. We think it is very important that they are targeted principally on sufferers of the disease, but we recognise the plight of dependants. That is why, under the previous Government, dependants’ amounts were increased by up to £5,000. If I can add to that from my notes I will do so, but I will possibly do so in writing, if I may.
When I came to the points of the noble Lord, Lord McKenzie, I meant to thank him for his good wishes to my noble friend Lord Freud. I will send on his message. Closely allied to that is my thanks to him for letting me off the hook on a debate about CPI and RPI.
He also asked about progress on the employers’ liability insurance bureau. We understand the urgency of the situation. After all avenues have been exhausted, injured people are still unable to find an insurer to claim against. We are continuing to work hard to see what can be done for them, but I am not in a position to go further than that today.
The noble Lord, Lord McKenzie, asked about compensation recoveries forecast over the CSR period. We estimate compensation recoveries for 2012-13 as being in the region of £21.8 million. That is for both schemes. I will write with further information if I can find it.
Lord McKenzie of Luton
Can the noble Lord tell me what the total estimated projected cost for the 2008 compensation scheme is for the same year? I am just trying to identify the gap between recoveries and the amount.
Lord De Mauley
I may be able to come to that in a moment. The noble Lord asked about the HSE charging regime. Unfortunately, I am not able to answer him now but I will write with that information. He asked about our plans for Workers’ Memorial Day. Ministers are considering what official action would be appropriate for 2012. However, the focus of the day, as I understand has always been the case, should be on local events organised by individuals and organisations to commemorate those who have died, been injured or made ill through their work.
Lord McFall of Alcluith
If the Minister could make a positive statement that the memorial day is a good day, that would help enormously. When I was the Member of Parliament for West Dunbartonshire, we had that event for four or five years. It is important that a message on that goes out from the Government. Also, given the Scottish experience, will the Minister consider what has happened in the Scottish Parliament regarding relatives so that the sufferers do not have the iniquitous choice of having to take their case through court or die before their relatives can get compensation? Further, can the Minister ensure that the court cases are speeded up? There was a huge problem in Scotland until the Lord President acceded to the request to have a designated judge for these cases who would become familiar with the procedures and speed them through the courts, thereby having a more humane way of compensating for this terrible disease.
Lord De Mauley
I thank the noble Lord for that intervention. I agree with him and I should like it to go on the record that I think it is a good thing that such a day is marked in an appropriate way. As regards his comments about what is going on in Scotland, perhaps I may take them back to the department. That is a helpful suggestion and I thank him for it.
The noble Lords, Lord McKenzie and Lord Wigley, referred to the legal aid Bill and a perceived conflict between the two situations. General damages for things such as pain, suffering and loss of amenity will be increased by 10 per cent. The success fee that the lawyer can charge will be capped at 25 per cent of the claimant’s damages, excluding any damages referable to future care or future losses. This will help to protect the claimant’s damages, as well as any recoveries that the Government might make. Further to that, abolishing the recoverability of success fees and “after the event” insurance premium is the most important element of the reform package for civil litigation and represents a fundamental change to conditional fee agreements. This change will mean that claimants have an interest in the costs being incurred on their behalf, and it will introduce proportion and fairness to the current conditional fee arrangement regime. I appreciate that this is a sensitive area and we will be considering its effect.
Lord McKenzie of Luton
I am sorry to press the noble Lord but this is something which is quite current given that there is going to be a debate tomorrow on the Bill. Have I correctly understood what the noble Lord has said? Do the Government recognise that these proposals mean that the compensation of recoveries is going to be reduced by the effect of these fees, or are the fees otherwise going to have to be met out of the 2008 compensation?
Lord De Mauley
I shall have to get back to the noble Lord on that. I appreciate that we are on a rather tight timetable and will do what I can. He asked about the cost of both schemes for next year and I can give him a figure of £53.1 million.
Lord McKenzie of Luton
Perhaps the noble Lord will split that for me between the two schemes.
Lord De Mauley
It is distinctly possible but I am not sure that I can do it now. The noble Baroness, Lady Donaghy, asked what can be done to improve the public profile of these diseases and she made an important point. Building on the success of the hidden killer campaign, which targeted trades people who are the group of workers most at risk from exposure to asbestos, the HSE continues to warn against the dangers of all types of asbestos, working in partnership with unions, industry, suppliers, training providers and victim support groups. A recent example is the training pledge whereby organisations providing asbestos awareness training volunteered to supply more than 13,500 hours of free training for trades people who may come across asbestos in their day-to-day work. The noble Baroness is right. We are still discovering asbestos today.
The HSE is currently considering options for a further campaign along the lines of hidden killer. However, that will depend on the availability of funding, and decisions on what such a campaign might entail have yet to be made. I thank the noble Lord, Lord Jones, for his contribution, which brought the whole matter to life for me and helped us to see how terrible these diseases are.
As regards splitting the figure as required by the noble Lord, Lord McKenzie, under the 2008 scheme the figure is £9.2 million, and under the 1979 scheme the figure is £43.9 million.
Lord McKenzie of Luton
Does that mean that the recovery levels are double the 2008 compensation payment allowance?
Lord De Mauley
I shall have to write but will do so as quickly as I can. As regards any other questions raised by noble Lords, I will write what is becoming an expanding letter. I thank all noble Lords who have participated. As I hope I have emphasised, the Government recognise that these two schemes perform an important role. I commend the uprating of the payment scales and ask for the approval of noble Lords to implement them.
Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012
Lord De Mauley
That the Grand Committee do report to the House that it has considered the Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012.
Relevant document: 41st Report from the Joint Committee on Statutory Instruments
Occupational and Personal Pension Schemes (Automatic Enrolment) (Amendment) Regulations 2012
Lord De Mauley
That the Grand Committee do report to the House that it has considered the Occupational and Personal Pension Schemes (Automatic Enrolment) (Amendment) Regulations 2012.
Relevant document: 41st Report from the Joint Committee on Statutory Instruments
Lord De Mauley
My Lords, on behalf of my noble friend Lord Freud, I am pleased to introduce two instruments, which were laid before the House on 7 February. They form the final pieces of the framework for automatic enrolment. I am required to say that I am satisfied that they are compatible with the European Convention on Human Rights.
It is vital that we tackle the problem that increasing longevity brings when coupled with decreasing pension saving. Millions of people are simply not saving enough for their retirement. Automatic enrolment will, for the first time, place a duty on employers to put their eligible workers into a pension scheme. This will result in between 5 million and 8 million people newly saving or saving more in workplace pensions.
We are now very close to the start of the roll out. As my honourable friend the Minister for Pensions has said, for many of us, it is automatic enrolment rather than the London Olympics which will be the main event in 2012. We are very grateful to the Mayor of London for installing a countdown clock in Trafalgar Square so that we can count the days, hours and minutes before automatic enrolment begins for the first workers.
Your Lordships' House has debated automatic enrolment legislation for more than four years. The time has now come to bring closure to some complex issues that have vexed noble Lords in particular. The instruments that we are debating today cover two broad areas. The first is certification of money purchase, personal and hybrid pension schemes. There is quite a history to this issue, but at its heart we sought a pragmatic solution to a complex problem. It is important to start by emphasising the basics: why we wanted to provide a simple self-certification process, and how we managed to do that.
The aim of certification is to allow employers who already provide good-quality workplace pension schemes to continue to do so after the reforms have started, without having to make costly changes to their existing schemes or payroll processes because they calculate pension contributions on basic pay rather than on a band of qualifying earnings. As they will do this by self-certifying that their scheme satisfies the relevant quality requirements, we wanted the self-certification test to be as straightforward as possible. However, as my noble friend Lord Freud mentioned last year in debate on the Bill, there is a balance to be struck in this area between simplicity and providing appropriate safeguards to individual members. We believe that we now have this right. We have worked closely with employers and the industry and have listened to their concerns, as well as the concerns expressed by noble Lords.
Safeguards for jobholders were hotly debated by noble Lords during the passage of the Pensions Act 2011. After careful consideration of the concerns expressed, in particular by the noble Lord, Lord McKenzie, and the noble Baroness, Lady Drake, we tabled an amendment with a strong and enduring requirement for the Secretary of State to ensure that at least 90 per cent of jobholders will not lose out. The detail of how certification will work in practice is specified in the regulations that we are discussing today.
In the debate last year, my noble friend Lord Freud described a proposed approach that would provide a three-tier structure for self-certification. Under this, an employer will be able to self-certify that their scheme meets the alternative quality requirements if it requires one of the following: first, contributions of at least 9 per cent of basic pay, including at least 4 per cent from the employer; secondly, contributions of at least 8 per cent of basic pay, including at least 3 per cent from the employer—and in addition, basic pay taken in aggregate must be at least 85 per cent of total pay; or thirdly, contributions of at least 7 per cent of total earnings, including at least 3 per cent from the employer. This is the test we are providing in regulations, with fine-tuning of the detail taken on board during consultation.
Before I come to the fine-tuning, I will stress the significance of the provisions. They mean that employers who already provide their workers with a pension will be able to meet their new duties without having to make costly and burdensome changes to pension schemes and payroll systems. Crucially, I will confirm that they also meet the test that the vast majority—at least 90 per cent of jobholders—will receive at least as good a deal as they would have done had they been in a scheme where the contribution was based on qualifying earnings. Indeed, many will be better off.
When we tested the draft regulations through consultation, there was broad support for our proposals from organisations that represented employers, the pensions industry and individuals. There was particular support for striking the right balance so that we have something that works for employers while providing appropriate protection for individuals.
We heard a strong message that the definition of basic pay needs further refinement so that it provides certainty to employers. We have now provided this by explicitly excluding several allowances—as well as bonuses, overtime and commission—from the definition of basic pay. The test that at least 90 per cent of jobholders should not lose out will still be met.
Another request that we have been able to meet in response to the consultation was to extend the proposed one-year certification period to 18 months. This will enable employers to carry out the renewal of their certificate at an appropriate point, depending on their use of the waiting period and the flexibility around three-yearly re-enrolment. We have published guidance for employers and their advisers alongside these regulations, which we intend will help to explain how certification will work in practice to ensure that schemes can qualify to be used for automatic enrolment.
The second part of these instruments is aimed at ensuring that automatic enrolment will provide access to pension saving for as many people as possible by bringing in some groups of individuals who are currently out of scope. Following an amendment brought in your Lordships’ House, the Pensions Act 2008 excluded seafarers and offshore workers from the reforms. However, this exclusion was only ever intended to be temporary. Additional time was needed to resolve some very complex legal issues—in particular in relation to international maritime law and custom—that are relevant to how the reforms should apply to seafarers and offshore workers.
We have worked closely with organisations in the shipping and offshore industries, as well as with other government departments, and are now confident that we have satisfactorily resolved these issues. I am particularly grateful to the Chamber of Shipping and the relevant trade unions for their considerable input, without which we might not have been able to make this progress.
The instruments that we are debating today will ensure that both seafarers and offshore workers are covered by the reforms. For the sake of clarity, when we talk about seafarers in this context we mean people working on ships or hovercraft, but we do not include share fishermen as they are self-employed and, like all self-employed people, they are outside the scope of the reforms. Offshore workers are, broadly speaking, those working on oil or gas rigs in the North Sea.
In brief, we are now satisfied that both seafarers and offshore workers should be jobholders if they are “ordinarily working” in the United Kingdom and meet the age and earnings criteria. This means that we will treat them in the same way as those working on the mainland. This is a similar approach to that adopted for the national minimum wage. The Pensions Regulator has now provided guidance on the application of the “ordinarily working” test.
The provisions for both seafarers and offshore workers are subject to a statutory review and contain a sunset clause. We have made this compulsory for all new legislation where there is a net cost to business, and it will allow us to monitor the operation of these provisions and contribute towards our goal of transforming the role of regulation in our society.
Finally, police officers do not have employers for automatic enrolment because the police are officeholders.
Lord De Mauley
My Lords, if I may continue from where I was interrupted, I was about to say that, finally, police officers do not have employers for automatic enrolment because the police are officeholders. The Pensions Act 2008 brought police officers and police cadets into automatic enrolment by deeming them to be employed by the relevant police authority. However, police officers seconded to the Scottish Crime and Drug Enforcement Agency or the Scottish Police Services Authority had no such employment relationship because, despite its name, the Scottish Police Services Authority is not technically a police authority as defined in the legislation. These regulations correct that and extend the definition of worker for automatic enrolment to these two groups of police officers. I commend these instruments to the Committee.
Baroness Drake
My Lords, as I was strolling to this Committee this afternoon, a noble friend stopped me and asked where I was off to. When I advised him that I was off to deal with some statutory instruments, he said to me, “I hope you sit quietly and say very little, as we do in the Commons”. I gulped quietly as I held in my hand my 10 minutes of detailed script. I did not know whether to feel admonished or what. I told myself that our role is to scrutinise, so I hope that noble Lords will bear with me and allow me to go through the issues that I want to raise and ask questions on.
As the Minister has said, these regulations set out the alternative quality requirements. I acknowledge the amendment made by the Government to Section 12 of the Pensions Act 2011, and I accept that considerable work and thought have gone into drafting these regulations. Nevertheless, I remain anxious because, as the Minister has said, the main purpose of the alternative quality requirement test is to give an easement to good employers with good DC pension schemes to encourage them to retain those schemes. This makes good sense and one would not want to undermine the continuation of good existing provision. That sits full-square with the public policy intentions. However, the alternative quality requirements—and this is what makes me anxious—should not enable bad employers to leverage self-certification to avoid their responsibilities.
On the form of certificate showing that the alternative quality requirements are satisfied, the requirements, particularly the facility to use the alternative test for part of the scheme or only for some jobholders, give rise to the potential to leverage the regulation to reduce auto-enrolment costs, for example where high and low earners are grouped together and/or where non-basic pay makes up a very significant proportion of earnings.
I welcome the requirement in the regulations on employers to provide information of both the names and the roles of the relevant jobholders where the certificate relates to only some of the jobholders, because they should assist in identifying bad behaviour, particularly as the Secretary of State has a responsibility to review the strength of the alternative certification test. I would welcome the Minister confirming that the findings from the Secretary of State’s review of the alternative certification requirements will be published prior to the wider 2017 review of the pension reforms as a whole.
I also ask the Minister about trust-based scheme with trustees and rules. Will the trustees bear any responsibility on the matter of whether the employer’s scheme or part of the scheme can satisfy the alternative quality requirements? If the answer is yes, will that also apply to trustees of multi-employer schemes and master trusts?
As for the renewal of the certificate, the employer has to assess on renewal whether during the past or future certification periods, the quality requirements were or will be met. Where an element was not met—in the past tense—the employer must consider what action needs to be taken to ensure that does not happen in the future. That requirement is welcome for future certification periods, but my question to the Minister is this: if it is revealed that a jobholder who should have been auto-enrolled was not auto-enrolled, or where some one receives an employer contribution lower than it should have been under the relevant quality requirements, will there be a legal requirement on an employer to notify the jobholder and to make good their employer contribution?
On the alternative requirements themselves for money purchase schemes and likewise for other schemes, I remain concerned that the first and second tests provide for pensionable earnings to be equal only to basic pay. For good employers, where basic pay makes up a significant proportion of earnings, a minimum of 4 per cent of employer contribution is clearly going to be a good base load. However, where basic pay forms a significantly lower proportion of their earnings, I remain concerned about abuse, particularly when that is taken with the explicit acceptance that there can be a 10 per cent shortfall in contributions for those who lose out.
I welcome the fact that a scheme is not to be treated as meeting the relevant quality requirements where the regulator is of the view that there are no reasonable grounds to do so and the regulator can issue compliance notices on employers where there is a shortfall in contribution payments or a failure to meet an alternative test. When the regulator issues a compliance notice on an employer, and a relevant jobholder during the certification period has since ceased to be employed, will the employer still have to make good any shortfall in respect of that now ex-employee or ex-jobholder?
As to the definitions in the regulations, the definition of basic pay lists all those payments and allowances that can be disregarded. The assumption in the drafting is that these additional payments are paid in addition to basic pay, so it is straightforward to disregard them. Sometimes such allowances are given in substitution of basic pay, so if you have salary substitution, basic pay is forgone in exchange. The employer meets the cost of an expenditure, resulting in savings in NI and tax, often for both parties. The use of salary substitution has grown exponentially and we see it being applied to such varied items as pension contributions, the provision of cars, computers, bicycles, and childcare vouchers, to name a few. In such situations it would not be unusual for an employer to have pay records that track two basic pay entitlements for a jobholder: one that applies post-salary substitution; and one that applies when salary substitution ceases or when pay rises are awarded. Will the Minister say whether consideration has been given to how the definition of basic pay will apply in certification requirements when an employer uses salary substitution?
With regard to giving a certificate and its retention and disclosure, the regulations—clearly a good thing—allow for a relevant jobholder or a recognised independent trade union to request and receive a copy of that certificate within six years after the end of the certification period. Does the relevant jobholder have to be a jobholder at the time of making the request, or is it sufficient to have been a relevant jobholder during the certification period? If a request is made during the certification period, must that request also be met by the employer? I welcome the decision to extend the coverage of the new employer duty to seafarers and offshore workers. I read the impact assessment in detail, which sets out clearly the complexities that had to be dealt with and how the regulations have sought to address those. I am very pleased that that decision was made.
I take this opportunity to refer to the Automatic Enrolment (Miscellaneous Amendments) Regulations 2012. It is a negative instrument but it addresses the important matter of the schedule of information to be provided in a notice from the employer to defer automatic enrolment to the end of a waiting period and in respect of the automatic enrolment information provisions generally. As all of us who believe passionately in pensions recognise, automatic enrolment turns inertia into a positive, and anything that undermines that beneficial inertia will undermine persistency of savings. How the opt-out procedures operate in practice will be pretty key to the success of the reforms and participation rates. It is clear, which I can see from my own experience, that good employers will take the opportunity of auto-enrolment to review positively their pensions proposition for the new generation of employees. There is clearly plenty of evidence there.
Subtleties in the employer behavioural response to regulation, particularly negative behaviour, always surprises policy-makers. They always miss some key behavioural responses. Jobholders in high-turnover occupations will be particularly vulnerable to the subtlety of employer responses to these regulations. For example, nothing in the regulations prevents employers giving several reminders of the opt-out dates to jobholders during the waiting period, and clearly the implicit intent is to increase opt-out rates. The impact assessment helpfully refers to the DWP’s intention to issue a template for generic and tailored information to be provided by employers. If the information provided to jobholders is significantly different from the template, will that be considered a breach of the regulations?
Lord German
My Lords, I will reverse the order in which I ask questions of the Minister on these regulations and the order. First, I welcome, as I am sure we all do, the extension to seafarers and off-shore workers. I have two questions. The first relates to the ordinary working test and the second to some of the conditions that I see in the impact assessment and the Explanatory Memorandum. I wish to get some understanding of the number of people who will be brought into the structure and of whether some people might fall out of it because of the way it is prescribed in the proposed legislation.
On the ordinary working test, the flag-blind approach is very welcome. We must avoid people being switched from being a normally UK worker by virtue of their vessel changing its flag to that of another country. The ordinary working test, as I read it in the documentation accompanying this legalisation, defines people’s work as starting and ending in a UK port. There are two exceptions to that which can normally be the case with seafarers and off-shore workers. Seafarers sometimes work on vessels that are incoming to the UK. They will often be flown out to the vessel in order to work it and then back into the UK afterwards. Often their starting point will not be with a vessel leaving a UK port but a flight from a UK airport to join the vessel, and then they will either bring it back to the UK or leave it at some other foreign port. Naturally, these people regard themselves as working from the United Kingdom. They might be working on a ship with a UK flag but they do not necessarily start from a UK port.
The same applies to off-shore workers. I had the fortunate experience—and I say ‘fortunate’ because it was very interesting indeed—of going to an off-shore oil platform in the North Sea. Most workers go by helicopter from an airport rather than by vessel to the gas and oil installation. I wonder whether legislation that says,
“starting and ending from a UK port”,
actually means starting and ending from a UK base rather than a UK port.
As to the numbers of people involved, I notice the revision of the estimate of the workers who will be engaged. As I understand it, there are 22,200 off-shore workers in the industry who would be classified as working from the UK and 27,800 seafarers. But the numbers who are eligible for auto-enrolment are of course significantly less than that: 9,000 of the 22,200 off-shore workers and 17,000 of the 27,800 seafarers.
Could the Minister explain the difference between those two sets of figures? Is it perhaps that some of these people are already in a pension scheme that meets the eligibility criteria? I do not understand why they would not necessarily be seen as being eligible for auto-enrolment anyway. I do not know whether that is a definition problem or whether I have misread the numbers in the way they have been portrayed to me.
My second set of questions relates to the definition of the quality test, which has already been referred to by the noble Baroness, Lady Drake: that is, of course, the three tests being applied. In the discussions that we have had on these issues in Committee, noble Lords will remember that we talked about the quality of the alternative schemes as well as who would necessarily fall in or out of them. It is that quality test about which I would like to ask my noble friend a specific question. It is in relation to the fees and the ways in which moneys might be paid back for short-term investments in small pots where the length of service is below the number of years for which it would have to continue, and where people have been offering back a certain proportion of the money, or alternatively, where the fees that are being charged on the money which is invested are greater.
It is my understanding that the Government has now taken the powers to regulate the fees charged in this area and I wonder whether my noble friend could explain if and when those powers are to be taken up in order to provide an alternative quality pension provision for those who are not taking up the NEST scheme, which we know is on offer alongside it. In general terms, these orders take the date a little bit closer to the countdown clock and I welcome the fact that we are getting much closer now to the date when these schemes will become part of the mainstream for the workforce of our country.
Lord Boswell of Aynho
My Lords, almost by definition those attending in this room are enthusiasts for pensions, and we are a rather self-defining and small number. Of course, I would join in the approbation of both the principle of auto-enrolment, the related but not identical issue of the NEST scheme, and the new regulations which will provide some authentic alternative tests, and will make it easier for businesses to come to terms with auto-enrolment. That seems to be very welcome, and that should be put on the record. I do not think there is any material opposition, providing that we can make these things work.
I do not wish to add to the Minister’s troubles—because some very complicated issues have been raised—save only to comment on two of them. One is in relation to the remarks of the noble Baroness, Lady Drake, who knows this subject so well. When she raised the issue about salary sacrifice, it occurred to me that in some companies or organisations it would be not at all rare for arrangements to be made for consensual salary sacrifice with, as she said, the two options being put to an individual. There could potentially be a problem if there were a contractual arrangement, where perhaps there is a two-year undertaking and an option has been given for one or another, and the automatic enrolment might kick in in the middle. There would be difficulties unless the employer were particularly fleet of foot in ensuring that the employee was offered something new at that time because the situation might be different. That is a point of sensitivity which the Minister and officials may wish to consider.
My second point was prompted, although I am not for a moment suggesting that it is identical, by the issue about offshore employment. That is something that I have not thought much about since the days of the national minimum wage legislation, which was 15 years ago. Using that as a proxy—a very loose proxy—it occurs to me, reflecting back on the debates that we had on the Pensions Act last year, that we spent quite a lot of time talking about small pots. The noble Baroness, Lady Hollis of Heigham, who I am sure would wish to be here, mentioned extensively the position of women. One wanted them to be able to contribute; one wanted to find a cost-effective way; and one did not want the conditions to be unreasonably restrictive. That is all perfectly sensible. Then there were worries about the administrative cost and the practicability.
Perhaps for the purpose of this discussion in Grand Committee, I could mention using the proxy of offshore employment and it would be helpful if the Minister could consider the position of overseas employees. As I understand it, under the law, certainly if you are an EU and probably if you are an EEA national and you are employed here, you would expect to be offered exactly the same terms and rightly so. However, I am concerned that situations might arise where people come within the rubric, make one or two contributions and then maybe their employment shifts. They may go back to their native country because they have come here for a season, or whatever, but they will have entered into our national insurance records and into our private sector pension arrangements. Then they are left with what you might call a super-stranded or a super-small pot, to which they have an entitlement, which is difficult to claim.
This is not a completely nugatory issue. There are surprising numbers of people in this situation. For example, I remember one of the drivers at the Council of Europe, saying to me, “I have worked in London for a bit and I have got to come to London to sort out the two or three years’ of pension entitlement that I have”. That is reasonable enough. We are not arguing against the principle. However, in making the whole matter of automatic enrolment and the related matter of NEST viable, we need to try to minimise the administrative complexity and, at the same time, ensure that those who have earned entitlement should be able to avail themselves of it. It should not all disappear into a kind of bureaucratic black hole, which can be redeemed only by superhuman efforts and personal attendance at a former company’s seat. I notice the noble Baroness, Lady Drake, is nodding at that.
I do not think that either of those two points that I have raised turns us away from the sensible things that these regulations intend. However, it is important that we should think about them. In a way, this has refired my enthusiasm for the fact that we will need a structured review in four or five years’ time—in 2017—to look at whether this is working as we intend. If any of these kinds of difficulties need attention then, they should receive it, if they have not been attended to beforehand.
Lord McKenzie of Luton
My Lords, my noble friend Lady Drake has dealt with the substance of these regulations from our perspective, so I can be brief and I shall ask few questions, which the Minister will doubtless be pleased to hear. We should start by acknowledging again the decision to proceed with an auto-enrolment following the independent review and to support NEST as an integral part of this. I think the Government should be congratulated on taking that forward.
As the Minister will be aware, we have concerns about the scope of some of the easements introduced by the Pensions Act 2011 and by this suite of regulations but the basic architecture remains intact. However, further increases in the personal tax allowance, should these be forthcoming in the Budget, will exclude even more workers from the benefit of auto-enrolment with consequential savings for the Treasury. Obviously, we support offshore workers being brought into scope. This was always the intention. As we have heard, the order treats someone with an offshore employment as,
“a worker ‘who is working or ordinarily works in Great Britain under the worker’s contract’”,
and similar provisions apply to Northern Ireland. However, the provisions do not apply where the employment is in the foreign sector of a cross-boundary petroleum field. Are we dealing here only with cross-boundary fields affecting Norway, or are there any others? I do not know about the Southern Basin or the Irish Sea, or whether there could be an EC country involved, which was the purpose of the question.
Lord De Mauley
My Lords, as is always the case with pension reform, it has been a more than interesting and lively debate. The comments of noble Lords have been insightful and helpful and I thank them for those.
These reforms are designed to transform the culture of saving for retirement in our country. Automatic enrolment is a bold start, but we have also begun looking at how to improve transfers to deal with small pension pots, a point raised by my noble friend Lord Boswell, and the industry is looking at issues around the transparency of charges. Both these issues were debated in your Lordships’ House during the passage of the Pensions Bill. On transfers and small pots, our consultation closes next week and we will publish a response in the summer. The Pensions Regulator has also recently published a document on what a good direct contributions scheme looks like in order to help employers to select an automatic enrolment scheme.
I will now do my best to wade through the large number of important questions asked by noble Lords. I will start with a question raised quite late in the day by the noble Lord, Lord McKenzie, because it sets the tone of the debate. It concerned the 10 per cent of jobholders who might lose out. Employers who are aiming to meet the minimum requirements under the law are unlikely by definition to use self-certification. Those using it will tend to be those seeking to run a scheme that is at least as generous as, and probably more generous than, a statutory minimum scheme for at least 90 per cent of their workers. We are talking about employers who see the provision of pensions as an important benefit for their workers. We want to allow such employers some latitude, or we may end up losing these more generous benefits for many workers. Therefore, because members will be in a comparatively generous scheme, the risk that they will lose out to a significant extent will be small.
The noble Baroness, Lady Drake, asked a lot of pertinent questions. They were fairly technical and I want to make sure that I address the right question in each case, so I may write on a number of them. I will attempt to answer as many of them as I can. She asked about the publication of the assessment certifying that the conditions of the 90 per cent test are still being met. That will be published in 2017. She asked whether, if an individual has a shortfall, the employer will be required to make it up. If the employer has miscertified when he should not have done so, the Pensions Regulator will have powers to end the certificate and require the employer to make up the shortfall.
The noble Baroness asked about waiting periods and re-enrolment. An employer cannot use a waiting period in relation to re-enrolment so the problem of multiple waiting periods will not apply. She asked about the use of self-certification for certain groups of jobholders and suggested that the system could lead to abuse. What I might term “good” employers told us that they needed flexibility in how they applied the certification test. We will monitor the use of certification as part of the evaluation of the reforms. If we find that employers are abusing certification, we will have the power to change the scheme and ultimately repeal it by order if necessary.
The noble Baroness, Lady Drake, and my noble friend Lord Boswell asked about the issue of salary sacrifice. The definition of “earnings” in the Pensions Act 2008 is,
“earnings payable to the person”.
If an individual chooses to sacrifice part of his or her salary, it is no longer “payable” and therefore not part of earnings, so the employer contribution would be payable only on the residual earnings. I will consider the point made by my noble friend Lord Boswell.
The noble Baroness, Lady Drake, asked about employer behaviour and increases in the opt-out rate—effectively, not following the template. The statutory requirement is to provide the prescribed information. There is no statutory restriction on providing additional information, but putting pressure on a worker to opt out is unlawful. Employers will need to be careful that they do not overstep the pressure test, even implicitly, by applying pressure to their workers.
My noble friend Lord German asked about the issue of “ordinarily working” in the context of seafarers. There are several factors a court is likely to consider in deciding where a seafarer is based and therefore whether they are ordinarily working in the United Kingdom. Where they join and leave the ship is just one of them. Other factors can be taken into account, such as the terms of their contracts. Offshore workers are deemed to be ordinarily working in the United Kingdom if they are working on the UK continental shelf or working on the UK part of a cross-boundary field. For offshore workers, the start and end of a journey does not matter.
My noble friend Lord German also asked about powers to cap charges. The Government have taken powers to place restrictions on charges in pension schemes. However, charges are not currently high in default schemes. They are typically in the range of 0.4 to 0.6 per cent. The industry is responding and a code of practice on transparency of charges is planned. We do not propose to regulate without evidence that it is necessary, but we will if there is evidence of a problem.
Baroness Drake
I am not sure when the Minister is going to finish and do not want to miss the opportunity to—
Baroness Drake
I was rather disconcerted when I discovered the implications of the interrelationships between earnings payable and how that applies under the salary substitution. A good employer simply has a shadow basic pay and pays pension contributions on that. I have not had an opportunity to go through whether there is a relevant hook in the schedule information, but the Minister should consider how this issue is brought to the attention of employees as they may simply not be aware of the implications for their pension contribution rights of taking on excessive amounts of salary contribution on a cumulative basis. The Minister did answer my question about employers having to make good the shortfall. I am particularly interested in whether they have to make the shortfall good where that employee has left and how they would do that. I am happy to have that in writing.
Lord De Mauley
My Lords, I understand both the questions. I am grateful for the noble Baroness’s acceptance that I should write because I need to consider the questions carefully before I answer them.
My noble friend Lord Boswell asked about a worker returning overseas with a small pot. The waiting period of three months will allow for workers such as summer workers, who work for a relatively short period, such that the issue does not arise. However, the problem of what I might call stranded pots is a real one. The Minister for Pensions is currently considering this for United Kingdom workers and I will pass my noble friend’s comments about overseas workers on to him so that he can take it into account in his deliberations.
The noble Lord, Lord McKenzie, asked about the automatic enrolment rates for next year. The amounts for the automatic enrolment earnings trigger and the qualifying earnings band are subject to annual review. We have consulted on proposed thresholds for next year and are considering the responses. We aim to publish the response and announce the rates for 2012-13 soon, which is coded language that I think the noble Lord will understand.
The noble Lord also asked about the legal process to access the tribunals for offshore workers. I am going to have to write on that as I am on access to tax relief on personal pensions. He asked about the profile of the 10 per cent who may lose out from certification. I think I have covered that already but should add that we have examined the matter to ensure that our measures are not discriminatory. I suspect that when I am writing afterwards I might discuss that issue in some more detail.
I will, of course, look at the record to see whether there is anything else that has not been addressed. As I said, these provisions put in place necessary pieces of the automatic enrolment framework which will enable employers to comply with the new duties. This will protect existing, good-quality schemes while also providing ongoing protection for job-holders enrolled in them. We are also ensuring that these reforms bring on board individuals who are ordinarily working in the United Kingdom, regardless of whether their work is on land or at sea. I commend these instruments to the Committee.
Automatic Enrolment (Offshore Employment) Order 2012
Lord De Mauley
That the Grand Committee do report to the House that it has considered the Automatic Enrolment (Offshore Employment) Order 2012.
Relevant document: 41st Report from the Joint Committee on Statutory Instruments
Lord De Mauley
On behalf of my noble friend Lord Freud, I beg to move that the Grand Committee do consider the draft Automatic Enrolment (Offshore Employment) Order 2012, to which I have already spoken.
House of Lords
Health and Social Care Bill
(12 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
13:54 - Division on Amendment 243 - Ayes: 180 / Noes: 212 - Amendment 243 disagreed.
Baroness Emerton
“Power to regulate health care support workers in England
(1) The Nursing and Midwifery Order 2001 (S.I. 2002/253) shall be amended to provide that all health care support workers in England shall be regulated in accordance with the terms of that order.
(2) For the purposes of subsection (1), a health care support worker shall be an individual whose work is routinely delegated to them by a registered nurse or midwife or has a qualification in health and social care at level one (or higher) of the Qualifications and Credit Framework, in England.”
Baroness Emerton
My Lords, I rise to speak to Amendment 240, tabled in my name, which relates to the mandatory training and statutory regulation of healthcare support workers. Before so doing, I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Northover, for the time that they have given me in addressing this issue and for their very helpful responses.
The Bill is concerned with reorganising health service structures to improve the quality and safety of care and to improve the patient experience, building on the work of the noble Lord, Lord Darzi, in the last Government. The emphasis throughout the Bill is the role to be taken in the commissioning of services by general practitioners, but little attention has been paid to the other professions. Here I declare my interests as a retired nurse not on the Nursing and Midwifery Council register, a former tutor, manager and chair of the regulatory body for nurses, midwives and health visitors. I am also a lay member of the GMC, a former chairman of an NHS trust and a former trustee of the Kent Community Housing Trust.
I remind the House that nursing and midwifery form the largest individual professions in the NHS, currently with in excess of 600,000 names on the register. Moreover, some 400,000 members of the Royal College of Nursing support this amendment. It is concerned with the safe delivery of care to patients whether they are in hospital, in the community or within the NHS, local authority or independent sectors, along with nursing homes and charities.
I am grateful to all noble Lords who took part in the debates in Committee on the two amendments that I tabled then, the first of which asked the Government to produce guidelines on the ratios of registered to unregistered staff. I withdrew that amendment on the basis that further work would take place examining the research evidence. I am pleased to say that Ministers have taken this seriously and work is now in hand on the matter. I mention this as the ratio of nurses to unregistered staff is important in the points to which I now wish to draw the attention of noble Lords in making the case for healthcare support workers to be regulated against agreed standards and for this to be included in the Bill.
If this amendment is accepted, it would affect healthcare support workers—those who are limited to working under the direction of a registered nurse or midwife giving direct clinical care in hospitals, community settings and care homes. They would have accepted professional boundaries and would be entitled to practise, as set out on a list. There would be control of admission to and removal from the register. Professional standards of practice would be established, ensuring clarity for patients, the public and professionals, and individuals would be held accountable.
In a letter to me, the noble Earl said that the department is “unconvinced” that the regulation of support workers is necessary and that the Government’s policy is to set up a voluntary register. I am hoping to convince the Minister that having healthcare support workers subject to a voluntary register would not work satisfactorily in terms of protecting patients in the delivery of safe care. I pose two brief questions. First, what is the evidence to demonstrate that unsafe care is currently being delivered by healthcare support workers and the reasons for this? Secondly, is there evidence that will satisfy patients, the public and registered practitioners that the proposed voluntary register will ensure the safe delivery of care?
While a very large number of healthcare support workers deliver excellent care, most of them having received some basic training under adequate supervision and having gained experience, there is evidence that things can and do go dreadfully wrong, particularly where there is no appropriate training and poor supervision. Healthcare support workers are themselves calling for mandatory training and regulation.
We have only to refer to the most recent inquiries demonstrating unsatisfactory levels of care in Mid Staffordshire NHS Foundation Trust. The first report was very critical of healthcare support workers and the change in the staffing ratio of registered nurses to support workers. The second public inquiry is reporting on the confusion about supervision—not knowing who was in charge of care delivery. At Winterbourne View, a hospital delivering care to those with learning difficulties, charges were brought against support workers and guilty pleas have been made. The report published by the Local Government Ombudsman cited 10 instances of unacceptable care for the elderly. Moreover, prior to this there were inquiries at Maidstone and Tunbridge Wells NHS Trust and at Stoke Mandeville Hospital. While the failures in delivery of care were not due solely to the poor performance of healthcare support workers, that was found to be very largely a contributory cause. Failure in delivery of safe service care was due in the main to there being insufficient registered nurses to supervise the healthcare support workers and a lack of a set of standards for care training.
A survey of 2,500 support workers carried out by the Royal College of Nursing between the Committee and Report stages of this Bill demonstrated that tasks currently being undertaken by healthcare support workers call into question the safety of patient care. The list totals 56 examples, but I will illustrate just a few. Healthcare support workers were left in charge of wards and nursing homes, administration of drugs, including insulin and controlled drugs, the removal of wound drains and central lines, bladder scanning and washouts, catheterisations, especially in very ill patients, assessing patients pre-operatively and pre-chemotherapy treatment, changing tracheotomy tubes, inserting nasogastric tubes, giving feeds through those tubes, and suturing and plastering. These are just a few.
As recently as last Friday, I was chairing a national conference and was approached by a very senior nurse who told me of a family member, a young person of 17, who had applied for a job as a healthcare support worker. She received two days’ training. On the first day on the ward, she was allocated to do a bed bath. She was accompanied by another healthcare support worker to supervise her. She washed the patient’s face and hands and proceeded to complete the bath, but was told by the other healthcare assistant, “I only do hands and face here. We don’t bother to do anything else”. When questioned about the patient’s back and pressure areas, she was again told, “We do not do that here”. Very many of our workers are in that situation, both in the community and in hospitals.
Lord Newton of Braintree
My Lords, I wonder if I may be indulged again by the House by speaking from an unusual position. I speak against a background—dare I say to my noble friends on the Front Bench—that I have been suitably chastened on the way into the House by being told that yesterday was the first day on which Tory rebels outnumbered Liberal Democrat rebels. There was only one rebel: it was me. Here I stand trembling, yet again.
The spirit in which I approach this is slightly interrogative. I was not able to hear the earlier debate that the noble Baroness triggered, but I am puzzled about the Government’s position on this. I want to ask a few questions. I have no problem at all with tasks being delegated down to the appropriate level. I became Minister of Health 25 years ago, on the day that my noble friend Lady Cumberlege’s report into nurse prescribing was published. Ever since, I have thought that there were a lot of things being done on one level that could sensibly be done at another. I have no problem with the general principle of using healthcare support workers for things that might have been done by others in the past.
However, when it comes to things that are clinical, it is important that people should be trained and properly authorised and registered. That is the key point. Anyone who has been in hospital, as I have on a number of occasions in the past two or three years, will recognise that it is not always easy to work out who does what. I have no complaints about any of the people who looked after me, but it is quite clear that they are at different levels and that one would want to be confident that they all knew what they were doing. The noble Baroness referred to the importance of some of the work that healthcare workers do and we all know that one mistake in medication could have fatal consequences, for example. She referred to the various reports, which I will not rehearse, and she made a number of points that we ought at least to listen to with care.
However, as I said to the noble Baroness in a private discussion, I was a bit sceptical about this because the numbers are potentially huge and we do not want another example of a body being asked to take on more than it can do in too short a time. To some extent, I think that she has sought to meet that in her amendment by narrowing the definition of healthcare support workers to those who are in the clinical area, if I might use that shorthand. That is welcome. But I still think that there may be some problem with the scale of the task if it is imposed at one go. The noble Baroness is aware of my worries about that.
I am also less convinced that a voluntary register could not have a significant effect, with some provisos. First, we cannot have competing voluntary registers with people free to choose the one that they think is easiest. If there is to be a voluntary register, it must be officially sanctioned—I would be grateful for comments on that. If you have one, it might have a significant effect. It would be a brave health trust, once the system was established, that took on healthcare workers who were not registered because of the risk that would arise if something went wrong and the criticism that would ensue. So it might have an effect and I think that we should take account of that.
Even if the Government want a voluntary register and think that it could work, there is a parallel in the field of ombudsmen, which I know something about. That would be to have in the Bill a reserve power to take compulsory registration powers if that proves to be necessary. I am not sure whether that is there or not, but a fallback position might be to have the power to act if the Government’s preferred solution does not work and I would personally press that as a possibility to the Minister.
Baroness Wall of New Barnet
My Lords, first, I apologise for missing the first five minutes of the noble Baroness, Lady Emerson, moving the amendment. With the House’s permission, I shall briefly speak to the issues that she raised, to which I have referred in the House on many occasions, as many noble Lords and certainly the Minister will be aware.
I understand the arguments that have been made by my noble friend, but healthcare assistants—and they are mostly in clinical areas—have a strong desire to be recognised and accredited for the work that they do. They take a pride in what they do, as the noble Baroness, Lady Emerton, said, but patients do not understand what they do and therefore cannot have the discussion with them that says, “You are qualified, so I have confidence in you”.
I have had this discussion with the Minister on a number of occasions, and I am not sure why there is hesitancy in this area. I do not think there is an issue for trusts in being able to get healthcare workers who are qualified. We have a sector skills council for health, most of whose work is encouraging healthcare assistants and other people who work in hospitals to reach levels 1 and 2, so there is an equivalent provider out there that can do that, working with the hospitals.
The important thing is that the patient understands exactly what the healthcare worker does. The amendment of the noble Baroness, Lady Emerton, describes a healthcare support worker as an individual whose work is “routinely delegated to them”. That is crucial. It is not someone who does something off their own bat. My hospital employs many hundreds of healthcare workers, most of whom do a very good job. It is very important that the noble Earl knows that they are very conscientious when working with other practitioners, clinical or otherwise, who do not do what they are supposed to do. We have many healthcare workers who check that consultants’ arms are bare to the elbow. They are very conscientious and they want recognition that they are people who care about patients. They want to know that the value that they bring is recognised. It is no threat to the health service; speaking as a provider chair, I can say that it is a total advantage.
Baroness Masham of Ilton
My Lords, we are once more discussing the important matter of the power to regulate healthcare support workers in England. I am pleased to have added my name to the amendment. I spoke about this at Second Reading and in Committee. I agree with the Royal College of Nursing that mandatory regulation and registration of these support workers is important in order to safeguard patients’ safety and to ensure standardised training so that there is a skilled and suitable workforce.
I have yet to meet anyone who understands the situation who disagrees about this, except some members of the Government. Nurses who have been struck off their register can then work as care assistants—again, putting patients at risk. The Government are considering a voluntary register, but this will not cover the undesirable people who get jobs as care assistants because they cannot get employment elsewhere. Clinical physiologists have found that self-regulation, which they have had since 2001, is not as effective as statutory regulation. Should we not learn from this?
We know of the tragic cases at the Mid Staffordshire NHS Foundation Trust, where the deaths of hundreds of patients were associated with bad care. It makes one wonder how Mid Staffs was approved for foundation status. We also know of the horrific bullying by care assistants at Winterbourne View care home at Bristol. Since Committee, we have heard of Malcolm Cramp, who was convicted of seven counts of ill treatment and sent to prison for abusing dementia patients at Brockshill Woodlands, a care home in Leicestershire. In another case, Sean Abbott, a caseworker, was jailed for a year for assaulting vulnerable residents at St Michael’s View care home in South Shields. Daphne Joseph, another person at that home, was given a nine-month suspended sentence when she admitted the ill treatment and neglect of a patient, who died. The judge at Newcastle said that she had not had enough training. He also said that she was operating,
“in a regime which was inadequate and not fit for purpose and in which there were too many patients, not enough planning, and too few staff, let alone trained staff”.
This concerning situation is happening up and down the country. Is it not time that better safeguards for patient safety were put in place? Statutory regulation and the registration of healthcare workers could help. Many of them are now undertaking procedures that only doctors and nurses did but they have little training to do it.
Lord Turnberg
My name is attached to this amendment, which I believe is an extremely important one. I find myself in the somewhat unusual—indeed, unique—position of, for the first time, not being able to agree with the noble Lord, Lord Newton. We have had many debates in this Chamber in which the standards of care in our hospitals and nursing homes have been examined and, in too many places, found wanting. We have had many other reports showing the same thing. Many institutions and many care workers are outstanding but, as we know, there are too many places where patients are neglected and their basic needs not addressed.
Of course, all these failures cannot be put at the door of healthcare support workers. Where they occur, these failures are systemic and go right across the hospitals and homes. The employers, doctors, nurses and everyone in the institution should bear responsibility. However, all too often it is at the level of the healthcare support worker—who provides the basic care of feeding, washing, toileting and a host of other responsibilities and is often in closest contact with the patient—that we hear complaints from patients and their families. Healthcare support workers are at the end of the line and are too often left to themselves.
I fear that when we lost our SENs—our state-enrolled nurses, who did not need a university degree—in 2000, we lost a group of professionals who were trained and educated to do their job. If we are to regain the sense of professionalism and pride that my noble friend talked about that full registration would bring to a cohort of well trained and regulated young men and women, then we must move to full and proper registration. I do not believe that a voluntary register gives that degree of control. It certainly does not give sufficient recognition to the importance of the job. I hope that the Minister will agree.
Lord MacKenzie of Culkein
My Lords, I apologise to the House for not being here at the start of this amendment. Unfortunately, I had to seek the help of the health service this morning for a touch of bronchitis. I apologise particularly to the noble Baroness, Lady Emerton, for not being here on time.
I strongly support the amendment. I have spoken on this matter on each occasion that the call for statutory regulation has been debated in this Bill. I also referred to this issue in the debate on front-line nursing which we held last December.
The Government argue that voluntary registration is sufficient unto the day. I beg to differ strongly. As a nurse, I cannot agree that the present state of affairs should continue, and I do not think that I am a lone voice. The health committee in another place, the Nursing and Midwifery Council and all the staff organisations representing healthcare assistants all support statutory regulation.
History has a habit of repeating itself—wheels turn full circle. In the 1930s, financial pressures brought about huge increases in the numbers of support workers, or assistant nurses, as they were called. There was no provision then for regulation. It took the work of two committees—the Athlone Committee in 1937 and the Horder Committee in the early years of World War II —to lead to legislation which allowed for registered and regulated status for assistant nurses. We had state-enrolled assistant nurses as a consequence, and I think that it was in the early 1960s that the word “assistant” was removed from the title.
By the 1980s, the role of nurses on the first and second parts of the register was blurred. As a consequence, and as part of the move away from hospital-based training into higher education, the enrolled nurse training for first-level nurses was discontinued. It was always a mistake to leave that vacuum when the enrolled nurse training ended—a matter referred to by my noble friend Lord Turnberg.
The outcome is entirely predictable. That wheel has, indeed, turned full circle. We have had, again, huge increases in support staff; we have, again, financial stringency; and, as in the 1930s, there are now campaigns for proper regulation and training for those who assist nurses. However, the roles have been blurred this time not between the enrolled nurse and the registered nurse but between the healthcare assistant and the registered nurse. That is the very issue that led to the ending of enrolled nurse training, but this time there is no fall-back—there is no fail-safe for the patient—because there is no standardised training; there is no legal obligation in the Bill to require standardised quality training; and there is no obligation for registration, regulation, accountability and, not least, a code of conduct for support staff. The amendment in the name of the noble Baroness, Lady Emerton, will do much to resolve that issue. Most importantly, it is about patient safety. The amendment is specific—it is not about all support workers working in the hospital service or care homes; it is about those staff to whom are delegated what are, by any standards, nursing duties of registered nurses. It is not good enough for the Government to keep saying that voluntary registration is sufficient and that everything else is a matter for employers.
That is the present situation and it is far from satisfactory. I suggest that it will get worse in the future. We all know that the ratios between nurses and healthcare support workers are often worse than the generally accepted 60:40. The financial squeeze will certainly mean further changes—and not for the better. Voluntary registration does not work. For a long time, for example, clinical physiologists have been trying to make the case to the Government that voluntary registration has failed, and the coalition Government have turned their face. The leaving-it-to-the-employer approach will leave the patient at risk, and neither the registered nurse nor the healthcare support worker is protected in these situations if something goes wrong. Increasingly, the employer will be exposed as well, as there may well be more cases such as that of Mid Staffordshire as a consequence of financial pressures and getting skill mixes wrong—not least when these decisions are made by human resources people with little or no proper nursing input.
In my submission, the patients are not always clear about who is providing care for them. My recent six months as a patient in two teaching hospitals confirmed that—virtually everyone in a uniform was a nurse to most patients. That is not surprising. Healthcare assistants routinely carry out observation rounds; they carry out clinical procedures such as cannulation and catheterisation; they give injections; and they undertake venapuncture to take blood. That is just to name some of the procedures that they might carry out. Patients would be very surprised if they were told that the staff carrying out these clinical procedures were neither regulated nor registered.
Regulation and standardised quality of training does not, in itself, guarantee that matters will not sometimes go wrong. That can—and does—happen in all regulated professions. However, statutory regulation and registration is the best way forward to give better surety to patient safety. I strongly support these amendments.
Baroness Young of Old Scone
My Lords, I support the amendment of the noble Baroness, Lady Emerton, from two perspectives. One is as the chief executive of Diabetes UK, where we increasingly hear stories from patients about the care that they receive in hospitals. One in 15 of all patients in hospitals at the moment has diabetes. They may not be there as a result of their diabetes but they have it—it is, of course, a serious condition. There is strong evidence that poor care in hospitals exacerbates that condition rather than improves it. I shall just mention two issues: people lose control of their own insulin and glucose management and they develop pressure problems—particularly foot and leg problems, which can dramatically escalate and lead to amputation.
Patients increasingly tell us that one of the major problems that they face in receiving care as an in-patient is that readings, checks and procedures are undertaken by healthcare support workers who are insufficiently trained and knowledgeable to alert qualified staff to take action. Just yesterday, the All-Party Parliamentary Group on Diabetes heard the distressing story of a gentleman who had been admitted to hospital and who went into a hypo through insufficient management of his glucose levels as he lay in a hospital bed. The healthcare support worker said, “I thought you were a bit strange when I gave you your lunch”. If people with diabetes “go a bit strange”, any qualified nurse will know instinctively that this is serious and needs to be dealt with. It is unforgivable that patients in a healthcare establishment have worse control over their diabetes than when they are in their own homes. I am not laying that at the feet of healthcare support workers entirely but, increasingly, the care given to people in beds, day in and day out, is given by people who need to be accredited and qualified.
The second perspective from which I want to speak is as the ill-fated chairman of the Care Quality Commission who set up the regulator for health and social care. I confess that one of my great regrets, when I resigned from that post, was not to be able to take forward work that I saw as absolutely vital. It had become abundantly clear to me, from the regulatory work in healthcare, that the key to quality was very dependent on the quality of nursing care. It is absolutely central to quality as a whole for people in healthcare. What has also become clear to me—and the evidence is borne out in many cases of poor care—is that it is not published standards or agreed levels of care that are important but the knowledge, education and skill of the nurses and healthcare support workers who are providing that care. It is about how they feel about the job and about their commitment to the job—not just seeing it as another job but seeing that improving things for patients is at the centre of what they do.
Had I stayed as chairman of the Care Quality Commission, I was intending—and I had already begun discussions with the Royal College of Nursing and others —to mount a major campaign to ensure that the nursing process, and with it, at its heart, the healthcare support worker, was improved and that formal registration and regulation of healthcare support workers was introduced. The Minister may well say that these improvements can be tackled through a voluntary register but, from my experience, I do not believe that this is the case. This is so important that a formal statutory register is absolutely required.
Baroness Hollins
My Lords, I support the amendment. I note that one of the reasons given for not considering statutory regulation for this group is that there is a very high turnover of staff in this grade. This seems to me to be a symptom of an unsatisfactory situation and perhaps points to the poor job satisfaction and lack of prospects for healthcare workers. My noble friend has pointed to the problems with skill mix. I think that she was really talking about skill mix across the whole range of mental and physical healthcare settings and not just physical healthcare. Within that, she would have included people with learning disabilities.
It seems to me that there must be some minimum requirements for training and supervision. I know that the Government suggest that it is the responsibility of the employer, and perhaps also of the commissioner, to ensure that the service which is provided reaches minimum standards. Perhaps that requires that, in order for commissioners to contract with an employer, a service has to have been appropriately accredited. A service which has been accredited has of course been accredited for the whole service, not just for the work of individual staff, who are subject to their own regulatory authority.
This morning, I revisited the Royal College of Psychiatrists’ accreditation standards for adult in-patient wards for people with learning disabilities—I should remind noble Lords that I am a past president of the Royal College of Psychiatrists and a psychiatrist myself. The college’s general standards very helpfully include attending to recruitment and retention of staff, training, supervision, management of complaints and so on. It is helpful to think about the relationship between the necessary accreditation of services and the need to attend to the training and aspirations of all those staff who work in such services: retention and job satisfaction are key to this.
Baroness Pitkeathley
My Lords, I join with others in paying tribute to the noble Baroness, Lady Emerton, for her tenacity and commitment in keeping the issue of healthcare assistants before your Lordships’ House. She may not be my noble friend in the political sense, but she has been my friend in the professional sense for many years.
I am sorry, therefore, to disagree with her on this particular issue. Indeed, it seems that I am a lone voice disagreeing with her. I certainly want to emphasise that I do not disagree about the problem with regard to healthcare assistants which has been so thoroughly and persuasively set out by her and other noble Lords. But the Council for Healthcare Regulatory Excellence, the organisation which I chair, disagrees with her, as she knows, about statutory regulation being the solution to these problems. The CHRE has had the opportunity of speaking to many of your Lordships in two seminars organised by the Minister, so I do not need to take up time here repeating the arguments. I will say only that mechanisms already exist to deal with the difficulties which your Lordships have set out. These include ensuring that those supervising healthcare assistants take their supervisory responsibilities seriously. The Nursing and Midwifery Council is providing strong direction on this with its codes. Employers are required to ensure safe systems of work, which include giving support to healthcare professionals in delegating and supervising effectively. There is also the vetting and barring scheme, whose aim is to prevent unsuitable people from entering or remaining in the workforce.
Add to this the expense and relative slowness of statutory regulation and it seems to add up to a case showing that the increased public protection that we are all seeking can be achieved by applying existing mechanisms more firmly. We should consider other ways of making this large group of workers, low paid as they are and with a 30 per cent turnover, as we have been reminded every year, feel more acknowledged and valued. There may well be a role for a professional association with a voluntary register, but principally we must use existing processes effectively before we embark on statutory regulation.
With regard to voluntary registers, which have been mentioned so much this morning, or accredited registers, as proposed by the Bill, much work has already been done by the CHRE. We are using the term “assured registration” to distinguish it from the old notion of voluntary registers and to describe the process of organisations assuring the individuals on their register and then the CHRE accrediting the organisations and their registers, thus creating accredited registers. I remind your Lordships that the whole purpose of such a scheme is to enhance consumer protection. The standards to be met by organisations which hold accredited voluntary registers will include standards of competence, education and training, registration of complaints and information provision. I certainly do not want to argue that this is the same as statutory regulation, but for many professions it offers further safeguards for patients and public, and that is what we are all seeking.
Lord Kakkar
My Lords, my noble friend Lady Emerton moves a very important amendment that comes to the very heart of this Bill. The purpose of this Health and Social Care Bill is to ensure ultimately that quality is driven throughout the healthcare system and that standards are driven to the very highest levels. It seems counterintuitive that such an important group of healthcare professionals as healthcare support workers is not subject to any mandatory training or mandatory continuing professional development or, indeed, any form of statutory regulation. I suspect that many of our fellow citizens would find that a very peculiar situation, which they would not automatically recognise, when going into the hospital environment.
I would like to ask the Minister two questions, specifically with regard to proposals for ensuring strong voluntary registration of this particular group and members of other disciplines who are responsible for the provision of healthcare. The first relates to the role that the Secretary of State might play with regard to standing rules and providing guidance to commissioning groups on the action they should take and the requirements they should make of qualified providers. Will it be the case that commissioners will be in a position to demand of a qualified provider that all of their healthcare staff, be it doctors, nurses, or other healthcare professionals, are members of some form of registered regulatory scheme, be it a regulatory scheme for certain healthcare professionals or voluntary schemes for others? Will it therefore be possible for clinical commissioning groups in the future to refuse to commission from a potential qualified provider if that provider was unable to demonstrate that all the staff it employed were registered appropriately?
My second concern relates to a plurality of registers for a single discipline of healthcare worker. That seems counterintuitive: surely, if there is going to be a voluntary register for healthcare support workers, there should be a single register, not multiple ones, because multiple registers would provide less confidence to the general public. The general public should know that there is a single regulatory body and that that body has responsibilities with regard to setting certain standards, with regard to ensuring that there is appropriate training and with regard to the possibility of receiving complaints and disbarring individuals from working in that professional area.
Baroness Finlay of Llandaff
My Lords, I agree with those noble Lords who have said that this is a critical amendment. I do not understand how more than one register will ensure a uniform standard across the whole of the NHS. There is a real problem at the moment with healthcare assistants being used as substitutes, rather than having “delegated” tasks, as in the wording of this amendment.
I am concerned about relying overly on the employers themselves. We have seen in the nursing home sector that this has failed. Where there has been substandard care, nursing homes have not got rid of those staff about whom they have had questions and those who have been commissioning services from those areas have not been able even to close down nursing homes because they often have not known where else they could move the residents of that area. In the mainstream hospital sector, it is down to an individual nurse to decide what she delegates to a healthcare assistant. The beauty of having a statutory register is that there will be clear expectations of what healthcare assistants can and cannot do and the level to which they should be trained, with clarity of roles and values, which I believe will also increase their own self esteem, and their own sense of occasional involvement in their role in clinical care. It has been suggested that it would be in the interests of unions to have such a statutory register. I fear that there has even been confusion in the minds of some people between the role of a trade union and the role of a regulatory body. It will be very important that a register is completely separate to any type of union activity. When the Minister comes to answer, I would be grateful if he could explain how the standards to be set by a voluntary registration process will be overseen and monitored, and what levers the Government would have to improve and extend the criteria required by a voluntary register of those who are registered on it, in order to increase standards.
Lord Patel
My Lords, I have added my name to this amendment, which has been moved by my noble friend Lady Emerton. The case for statutory registration, which I strongly support, has been made in a tempered way by my noble friend. Perhaps I may first try to address the lone voice of the noble Baroness, Lady Pitkeathley, because she must be concerned about being the lone voice. She said that we should allow the current regulations and procedures to take effect before making a decision. Currently, we have no procedures. There are proposals to put procedures in place both for training and possibly for registration, but we have nothing apart from that. I went to the seminars, although with respect I have to say that they were not very helpful. There are two points I want to make as a result.
When asked about the question of voluntary versus statutory registration, the response of the officers of the Council for Healthcare Regulatory Excellence—I wrote it down at the time—was that it is based on the “likely risks”; that is, if the risk is high there must be statutory registration, but if the risk is low it could be voluntary registration. Ample evidence has been provided by two former nurses in this House, my noble friend Lady Emerton and the noble Lord, Lord MacKenzie of Culkein, to show that we are talking about a high-risk situation. The second comment was that it was not within the power of the CHRE to decide whether registration should be statutory or voluntary. Of course it can take a view, and if that view is based on evidence, it would be taken seriously. However, the evidence presented by all the speakers in today’s debate is quite contrary. On both of those counts, the council’s arguments are weakened. I shall leave it at that.
I accept that we are talking about a huge workforce, one of 450,000 or perhaps more. It could be higher than that if healthcare support workers are employed in the community, in care homes and institutions for mental illness and care. So while I welcome the Government’s plans to introduce new minimum standards of training for healthcare support workers, they do not go far enough to ensure professional competence. While there would be an expectation that employers will both provide training and support a code of conduct, there will be no legal obligation to do so. I may be wrong and no doubt I will be corrected, but I believe that a mandatory, standardised approach to both training and regulation is essential in order to maximise public protection.
The noble Lord, Lord MacKenzie of Culkein, referred to the long list of activities in which healthcare support workers now engage. It is quite different from what I was used to. Nursing auxiliaries would undertake essential nursing care and sometimes domestic duties. Those support roles have now been extended, to the point of what the noble Lord, Lord MacKenzie, described as cannulation and catheterisation. As well as the issues of public safety and protection referred to by my noble friend Lady Emerton, there is a lack of clarification on areas of responsibility, delegation and accountability. Evidence shows that the responsibilities and tasks given to healthcare support workers vary across the country, and even within the same setting—for example, between different wards in the same hospital. In addition, the relationship between individual registered nurses and the healthcare support workers working alongside them can sometimes determine what duties they are asked to perform rather than recognition of their education, training, experience and competence. This variation across and within settings has led to a lack of clarity about roles and responsibilities.
Regulation and standardised training would give healthcare support workers much more clearly defined roles, and I agree with the Government’s intentions on this. This would help to ensure that support workers are only asked to perform tasks that are suitable for their competencies and would provide them with a code of conduct. They would be protected in circumstances where they are asked to undertake tasks for which they are not competent or about which they are unsure. I support that and I am glad that the Government, together with the professional organisations, are beginning to set out their intentions. No doubt the Minister will comment further on that.
I turn now to the issue of voluntary versus statutory registration. I believe that voluntary registration over the long term will lead to fundamental weaknesses. Those individuals and employers who most need to be regulated may not sign up to a voluntary register or could abuse the flexibility of its voluntary status. Through the proposed reforms in this Bill, an increased number of service providers is expected, and that might confuse the situation even more. There will be greater mobility in the workforce which could create the possibility for professionals to avoid reprimand following poor conduct by seeking employment with a different employer. Over the long term, voluntary registration will allow any organisation, employer, representative body or third party to establish a register. Some of those registers may well be successful and could, for example, achieve a “kitemark” standard. The noble Baroness, Lady Pitkeathley, referred to “assured registration”, but I do not know what that is. Is it a halfway house to statutory registration or is it half way down the road to inadequate voluntary registration? I presume that it would be a halfway house to statutory registration, which is a good idea.
There would also be the possibility of an individual gaining access to another voluntary register following their expulsion from one. Without national standards, it is not clear what the registers will take into account when accrediting an individual. These issues engender a lack of consistency. One single statutory register with clear terms of reference would not present such a problem. A mandatory register would also provide a single point of contact for potential employers when checking the employability of an individual, and differing levels and standards of registers would not exist.
I recognise, as did my noble friend Lady Emerton, that we are talking about the registration of a large workforce, and that prior to doing so training has to be provided for that large workforce. We need to consider the direction of travel: where we are, where we want to be and how we are going to achieve that. It is an important issue and I look forward to the Minister’s comments.
Lord Walton of Detchant
My Lords, I shall be extremely brief in supporting what my noble friend Lord Patel has said. I have listened with care to the debate. This is a huge workforce in which at the present time the standards of professional behaviour and competence are immensely variable, where the standard of education among the individuals performing these tasks is also extremely variable, and where it is clear that an improvement in standards not only of care but of responsibility and training is absolutely vital. The question we have to ask is how this can best be achieved.
I found the arguments of the noble Baroness, Lady Pitkeathley, very persuasive, and of course I understand the stance she is taking as the chairman of the Council for Healthcare Regulatory Excellence. It is soon to have its name changed, but a rose by any other name will smell as sweet. It will have responsibility for accrediting the voluntary registration of a large number of individuals working in the National Health Service. She is persuaded that a voluntary register for these healthcare support workers would be adequate and satisfactory. However, as my noble friend Lord Patel has asked, what will prevent those individuals who are responsible for or who own care homes taking on board and employing people who are not voluntarily registered? This is a crucial issue, as indeed is the point —it has not been effectively clarified to my satisfaction—about what sanctions may be applied to people who do not fulfil all the eligibility criteria that are to be established for that voluntary register. Having said that the noble Baroness, Lady Pitkeathley, was very persuasive, I am afraid that I find my noble friend Lady Emerton infinitely more persuasive.
For that reason, I have not the slightest doubt that I strongly support the amendment. It is not suggesting that a new register and national body for care assistants or a support workers’ national council needs to be established. The virtue of the amendment is that individual healthcare support workers in England would be regulated in accordance with the terms of the Nursing and Midwifery Order 2001, which is already a statutory order. It seems to be a neat solution to an extremely difficult problem. For that reason, I strongly support the amendment.
Baroness Howarth of Breckland
My Lords, I had not intended to speak in this debate, but I want to strike what might be a slightly discordant note at this point in the proceedings. I have a question for the noble Baroness, Lady Emerton, and the noble Earl in relation to clarification.
I will speak later in relation to social workers and that bit of social care which we seem to have forgotten. What has concerned me most in this debate is the total confusion between social care workers and healthcare workers. What really concerns me about the amendment is that it appears to be the health professional who must give instruction to those working in a variety of establishments. I declare an interest as someone who is responsible as a trustee for a large number of elderly and disability care homes. In some of those places, someone qualified in social care and not healthcare is in charge of the establishment. They are therefore responsible for ensuring that the programmes of care are designated with some healthcare professionals, because in nursing homes you need both working together.
I want to be absolutely sure that we do not arrange more confusion, which we will be discussing later today in relation to social care, and undermine even further those people who are looking after the real day-to-day care, not the medical health needs. You need people looking after medical health needs in these establishments, but you also need to worry about stimulation, relatives visiting, the psychological approach to the people in the home, how they will get to hospital and helping the hospital to understand what people with disabilities are saying. All of those things are crucial and need equal registration and care.
I am attracted to the voluntary register because it means that we can look at all these people who are working in the field who have their own professional positions but are different. I would like some clarification and for the House to understand that there is not just a medical group of people caring but a whole tranche of people out there in establishments and in the community looking after those needs, which I am sure noble Lords, if they were in that position, would also want to have looked after.
Lord Hunt of Kings Heath
My Lords, this has been a good debate and I, too, congratulate the noble Baroness, Lady Emerton, on her initiative in bringing forward her amendment. I should remind the House that I chair an NHS foundation trust and, like my noble friend Lady Wall, we employ many hundreds of healthcare support workers. I agree with everything my noble friend said.
The noble Baroness, Lady Howarth, raised an important point. We are coming on to the issue of social care regulation and the House will know that I am very concerned about the transfer of social care regulation to what is essentially a health body. The noble Baroness, Lady Emerton, will want to respond, but it seems to me that what she has tried to do is to allow the House to have a specific debate on healthcare support workers. The amendment is very much a statement of principle and we will come on to social care workers in a later debate.
Lord Mackay of Clashfern
Before the noble Lord sits down, perhaps I may raise two points with him from his great experience of the health service. First, is it appropriate for the fundamental provision to be an amendment to a statutory order rather than for it to be done through primary legislation? Secondly, on delegation, the amendment states that,
“a health care support worker shall be an individual whose work is routinely delegated to them by a registered nurse or midwife”.
Could not a healthcare support worker have an independent assignment from the employer? In other words, it would be not be delegation from a registered nurse but direct employment on that basis. I would like help on that if possible.
Lord Hunt of Kings Heath
My Lords, when I was in government, I was always very wary of interventions from the noble and learned Lord when he required help on an answer that I had given. I should probably let the noble Baroness, Lady Emerton, answer for herself, but perhaps I may make two points. First, the noble Baroness has been very inventive in using this Bill as a way of raising these concerns. As a number of clauses, to which we shall come shortly, relate to regulation, her amendment is quite in scope. Secondly, this is very much a debate on the principle. I have no doubt that, if the noble Baroness were to press the amendment to a vote and was successful, the noble Earl, Lord Howe, would come back at Third Reading or in the other place with a tidying-up amendment which dealt with the issues that the noble and learned Lord has raised, respecting the intent of the House but ensuring that the statute was as tight as it could be. It is probably not for me to answer for the noble Baroness.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been another excellent debate about a critical issue: how we ensure that the staff who deliver NHS care have the training, support and appropriate regulation to enable them to do so. I pay tribute to the noble Baroness, Lady Emerton, for her advocacy of this cause, which is of course of central importance.
This amendment would require the Nursing and Midwifery Council to regulate healthcare support workers on a mandatory basis. I hope that I do not need to convince the noble Baroness that we have given this considerable thought. The Government’s view, like that of the noble Baroness, Lady Pitkeathley, is that compulsory statutory regulation is not the only way to achieve high-quality care. It is no substitute for good leadership at every level and the proper management of services, which is perhaps the most relevant issue in the context of the examples of poor care cited by the noble Baroness, Lady Young, to whom I listened with great attention.
Regulation can respond to concerns about the practice of professionals when they arise, but the regulator cannot be in the room all the time. On the other hand, employers are often in a position to act early, when concerns first arise and before harm occurs.
Let us remember that there are existing tiers of regulation that protect service users, particularly the vetting and barring scheme, through which unsuitable workers can be barred from working with vulnerable adults and children. I say to the noble Baroness, Lady Masham, in particular, that that includes where regulated nurses are struck off. If there are concerns that they may pose a risk, they should be referred to the Independent Safeguarding Authority. The Care Quality Commission also enforces standards for providers of health and social care services.
There is no difference between the noble Baroness, Lady Emerton, and the Government on the central issue. We recognise the need to drive up standards for support workers and to facilitate employers appropriately to employ, delegate to and supervise health and social care support workers. To this end, we have commissioned Skills for Health and Skills for Care to work with professional stakeholders on the development of a code of conduct and minimum induction and training standards for healthcare support workers and adult social care workers in England. The noble Baroness has expressed her doubts about that decision, but I noticed with interest that, in its recent addendum to its response the House of Commons Health Select Committee, the NMC stated clearly that it supports the Government’s announcement that Skills for Health and Skills for Care have been commissioned to do this work and to develop a delegation standard for nurses and midwives that will provide an effective framework for public protection.
We confidently expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, in taking this forward. There are registered nurses on the proposed membership of the steering group for the work that we have commissioned from Skills for Health and Skills for Care, and I am happy to suggest in response to the noble Baroness that a university lecturer should also be included. More generally, we would expect a broad programme of engagement as part of the work to take this forward. We expect the standards to be agreed ahead of the establishment of voluntary registers for healthcare support workers and adult social care workers, which could be operational from 2013 onwards; so, to be clear, those workers meeting the standards of training and conduct would be able to be included on an assured voluntary register. We will ensure that the delivery of training for health and care assistants who are entitled to be included on a voluntary register is professionally led, and I can confirm that, following this debate, I will be writing to Skills for Health and Skills for Care to make this absolutely crystal clear.
Lord Newton of Braintree
Will my noble friend give way just briefly? I was at the other end of the Chamber, but I have shifted ends. Leaving aside the point about tracking, on the point about whether there will be one or more register I am conscious that, in the area of ombudsmen, there is experience of rival ombudsmen. Frankly, especially since it is in the choice of the provider not the customer, the providers go to the one who they think will give them the easiest ride. I do not want to see that situation here. Serious consideration needs to be given by whatever means to making sure that, if there is a voluntary register, it is one register and not a choice between a good one, a bad one and an indifferent one.
Earl Howe
The key here lies in the standards and the training. If we have standards laid down that are uniform across the piece, I am not sure that having more than one register is a significant issue. As I said, this is something that the professional standards authority is bound to take account of when deciding whether to accredit another register.
The noble Lord, Lord MacKenzie, expressed the view that voluntary registration does not work. The Government’s proposals are for assured voluntary registration. We believe that the effective assurance of the standards of healthcare support workers can be delivered by an assured voluntary register that is underpinned by clear standards of conduct and training and supported by the Nursing and Midwifery Council’s updated guidance on delegation.
The noble Baroness, Lady Finlay, asked how standards will be monitored. We will expect the professional standards authority to assure that any standards set for a voluntary register are appropriate as part of its initial accreditation process. It will keep the operation of any register under review and we will expect it to set out any concerns that it has about standards. The authority will also have powers to remove the accreditation of registers if any of its concerns are not addressed in a timely fashion.
The noble Lord, Lord Patel, asked what criteria would apply in individual cases. In its council paper, Voluntary Registers—Proposed Model for the Accreditation Scheme, the CHRE has stated that all voluntary registers seeking accreditation will be required to complete a risk assessment tool that will assess the risks inherent in a profession’s practice and the means by which those risks are and could be managed. The authority will also keep under review the management of risks by an accredited register. That will be part of its role.
However, having listened to the concerns raised in this House, the Government have given further consideration to this whole issue. Once a system of assured voluntary registration has been established for this group and has been operational for three years, to enable it to demonstrate its effectiveness the Government will commission a strategic review of the relative benefits of assured voluntary registration compared with statutory regulation. The review will involve all relevant professional bodies and trade unions. Such a review would include consideration of any further measures needed to assure the safety of patients and the public, including consideration of the case for compulsory statutory regulation or—and I say this in particular to the noble Lords, Lord Kakkar and Lord Hunt—making standards of training mandatory for employers through the use of standing rules for the NHS Commissioning Board and standard contracts for providers.
The noble Lord, Lord Kakkar, raised what I thought was a very astute point about the NHS standard contract. I can confirm that, yes, the Secretary of State will have the power to include in the standard contract the fact that relevant workers must be on a particular voluntary register. We see this as a strong lever, and we would want to consider it very carefully before deciding to use it in a particular instance, but wherever there was clear and demonstrable evidence that doing so would ensure quality of care, we would give it very serious consideration.
I can confirm that the question of whether to move to statutory regulation will be viewed openly, with full consideration of the potential benefits that it might be able to bring. I can say to my noble friend Lord Newton once again that the power to introduce statutory regulation already exists, in Section 60 of the Health Act, if a decision were to be made to deploy it. The Law Commission is in fact consulting at the moment on an even broader regulation-making power in the future. In the mean time, we are committed to exploring the evidence base on ratios of qualified to non-qualified staff. I totally agree with the noble Baroness that this is a key point. We will look carefully at the evidence from ongoing work by King’s College.
I have tried to set out what one might term, picking up a phrase from the noble Lord, Lord Patel, the direction of travel here. I hope that the noble Baroness, Lady Emerton, will understand our commitment to seeing defined standards and improved skills in the healthcare support workforce. The noble Baroness, Lady Masham, asked whether it is not time to have better safeguards in place. Yes, it is. I agree with her. Where we part company is on what a set of new safeguards should be. I strongly feel that a combination of voluntary registration and training is the more appropriate and proportionate solution to what I agree is a problem that needs to be addressed. The work that we have commissioned takes us on that road.
I hope that I have been able to reassure noble Lords of our commitment to strengthening the assurance processes in place for health and social care support workers, and that, perhaps with reservations but nevertheless more confidently than before, the noble Baroness—
Baroness Wall of New Barnet
I have listened carefully to what the noble Earl has said and there are two areas that he has hardly mentioned—indeed, he has not mentioned one at all—but which he should perhaps refer to. What consideration has he given to the fact that, if you talk to healthcare assistants—and I mean literally hundreds of them—you find that they want this qualification and registration to illustrate the value that they have not just to themselves but also to colleagues around their hospitals? This is also the case for patients: if you do any survey of patients, they say that they want healthcare workers to be registered, so that they understand and have the assurance of that. I wonder how much consideration of those factors has gone into the deliberations that he is talking about.
Earl Howe
I apologise to the noble Baroness for not covering that point. We are well aware of precisely that view among the workforce. With the creation of a voluntary register, the process that she refers to will gather its own momentum because people will see the opportunities open to them to accord themselves the status that they clearly crave. It is important, from the point of view of the patient, that hospitals—and, indeed, care homes—are employing people of a certain standard of accreditation and skill. I think, therefore, that this will be self-fuelling and I hope that, once the register is on offer, substantial numbers of healthcare support workers will be encouraged to join it.
Lord Quirk
I wonder whether the noble Earl could address the point made by the noble Baroness, Lady Howarth, about social workers as distinct from health workers in this group.
Earl Howe
The noble Baroness, Lady Howarth, was, of course, quite right, because we have a mix of skills in so many settings. I did not share her view that, if I can put it this way, the skills of social workers were being belittled by the noble Baroness, Lady Emerton—not at all. She was, however, right to point out that the role of social workers can be just as critical for the well-being of patients and service users as the role of a healthcare assistant. We should not automatically think of these skills as medical skills; they are, in many cases, wider than that. We recognise that there are two distinct groups of workers here—that is the reason why we have asked Skills for Health and Skills for Care to work together to define standards of training. Despite the differences between the groups, there will be similarities; we want to tease out what those are and to define them accordingly. I hope that this is helpful. I hope, too, that the noble Baroness will be reassured and feel able to withdraw her amendment.
Baroness Emerton
My Lords, first, I thank all noble Lords who have participated in the debate this morning. It has highlighted and pinpointed one of the essential needs that must be addressed very quickly in terms of the future of the health service. The noble Lord, Lord Hunt, said that he thought that I had probably put down the amendment as it was worded in order to raise a debate. He was right—I was concerned to get a debate raised on the whole issue. It is unfortunate that despite the Bill’s title—the Health and Social Care Bill—social care has not been included yet. We know, however, that social care will come, and I have been a great supporter of mentioning support workers as we have gone through the various briefings. I take the point made by my noble friend Lady Howarth that social workers are just as important as the healthcare support workers. However, I had to draw a line somewhere as to the title of the debate and how we moved it forward, and I thank noble Lords for their contributions.
I have listened very carefully to what has been said, including by the noble Earl, Lord Howe. If I have heard correctly, I think that he has given a reassurance and a commitment about how things might emerge in the next few months in terms of developing the care standards for the training. He has also given an assurance that there will be a review later on, after the establishment of the training, as to whether statutory regulation would be possible or whether voluntary registration had been satisfactory. The noble Earl knows that we have been waiting a very long time for the examination of the regulation of healthcare support workers. I will take away what he has said and I will read very carefully in Hansard what has been said—a lot has been said in nearly two hours of debate—but, for today, I will withdraw the amendment.
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, we now move on to another group on the regulation of healthcare workers, and social care workers as well. In debate in Committee, I made it clear that I was concerned about the decision of the Government to abolish the General Social Care Council and to transfer responsibility for regulation of social care workers to the Health Professions Council. I am concerned for two reasons. First, I know that the General Social Care Council had rather a bumpy ride to start with and was the subject of a review, which was critical of the way in which it performed. However, it is right to pay tribute to the tremendous work undertaken in the last two years under its current leadership and the chairmanship of Mrs Rosie Varley to improve and enhance the quality of the regulation by the council. It is very disappointing that the Government have decided that, just at the time when the GSCC is starting to prove itself, the whole thing is to be dismantled and the function transferred to the Health Professions Council.
I also do not understand why the Health Professions Council is considered to be the right regulator for social workers. There is a difference between social work and health work. We touched on that in the last debate. I agree with what the noble Earl, Lord Howe, said in response to the noble Baroness when he reflected on the value of social care workers but also on the difference in role. The Health Professions Council regulates a number of bodies, but they all have a health basis in the main. Therefore, it stretches the imagination to see how this body will effectively regulate social care workers in the future. The profession of social work is pretty fragile and having its own regulator is one of the building blocks for boosting the status, confidence and quality of the social work profession.
I oppose the abolition of the GSCC and the transfer of social worker regulation to the HPC in principle. If I am unsuccessful in persuading the Government, even at this stage, to change their mind, I suggest that a number of issues would help to reassure me and many social workers about the way in which the HPC will perform. This is why I have a number of amendments, which seek to ensure that there is an appropriate definition of “social worker”. I think that it would be appropriate, inside the HPC, to establish an office of chief social worker. I also think that the name of the HPC should recognise that it is regulating the social work profession. I have not yet had any rational answer as to why “Social Work”, or something of the sort, should not appear in the title of the HPC. We know that the reason is that the HPC has refused to have it. I think that the department is finding it difficult to tell the HPC that it is subject to parliamentary provision and that it is not enough, simply because it does not want “Social Work” in its title, not to agree to it. I refer the noble Earl, Lord Howe, to the Bill before us. It refers, in these clauses, to a number of orders, including health and social work orders. Therefore, there clearly cannot be an objection in principle to the use of “Social Work” in the title. It is totemic, but it is at least a way of showing the 100,000 individuals in the social work profession to be covered that in fact the HPC is not going to continue with a medical model of regulation.
My final point is this. I invite the noble Earl to state clearly that it is not his department’s intention that the HPC should eventually take over the regulation of nurses and doctors. He will know that a review is being undertaken of the Nursing and Midwifery Council and I gather that there are also proposals to change the governance of the General Medical Council. A number of people in the health service have told me that they think the eventual aim is for the HPC to regulate all the healthcare professions. The noble Earl would provide a great deal of reassurance if he would say that it is not his department’s long-term ambition to turn the HPC into the sole regulator of all the health and social care professions. I for one would be very concerned about that. I beg to move.
Baroness Meacher
My Lords, I shall speak to Amendment 241C, which is tabled in my name. I also support the amendments tabled by the noble Lord, Lord Hunt. I was tempted to add my name to them, but I was a bit late yesterday. These amendments concern the implications of abolishing the General Social Care Council and the dilution or indeed the elimination of some of the functions carried out by that body. I thank the Minister for the briefing meeting that he held yesterday. At the tail end of this most unpopular of Bills, and after what I gather have been more than 100 meetings with Peers and others, I want to acknowledge the extraordinary work that the noble Earl has done throughout.
The social work profession is perhaps the most battered profession in this country and, if I may say so, the previous Government did not help in that. A certain Secretary of State for Education in the other place took what I thought was completely unreasonable action following the Baby P incident, which left the social work profession pretty much on its knees. The idea of having a chief social worker in this country who would act as a spokesperson for social work—someone who would promote and defend it—is enormously justified at a time when the profession, as I say, is on its knees. It is very difficult to appoint good people because of the reputation of the profession and because of the actions of that Secretary of State. He happens to be a friend of mine, but I think that he made a terrible error on that occasion.
Amendment 241C seeks to ensure that best interest assessors under the Mental Capacity Act continue to have their training regulated. I realise that the Government’s agenda is to reduce regulation wherever possible and I broadly support that objective, because we have had too much regulation in this country. But there are limits to that process and I believe that this is one issue over which the Government have in fact gone beyond a reasonable limit. Post-qualification training is currently regulated by the General Social Care Council, but under the Bill only the training of approved Mental Health Act practitioners will be regulated by the Health and Care Professions Council. Although the GSCC accepts that it could have done a better job with that regulatory power, to do away with it altogether seems to be the absolute opposite of the right answer.
Why is this important? It is because the issue here is often about the deprivation of liberty of elderly patients with dementia and those with severe learning difficulties. Civilised countries always take extra care in protecting individuals where their liberty is being taken from them. It is somewhat arbitrary that these groups happen to fall into the ambit of the Mental Capacity Act on the one hand and that of the Mental Health Act on the other. I am sure that in time those two pieces of legislation will be brought together, but in the mean time we have to manage the fact that people are being detained either under the Mental Health Act or the Mental Capacity Act and that very similar processes are under way in the two sets of circumstances. Mental Capacity Act clients in residential homes or nursing homes, for example, who do not have the capacity to make their own decisions about their lives, are in essentially the same position as psychiatric patients who are not able to make a rational decision about whether they need to be detained in hospital.
Psychiatric patients are assessed by approved Mental Health Act practitioners to determine whether they warrant that detention. In Mental Capacity Act cases, the professional is assessing whether a particular decision is in the best interests of the patient or resident, assuming that the patient does not have the capacity to make the decision for themselves. In both cases this is likely to involve assessing whether the individual can live safely at home. That is the whole point. People are assessing pretty much the same thing under the two different pieces of legislation. It is true that in some cases approved mental health practitioners have to assess the risk to others, but the issues are honestly very similar. Is there any logic, therefore, in regulating one and not the other? We know that abuse of these adults is commonplace. Relatives may of course be absolute angels in terms of protecting their family members, but they may not be, and the best interest assessor is there to protect vulnerable people when relatives let them down.
The words of Mr Justice Peter Jackson in his ruling in the London Borough of Hillingdon v Steven Neary and Mark Neary and the Equality and Human Rights Commission highlight the importance of the deprivation of liberty safeguards. The deprivation of liberty safeguards were designed to protect the human rights of some of our most vulnerable people. Employers and supervisory bodies have to be sure that the professionals they charge with undertaking this vital role are competent, compassionate and able to approach the situation from both a practice and legislative basis. With the closure of the GSCC, I urge the Minister to put in place a system at least as robust as the current one, and ideally more robust, to ensure that the providers of training for best interest assessors can clearly demonstrate their ability to produce and, importantly, assess potential best interest assessors. That would go a long way towards protecting some of these very vulnerable citizens.
I want to turn briefly to a number of the amendments tabled by the noble Lord, Lord Hunt. The first concerns student registration, which we discussed in detail at the briefing meeting yesterday. I shall not go into all the detail again. However, it has to be said that if it is justified to register social workers, it has to be justified to register social work students. That is because these people are unknown and untried. They go into vulnerable people’s homes on their own and they are probably more of a potential risk to their clients than qualified social workers. There is once again an issue of logic here, which I hope the noble Earl will take seriously.
A further concern is that, as I understand it, the Health and Care Professions Council will not introduce the satisfactorily assessed and supported year in employment as a requirement before someone can be accredited as a fully qualified social worker. This is another important safeguard, as people have to prove themselves over the course of a year’s work. There is no great administrative problem about this. It is simply a requirement so that employers meet certain standards. I would argue that it is not a bureaucratic nonsense; it is an important requirement.
Finally, there is to be no regulation of social care workers. The arguments that were rehearsed in the previous debate probably apply just as much to this one. The case for statutory regulation where vulnerable people and low-paid workers are concerned seems absolutely overwhelming. Again, I hope that the noble Earl might agree also to have a review of this area. At the minimum, is the process of voluntary regulation really working?
I fear that the Government have gone too far in dismantling the protections for vulnerable clients. Of course employers and universities have important responsibilities for their workers and clients, but I hope that even at this late stage the noble Earl might want to maintain some state responsibility for the protection of these most vulnerable clients when their liberty may be taken from them.
Baroness Howarth of Breckland
My Lords, if the noble Earl thought I was being unkind to the noble Baroness, Lady Emerton, he may think that I am being even more unkind when I come to address him. I want to make it absolutely clear that I was asking the noble Baroness whether she had seen the defect in her amendment. Delegated powers would go from health professionals to the social care professionals and not from the social care professional leaders in establishments down to social care providers. That was a significant defect which I think the noble Baroness herself noted, as did other noble Lords, during the course of the debate. That was all I was raising but it leads on to this debate about the social care profession and how it is valued when compared with other professions. That is why this debate, at this moment, is crucial to social workers.
I ask the Minister this question. Is it the Government’s intent to remove the profession of social work from the nation’s vocabulary? That may sound an unkind question, but social workers are beginning to feel that they do not belong anywhere. Their name is not in any of the Bills. Indeed, their professional organisation is being wiped out, as they see it. I will not repeat the points made my noble friend Lady Meacher about some of the protections around people practising and training with clients. They have to practise alone. They are not supervised day-to-day by having someone with them who is also registered in a proper way. All of these things undermine the profession.
When the Conservatives were in opposition, the Conservative Party set up an inquiry to look into social work, taking the view that it wanted to encourage and enhance the social work profession. I was very grateful and felt that it had made a real difference to the way that social workers were valued. In that inquiry, the Conservative Party acknowledged the difficult work that social workers undertake with disruptive families, the mentally ill, children, the disabled and those with learning difficulties—in fact most of the groups in our society that other people do not wish to have to deal with day to day. Those people can be intransigent, difficult and often stubborn and social workers have to develop new skills in order to move families on into change, particularly in the present environment. That moved on to the Munro review of child protection and the hope that social workers would gain more control over their lives and the way that they worked, lessening the bureaucracy and enabling them to do more.
However, to have their designated regulatory body removed and to be absorbed into what they see as a healthcare organisation will detract from all of that. The people you meet out there who are involved in social work worry about where they stand in terms of the whole of the social care sector. If you talk to them alone, you will find that they are pretty low, depressed and fragile and that affects the way that they carry out their work. It affects the enthusiasm and joy with which social work can be carried out.
I am having real difficulty. Perhaps the clerks will recognise that. I do not want to speak at length because what I have said is to the point. I will not go through the amendments. Other noble Lords will do that in detail. Of course, a principal social worker would make a difference. In a former position, the noble Lord, Lord Laming, made a huge difference to the social work profession. It felt that someone, somewhere, was there on its behalf. We have people in the Department of Health, but they are not given the strength and status that Herbert had when he stood in that position and made that difference.
There were difficulties with the regulator, but I have just spent eight years working in another organisation that had difficulties. If you work hard enough and long enough, you can get it right. It is not right to give up in the middle and to change things so fundamentally that people do not recognise that it has anything to do with them. Certainly, social workers are not recognising that the new regulator will have anything to do with them.
I am sorry to speak so strongly and so generally but, sooner or later, someone has to speak up for those people who are doing what I call the dirty work of the nation on behalf of all of us. It may be that my cold is not helping and I am not my usual gentle self, but I feel extraordinarily strongly that, unless the Government take it upon themselves to encourage and make social workers feel valued, understand their work and differentiate them from the medical care area, we will have fewer social workers of ability on the ground and they will make more mistakes. More mistakes will mean more difficulties for children and old people, never mind the field day that the press will have, and we will be on a downward spiral. I ask the noble Earl to look at the issue that the noble Lord, Lord Hunt, is raising and to do what he can to stop that from happening.
Baroness Pitkeathley
It is a great pleasure to follow the noble Baroness, Lady Howarth, who I deservedly call my noble friend. I very much hope that the Minister will give her the assurances that she seeks. With regard to my noble friend’s amendments on the General Social Care Council, I take the view that we are where we are, however much I wished that different decisions had been taken. Noble Lords will appreciate that, as the first chair of the General Social Care Council, I would say that, wouldn’t I?
However, I take this opportunity to pay tribute to the councils and staff of both the General Social Care Council and the Health Professions Council for the professional and mature way that they have approached the difficult situations in which they found themselves. Their behaviour has been an example to us all and particularly, as far as concerns the GSCC, the fact that high staff morale has been maintained throughout this process is nothing short of a miracle and a great tribute to its leadership.
I agree with other Lords who have called the social work profession fragile. It needs to be promoted and defended if we are to maintain and extend the recruitment that the noble Baroness, Lady Howarth, has reminded us is so important for those people who do the difficult work in our society—which is rarely recognised until the tabloid press attacks it. I must draw your Lordships’ attention to the College of Social Work, which has just been established, which will have the promotion and defence of this fragile profession as part of its remit. It has had a difficult start, as is well known, but I believe that it has the potential to promote and support the profession to which we are all so indebted.
Baroness Finlay of Llandaff
My Lords, I have my name to two amendments in this group. They do not affect social work and therefore I have waited to intervene until the debate on social work had been completed.
I want to discuss two groups: clinical perfusion scientists and clinical physiologists. The clinical perfusion scientists are responsible for the single most invasive tool used in surgery today and are routinely responsible for the administration of potentially fatal controlled drugs. The numbers are small—there are only 350 clinical perfusionists—and they operate in a regulatory vacuum; they are the only non-regulated members of the cardiac surgical team. Yet their management routinely involves significant life-threatening risks to patients daily. Because they are not a regulated profession, in July 2009 the Department of Health produced a good practice guide to clinical perfusion in response to the Gritten report of 2005. It states that the Government fully recognise the need for clinical perfusionists to be regulated by statute and it draws attention to the fact that the document is an interim measure until they are subject to statutory regulation. Indeed, the document states that this has implications in law for their role in working with medicines.
Since the Gritten report in 2005, about a quarter of a million cardiac patients have had their hearts stopped for surgery by perfusionists, who use highly toxic substances and blood products. They feel that they need statutory regulation so that they can be supplementary prescribers, as there is a questionable legality at the moment around drug administration. They are in a unique position. It is this supplementary prescriber role that causes them much concern, because they would like to be assured that what they are doing falls fully within the Medicines Act. I hope that when the Minister responds he will be able to explain quite clearly precisely how, if they are not subject to a statutory register, everything they do complies fully with the Medicines Act.
As for assessing the risk and the need for a profession to be registered, the review of the Professions Supplementary to Medicines Act was debated in another place in 1999. The key test stated in that review is,
“whether there is the potential for harm arising either from invasive procedures or application of unsupervised judgement made by the professional which can substantially impact on patient/client health or welfare”.
In response to that test and in relation to clinical perfusionists, the right honourable Andrew Lansley, said:
“It seems to me that perfusionists entirely match that criterion”.
It seems odd, having had that debate and that being on the record, that clinical perfusionists are still trying desperately to argue that they should be subject to statutory regulation and feel that they are failing to achieve that.
The other group that I want to discuss is clinical physiologists. I suggest again that they fall within that criterion. They are a very skilled group of people who are often alone with patients, including children, in situations in which they are responsible for conducting sometimes complex investigations and interacting closely with whoever is the patient in front of them. For the past 10 years, they have had a voluntary register, which they feel is flawed and demonstrates the need for statutory regulation. As a group they will not gain either in status or financially by having a statutory register. They want it because they are concerned about patient safety. Their view is that there is currently no incentive to register; they are in short supply anyway and can get another job without too much difficulty.
As a group, they sent me an individual case study, which I found quite worrying. I will try to summarise for the House briefly, because this is Report. They cited a clinical physiologist who had been working unsupervised in a room alone with children and working one to one with them. Following a holiday to Amsterdam, he was found to be in possession of child pornography, prosecuted and placed on the sex offenders register. Among his papers, the police found that he was a clinical physiologist and alerted the appropriate group. They alerted the employers but discovered that even though he lost the job he was in, he was rapidly re-employed in another hospital, which they also alerted. They followed it up to find that he had changed his name and, under another name, again had sought employment. They are very concerned that this is one they know about but that there may be others they do not know about. The group does not see how its voluntary registration system gives patients and the public the protection that they ought to have.
Baroness Masham of Ilton
My Lords, I support the amendments in the names of my noble friends and Amendment 254 in the name of the noble Lord, Lord Hunt of Kings Heath. Clinical physiologists have had voluntary self-regulation for years and they say that it is not as effective as statutory regulation. They have been trying to get statutory regulation since 2004. All clinical physiologists work independently, and while the overall standard of practice is high there is a significant level of risk to patients as practitioners provide services that directly affect the diagnosis and management of patients. Most patients are unaware that clinical physiologists are not statutorily regulated when they are undertaking invasive or high-risk procedures. The clinical physiologists say that there are about 10,000, of which only about half are voluntarily registered. This debate for clinical physiologists has been running on for too long. They are getting frustrated. They want better patient safety, which they feel statutory registration will help to provide. They feel that the Government could easily give them this. I ask the Government: why not? They are a significant and important group doing work with a high risk to patients.
Lord Walton of Detchant
My Lords, I, too, support these two amendments on the regulation of clinical physiologists, and I think that the case my noble friend Baroness Finlay made about clinical perfusionists is extremely strong.
Clinical physiologists work across a wide range of disciplines. Some work in cardiac investigations, some in respiratory investigations, some in gastrointestinal investigations, but my particular interest relates to clinical neurophysiologists, who carry out a wide range of different investigations involving patients.
Many years ago in my early days as a neurologist, I was involved in the interpretation of electro- encephalograms, and I also introduced into the north-east a technique of electromyography, which is a means of identifying and studying the electrical activity of muscles in health and disease. In all these activities, I was supported by well-trained clinical physiologists. In those early days, those individuals quite often became members of the EEG society, as it was called, of which I was a founder member.
Later, as the interests and the techniques broadened and became much more extensive and much more sophisticated, that organisation, which included doctors working in the field as well as the people called technicians, who were in a sense clinical physiologists, changed its name to the British Society for Clinical Neurophysiology, and the so-called technicians became part of a body called the Electrophysiological Technicians Association—the EPTA—an organisation that later became the Association of Neurophysiological Scientists. It is now very well trained. It works not only in EEG and EMG but in techniques including evoked potential recording, peripheral nerve studies—the measurement of nerve conduction velocity as an aid to diagnosis in disease—and techniques of magnetoencephalopathy. A whole series of new techniques has been developed in which these clinical scientists or clinical physiologists—technicians as they once were—are very deeply involved. They are sufficiently well organised in their professional bodies, which represent their interests, and in the voluntary registers, of which many of them are already members, that they fully deserve registration under the Health Professions Council. Such a statute is long overdue. For that reason, I strongly support the amendments.
Lord Rea
My Lords, Amendments 253, 254 and 255 concern various clinical scientists, particularly clinical physiologists. In Committee, I declared an interest in that I have received skilled care from clinical physiologists for nearly five years in monitoring my pacemaker. From 2008 to 2010, when the previous Government were in office, I asked four Questions for Written Answer, pointing out that the Health Professions Council had recommended in 2004 that clinical scientists be included in its regulatory regime. This recommendation was accepted by the Secretary of State at the time. The Answers that I received respectively from my noble friends Lady Thornton and Lord Darzi said, in impeccable ministerial speak, “This will be done not this year, perhaps next year, but certainly some time”. However, the noble Earl, Lord Howe, suggested in Committee that it would be sufficient to continue the voluntary registration scheme that exists now.
Perhaps I may read a small extract from a note sent to me by the Registration Council for Clinical Physiologists, which compiles a voluntary register. The council states that it has,
“substantial evidence suggesting that voluntary self-regulation is not effective for clinical physiologists. Our register has no power of enforcement and is completely toothless because it cannot protect patients from continuing to be treated by practitioners who have not been registered and who are potentially unfit to practise. Where a complaint is made and upheld about a practitioner, he or she usually ‘disappears’ from the voluntary register, which means it is impossible for the RCCP to do further investigations, while the practitioners under investigation are able to find employment elsewhere”.
The noble Baroness, Lady Finlay, gave an example of precisely that. Surely that should not be allowed to continue, and I hope that the noble Earl will reconsider his position and agree that statutory registration is the way forward for this very important group of skilled health professionals.
Earl Howe
My Lords, the amendments deal with two discrete areas. The first set of amendments relates to our proposal to establish a system of assured voluntary registration and seeks to extend compulsory statutory regulation to clinical perfusionists and clinical physiologists, and to make further amendments to legislation to account for this.
The second set relates to the transfer of the regulation of social workers in England from the General Social Care Council to the Health Professions Council, to the protection of the function of social workers, to the office of the chief social worker and to the approval of the training of best-interests assessors. Also included in this second group is a minor and technical government amendment intended to correct an inconsistency in drafting.
As for assured voluntary registration, the vast majority of workers give the very highest quality of care. However, a minority let patients down. This is a cause for concern for all of us and it is right that there is discussion about how we can ensure high standards of care. The Government’s view is that compulsory statutory regulation is not the only way of achieving this and can detract from the essential responsibility of employers to ensure that any person whom they appoint is suitably trained and competent for the role.
As I reminded the House earlier, there are already existing tiers of regulation that protect service users, including the standards set by the Care Quality Commission and the vetting and barring scheme. We also need to be clear that professional regulation is not a panacea. It is no substitute, as I said previously, for good leadership at every level and the proper management of services. It can also constrain innovation in some circumstances and even the availability of services.
Experience clearly demonstrates that a small number of workers who are subject to compulsory statutory regulation from time to time fail to ensure that their practice is up to date and delivered to the standard that we expect. In these circumstances, it is too often the case that regulation can react only after the event. The regulation of individuals will not prevent another Mid-Staffordshire, but strong and effective leadership of the workforce may do, and we believe that employers and managers who are closest to the point of risk must take responsibility for ensuring standards.
The Government believe that a system of assured voluntary registration will support commissioners, employers and supervisors to deliver their responsibility for assuring standards by providing independently assured standards of conduct and training for those on accredited registers. We believe that this approach will work well for clinical physiologists, clinical perfusionists and other groups of health and social care workers. Here, we are building on the work started under the previous Government.
The noble Baroness, Lady Finlay, is right that clinical perfusionists are not subject to statutory regulation, but I assure noble Lords that where failures or risks on the part of clinical perfusionists have been identified in the past, action has been taken action to address them. The Department of Health issued guidance in 1999 that the NHS should use only accredited clinical perfusionists, and further guidance in 2009 that clarified the systems and processes needed to ensure high-quality perfusion services. However, employers, commissioners and patients currently have no objective or independent way of determining how robust the accreditation arrangements are, as they not subject to independent scrutiny. In future, if the voluntary register is accredited by the PSA, they will be subject to such ongoing independent scrutiny.
The noble Baroness, Lady Finlay, asked me about the administration of drugs by perfusionists and compliance with the Medicines Act. Perfusionists cannot prescribe drugs, although they do of course administer perfusions. I would say in my defence to the noble Baroness that compliance with the Medicines Act is rather a technical legal point. If she will allow, I am happy to write to her on that legal position.
Both she and the noble Baroness, Lady Masham, indicated their view that voluntary registers already exist and do not work. Voluntary registers do exist, so standards for these professions exist as well. It has to be said that the Department of Health has little if any evidence of a general problem with the standards of practice for these groups, but, as I said previously, we currently have no objective way of saying to employers that if they rely on professionals who are on existing voluntary registers they can be sure that they are meeting appropriate standards. In future, where voluntary registers are accredited by the Professional Standards Authority, that will be possible.
Lord Walton of Detchant
Will the noble Earl accept that, as the noble Lord, Lord Rea, said, clinical physiologists, and in particular clinical neurophysiologists, have been aware for years that they have produced a very satisfactory standard of voluntary regulation and registration? They have been talking about the possibility of achieving statutory regulation for years. It has been hinted at by Government after Government. They now feel very strongly that the failure of Governments to accept their need for statutory regulation is, in a sense, a kind of downgrading of the status of their respective professions alongside other professions of individuals who work with patients which are regulated by the Health Professions Council: physiotherapists, occupational therapists, and many more. They feel that it is in fact a mark of a lack of respect by the Government that they are being refused statutory registration.
Lord Rea
I hope that it is in order to ask the noble Earl a question. When he was talking about the registration and regulation of clinical physiologists, he spent quite a long time saying how voluntary registration could be improved and how good and suitable it was, but he has not actually said why the Government have such a big objection to statutory regulation. I do not quite see why the Government are so unwilling to go ahead immediately with this.
Earl Howe
My Lords, if the clinical physiologists feel as the noble Lord, Lord Walton, says they do, I would simply urge them to read what I have said about the merits of assured voluntary registration. It is true that this issue has been on the table for a number of years. The difference between the start of that debate and the point that we have now reached is that there is more than one option on the table. Assured voluntary registration did not exist 10 years ago, but it is now about to become a reality. We come back to the basic point that regulation in itself is not a panacea. Those who think it is need to examine those cases where failures of care and services have taken place. It is much more about upskilling people, making sure that employers are aware of their responsibilities and ensuring proper supervision in the care setting.
Baroness Williams of Crosby
The noble Lord, Lord Walton, raises the point that the physiologists may well feel themselves to be treated as a second-rate profession. One of the finest things about the Bill is the way in which it extends the whole concept of treatment to people beyond those who are registered members of the medical profession, to those who belong to professions ancillary to medicine. I wonder whether the noble Earl might take into account the fact that we really need to move towards equal status between people who are involved in the profession, including in the commissioning groups, where some of those who will be on the governing bodies will be people who are not themselves doctors, but who are crucial to delivering an integrated medical outcome. I think the noble Lord, Lord Walton, has made the point that registration has become, in a sense, almost a recognition of status. I see that point.
Earl Howe
I very much agree with my noble friend that we want to see a breaking down of silos, if I can put it that way, and a mutual respect and dependence appearing at commissioning level. I am not aware of any examples of clinical physiologists or perfusionists being involved in the commissioning of care. On the face of it, that seems unlikely, although not impossible; I would not rule it out. I take my noble friend’s point about our general wish to see a raising of quality not only in commissioning but also in the provision of care. It is a point well made.
Baroness Finlay of Llandaff
The Minister has spoken about assured voluntary registration being available now. He has said that the Government will monitor it and, if gaps are revealed, would then reconsider statutory registration. It strikes me, first, that we need to know what the criteria are that would trigger moving from an assured voluntary register to a statutory register and, secondly, that these professional groups are in a Catch-22 situation. They have been seeking statutory regulation to drive up and maintain high standards of clinical care. They have been doing all that they can to maintain high standards of clinical care. If they carry on being able to maintain those high standards, gaps will not be revealed. The only way that gaps might be revealed is, in fact, if they drop their standards. It seems like a Catch-22 situation, but I think that I have probably misheard the Minister.
Earl Howe
We are talking about controlling risk. The noble Baroness is right that the Government will retain an open mind about statutory regulation. I hope that that is clear. We have not closed the door to that by any means. However, clinical physiologists, for example, say that risks are apparent to them which some clinical physiologists pose to patients. We have never seen evidence of those risks. In the past, when the Health Professions Council made recommendations about regulation, it has not considered risks. However, we agree with the previous Administration that the extension of regulation should be based on risk. That is the key point. If it is shown that, notwithstanding everybody’s best efforts, assured voluntary registration has not been sufficient to protect patients then, of course, any responsible Government would wish to see a strengthening of the measures around registration.
I revert now to social workers, as I hope that I have covered the points raised. We can most effectively bring improvements to the regulation of social workers in England by transferring their regulation to the Health Professions Council. To answer the noble Lord, Lord Hunt, it may well be that the GSCC could have delivered improvements in the way that social workers are regulated. However, reforming the GSCC’s procedures to ensure that they were fit for purpose would have taken time and, I can tell the noble Lord, would have required very considerable resources. The cost involved, among other considerations, would have been prohibitive.
The Health Professions Council is an established and effective regulator. The proposed transfer of functions to it would bring a number of benefits to the regulation of social workers in England, and I have outlined those. The name “Health and Care Professions Council” was decided upon with reference to the views of the Social Work Regulation Oversight Group, of which both the chair of the Social Work Reform Board and the chief executive of the GSCC are members. As part of the process of renaming the Health Professions Council, the name “Health and Social Care Professions Council” was considered. However, following research commissioned by the Health Professions Council, it was decided that the name “Health and Care Professions Council” most effectively reflected the new remit of the council in a way that was clear to the public, registrants and employers, while maintaining name recognition for service users, employers and registrants. However, to ensure even further clarity for the public, the Health Professions Council’s new name will be supported by a strapline: “Regulating health, psychological and social work professionals”, so it is not as though “social work” has been omitted entirely from the heading of this organisation.
Lord Hunt of Kings Heath
My Lords, I thank the noble Earl for his lengthy response, particularly in relation to clinical psychologists and clinical perfusion scientists. I am sure that noble Lords will have noted with interest his remarks, and indeed we have had further discussions about it. The debate has shown that there is a weakness in the continuation of voluntary regulation that will not go away.
Turning to social work regulation, I must say that I am disappointed by the noble Earl’s response. Unless this is a Department of Health contribution to the review of public bodies and it is simply a way of getting the number it is responsible for down, I still do not understand the logic. There is no doubt—here I pay tribute to my noble friend for her sterling efforts, which have been continued by Mrs Rosie Varley—that the General Social Care Council was getting to grips with the issues identified in the review, so I cannot understand why it could not have continued. The advantages mentioned by the noble Earl in relation to the HPC could all have been developed by the GSCC. I come back to the points raised by the noble Baronesses, Lady Howarth and Lady Meacher, about the fragile confidence of the social work profession. Replacing its regulatory body with an all-singing, all-dancing essentially health body is not the best way to give it confidence.
On the title, I do not think that a strap-line is good enough. I simply point out to the Minister Clauses 216, 218, 219 and 220, which refer to the health and social work professions order. All the spurious arguments that have been made as to why this body cannot have social work in its title are given the lie by the fact that in this legislation the noble Earl is relying on that order. I would have thought that if the HPC was serious about wanting to develop confidence within the social work profession, it would have agreed to have the words “social work” in its title. However, I will not press Amendment 241A concerning the protection of the functions of social workers.
Lord Hunt of Kings Heath
(a) omit the “or” preceding paragraph (c), and(b) after that paragraph insert “; or””
Baroness Rawlings
My Lords, I remind the House that Questions will be at 2.30 pm. If necessary, we will interrupt an amendment at that point or just before.
Amendment 249
Lord Patel
“Public health specialists
(1) In section 25(3) of the National Health Service Reform and Health Care Professions Act 2002, (regulatory bodies regulated by the Council for the regulation of health care professionals), after paragraph (j) insert—
“(k) those statutory bodies responsible for the regulation of public health specialists including those from backgrounds other than medicine, for whom a statutory register will be established by the Health Professions Council.”(2) In this Act “registered public health specialist” means a person recognised as such on a register maintained by those statutory bodies responsible for the regulation of public health specialists, including those from backgrounds other than medicine.”
Lord Patel
My Lords, Amendment 249 is related to statutory registration. We have been talking about voluntary or statutory registration for the past three hours. I shall be happy if at any time the noble Earl interrupts to stop me trying to make a case for statutory registration for public health specialists because he has already made up his mind that he is likely to accept if not this amendment then statutory registration. I believe that the noble Baroness, Lady Northover, is trying to intervene.
Baroness Northover
My Lords, a great deal of attention has been paid to public health in this House and we very much welcome that and the efforts by the noble Lord, Lord Patel, and others. We recognise that public health specialists play a critical leadership role in protecting the public from harm. The Government recognise the strong support for a compulsory statutory regulation system for all public health specialists. I think that that is what the noble Lord was going to say. We agree that it is absolutely essential that all public health specialists, including those not currently subject to compulsory statutory regulation—
The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)
The noble Lord has not moved the amendment.
The Deputy Chairman of Committees
The noble Lord must move the amendment. Does the noble Lord wish to move the amendment?
Lord Patel
I was going to do so after I had heard the noble Baroness speak, because she interrupted my speech. I beg to move the amendment.
Lord Walton of Detchant
My Lords, it is important to amend the amendment, if only because it should say “backgrounds other than medicine” or dentistry.
Lord Patel
I should like the noble Baroness to finish her sentence, because I think she was leading on to say professions other than in medicine or dentistry.
Baroness Northover
If noble Lords are happy, I will continue. I will be happy to answer any questions. All public health specialists, including those not currently subject—
Lord Hunt of Kings Heath
I think that the noble Lord, Lord Patel, wanted an early indication as to whether the noble Baroness was going to accept the amendment and then allow the debate. He is not looking for a winding-up speech at this point.
Baroness Northover
Noble Lords will know that the Government have already announced their intention to regulate all public health specialists so that we address the anomaly whereby some were regulated and others were not. If that is the answer that the noble Lord was looking for, put briefly, I hope that he will welcome it.
Lord Patel
I welcome those comments. As I understand it, the noble Baroness, Lady Northover, is saying that the Government intend through secondary legislation to establish statutory regulation of all public health specialists, including those not in medicine and dentistry. I am grateful for that. I beg leave to withdraw the amendment.
Lord Ribeiro
“( ) But provision made under subsection (8) may impose a requirement on a local authority, or a description of local authorities, only if the requirement relates to—
(a) the exercise by an authority of any of its functions under section 2B or 111 of, or paragraphs 1 to 7B or 13 of Schedule 1 to, the National Health Service Act 2006;(b) the exercise by an authority of any of its functions by virtue of section 6C(1) or (3) of that Act;(c) anything done by an authority in pursuance of arrangements under section 7A of that Act.”
Lord Ribeiro
My Lords, I shall speak also to Amendment 257. I have tabled the two amendments for the following reasons. The Bill makes provision for local authorities to fund public health drugs and treatments. It also enables provision to be made for the replication of the funding direction to require the NHS to make available funding for NICE-recommended drugs and treatments. However, as currently drafted, the provisions in Clause 236 to enable replication of the funding direction for NICE-recommended drugs and treatments currently exclude their application to local authorities. Subsections (8) and (9) make provision to enable replication in regulations of the effect of the funding direction that currently requires PCTs to make funding normally available for drugs and treatments that have been recommended by NICE technology appraisal guidance. The amendment would permit other bodies that fund public health services to finance these suggestions as PCTs are phased out of the system, creating a more uniform and streamlined system for patients to manoeuvre through the different health services offered.
As the Bill currently stands, it is impossible for regulations to require local authorities—which take on health functions under new paragraphs (a), (b) and (c) in my Amendment 256—to comply with NICE recommendations to fund such proposals. While these local authorities are likely to be responsible for the funding of such treatments under their public health functions, without codification of their ability to do so in the Bill, there will be no authority to take over the funding of such recommendations to which PCTs remain currently obligated, thus creating a gap in care as health functions are transferred between PCTs and local authorities.
Furthermore, as enshrined in the NHS constitution and its accompanying handbook, NHS organisations are also required by a direction from the Secretary of State to finance drugs and treatments suggested by NICE which are based on sound research evidence. Although the funding direction concerns mainly high-cost drugs or treatments used in NHS secondary care, there have been two or three NICE appraisals that concern public health drugs and treatments. For example, NICE has appraised and recommended a smoking cessation drug, Champix—noble Lords will know of my interest in smoking—which is currently covered by the funding direction. To ensure that this gap in funding does not occur, my amendments would extend the scope of the regulation-making power, enabling requirements to be placed on local authorities exercising their public health functions so that the effect of the funding direction which currently applies to NHS organisations could apply also to them. It is important to note that, while local authorities will have the ability to fund NICE recommendations, this extension relates only to matters dealing with public health. Moreover, regulations will be unable to place a requirement on local authorities to comply with or have regard to NICE recommendations relating to social care, putting limitations on the funding capabilities of local authorities.
Lord Beecham
My Lords, I should declare an interest as honorary vice-president of the Local Government Association. I congratulate the noble Lord, Lord Ribeiro, on closing a lacuna and promoting integration, which has been a strong theme of our debates. He has spotted a difficulty and has dealt with it extremely competently. I trust that the Minister will be able to accept the amendment, which makes great sense and should contribute to the fulfilment of local authorities’ obligations in this sphere.
Earl Howe
My Lords, I am grateful to my noble friend Lord Ribeiro for tabling these amendments, which address the important issue of ensuring that patients have consistent access to appropriate and cost-effective drugs, whether a service is commissioned by the NHS or by local authorities.
As the House will know, NICE’s technology appraisals provide important recommendations on the clinical and cost-effective use of medicines and other technologies in the NHS. The funding direction that applies to recommendations in NICE technology appraisals has helped to ensure equity of access to NICE-recommended drugs and treatments wherever patients live in England.
While technology appraisals are perhaps most commonly associated with specialist drugs or interventions used or initiated in NHS secondary care, they also make important recommendations about drugs and interventions for use in other care settings, including preventive interventions. In future, these are likely to fall within the scope of local authority commissioning responsibilities for public health. My noble friend mentioned the example of Champix. He is right: technology appraisals could address drugs to aid smoking cessation and treatments to tackle substance misuse.
I agree with my noble friend that extending a funding mandate to NICE-appraised drugs or treatments commissioned by local authorities would bring important benefits. It would guarantee patients access to appropriate and cost-effective drugs, whether a service was commissioned by the NHS or by local authorities. In doing so, it would protect patients’ existing rights as set out in the handbook to the NHS constitution, to which he rightly made reference. I am very pleased that I am able to support these amendments and I hope that your Lordships will feel able to support them as well.
Lord Ribeiro
My Lords, I thank my noble friend the Minister for accepting the amendments. I thank also the noble Lord, Lord Beecham, for his kind words.
“( ) For the purposes of this section, a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service in England or (as the case may be) with what otherwise appears to the Secretary of State to be the purpose for which it is conferred.”
Baroness Rawlings
My Lords, this might be a convenient moment for the House to adjourn until Oral Questions at 2.30 pm.
RAF: Fukushima Accident
(12 years, 9 months ago)
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Lord Lee of Trafford
To ask Her Majesty’s Government what role the Royal Air Force Regiment played in the aftermath of the Fukushima Daiichi nuclear power plant accident.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, I am sure the whole House will wish to join me in offering sincere condolences to the families and friends of Signaller Ian Sartorius-Jones from 20th Armoured Brigade Headquarters and Signal Squadron; Lance Corporal Gajbahadur Gurung, attached to the 1st Battalion The Yorkshire Regiment; Senior Aircraftman Ryan Tomlin, from 2 Squadron Royal Air Force Regiment; Sergeant Nigel Coupe from the 1st Battalion The Duke of Lancaster’s Regiment; and Corporal Jake Hartley, Private Anthony Frampton, Private Christopher Kershaw, Private Daniel Wade and Private Daniel Wilford, all from the 3rd Battalion The Yorkshire Regiment, who have recently lost their lives in Afghanistan. The whole country owes them all a debt of gratitude for the sacrifice they have made. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude in which they face their rehabilitation.
A three-man RAF Regiment radiation monitoring team, along with an MoD health physicist, deployed to the British embassy in Tokyo from 21 March to 21 April 2011. They conducted air and soil sampling around the embassy and local area and monitored equipment and vehicles for contamination to advise and reassure embassy staff. The team also devised plans to protect UK personnel working at the embassy in the event of a further release from Fukushima.
Lord Lee of Trafford
My Lords, I should like first to join these Benches in the tributes to all those who died in the IED massacre. Perhaps I may also express on behalf of this House our condolences to the relatives of those Afghans who were brutally killed in the recent horrific shooting.
My understanding is that the team that went to Tokyo was part of the chemical, biological, radiological and nuclear wing of the RAF Regiment. Is this not yet another excellent example of where service personnel are called on to help in a serious civilian situation of a non-military nature?
Turning now to the major role of the RAF Regiment, may I ask my noble friend whether the regiment is training Afghan forces in Afghanistan in their major role of airfield protection so that they are able to take over when we withdraw our main combat forces?
Lord Astor of Hever
My Lords, I join my noble friend in remembering the Afghan civilians who were murdered the other day. I also agree with him that the RAF Regiment’s ability to deploy rapidly and assist in the way that it did is an excellent example of military aid to the civilian authority. The unique skills of the RAF Regiment go far wider than just on the battlefield. As for mentoring the Afghans, members of the RAF Regiment have mentored Afghan police from Helmand’s provincial response company, put them through basic and advanced training and deployed with them in a mentoring role over the past six months. Detailed planning for the redeployment of personnel from Afghanistan is ongoing, and it is too early to say when the RAF Regiment will return.
Lord Rosser
We would wish to join the Minister in offering our sincere condolences to the families and friends of the nine members of our Armed Forces who have recently lost their lives in Afghanistan while in the service of our country. Mere words cannot lessen the pain of separation but we want their families and friends to know that our thoughts are very much with them at the present time.
Could I ask the Minister whether the British nuclear industry has been able to learn any lessons from the knowledge gained from the RAF involvement in the aftermath of the Japanese nuclear power plant accident?
Lord Astor of Hever
My Lords, safety is always our number one concern for the British nuclear power industry. Fukushima changed the energy debate around the world. Questions were rightly raised about the extent and safety of nuclear power—people wanted to know what happened and whether it could happen again. Our chief nuclear inspector, Dr Mike Weightman, undertook a full lessons-learnt analysis on behalf of the Department of Energy and Climate Change, and my noble friend Lord Marland reported the findings through a Written Ministerial Statement on 11 October last year. Copies of the Weightman report were placed in the House Library.
Lord Stirrup
My Lords, the Royal Air Force Regiment is an example of good practice that is admired and to some extent envied by our US colleagues. In that regard, it contributes to the relationship that was so lauded in today’s edition of the Washington Post by President Obama and the Prime Minister. However, that same edition of the Post warned that the relationship could come under strain because of the defence expenditure reductions that have been made in this country. In his announcement of the SDSR outcome, the Prime Minister personally committed himself to an increase in defence expenditure in the years beyond 2015. Can the Minister say if that personal commitment remains today?
Lord Astor of Hever
My Lords, the noble and gallant Lord is trying to put words into my mouth that I would rather not say with the Budget coming up next week.
Lord Jopling
My Lords, I am sure the Minister is aware that NATO has annual exercises in doing exactly what the Royal Air Force Regiment has done in this case. In the past those NATO exercises have had minimal involvement from the United Kingdom. Will the Minister be good enough to have a look at all of this again and see if we could play a more positive part in these annual exercises in future?
Lord Astor of Hever
My Lords, my noble friend makes a very good point. I give him my word that I will take it back to the department and see what I can do.
Baroness Harris of Richmond
My Lords, the RAF Regiment is the acknowledged military expert force for CBRN capability. Will my noble friend assure me that there are no plans to reduce its numbers either now, when its work for this country is absolutely critical, or in the foreseeable future?
Lord Astor of Hever
My Lords, my noble friend makes a very good point. I also pay tribute to her for her very strong support for the RAF Regiment over many years. We have announced changes to the number of RAF Regiment field squadrons from 2015 onwards, at the end of operations in Afghanistan, and wider reductions in the overall size of the Royal Air Force that enable a rebalancing of its structure. Two force protection wing headquarters and two field squadrons will draw down over the coming years. However, even with this drawdown, we will continue to have a robust and effective force able to support all future operational requirements, including CBRN protection.
Viscount Slim
My Lords, is the noble Lord aware that some years ago, the noble Earl, Lord Attlee, and I spent some hours during the night with the Royal Air Force Regiment in Afghanistan observing its infantry and patrol tactics? It showed the very highest level of operational expertise, and the Government should in no way weaken the Royal Air Force Regiment.
Lord Astor of Hever
My Lords, I very much take the noble Viscount’s point and quite agree that the RAF Regiment is playing a very important role. I was in Afghanistan the week before last and saw for myself the important role that it is carrying out.
Public Disorder: Compensation
(12 years, 9 months ago)
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Lord Naseby
To ask Her Majesty’s Government what proportion of victims of the 2011 summer riots are still awaiting compensation, and what action they propose to take to deal with the situation.
The Minister of State, Home Office (Lord Henley)
My Lords, around 90 per cent of businesses and individuals affected by the riots were insured and the majority have received full or part payment. For those without insurance, the Government set up a claims bureau to manage their claims under the Riot (Damages) Act 1886. As of February 2012 over half of all valid uninsured claims have been settled.
Lord Naseby
My Lords, the position on dealing with the domestic claims seems to be pretty reasonable. On the business side, however, the position is not quite so healthy. In particular, is my noble friend aware that the Riot (Damages) Act 1886 requires the police to clear with the insurers that it was technically a riot before full payment can be made? To the best of my knowledge that has not happened yet. Secondly, there is no provision in the Act for payment for business interruption. Finally, the businesses that have suffered greatly have to seek planning permission for rebuilding. Can my noble friend ensure that the police act under the 1886 Act; that some help is found for those who have suffered from business interruption; and that local authorities are asked to speed up the planning process and not charge any of those who apply for such planning permission?
Lord Henley
My Lords, my noble friend has asked quite a number of questions. Although I can assure him that we have urged the police authorities to ensure that compensation is paid as swiftly as possible to all those who are entitled, we want to make sure that it is paid only to those who are entitled. He is right to address the point that the 1886 Act—which, obviously, was passed some time ago—does not cover business interruption. That is why we think that there should be a review of the Act, and we will consider all options in due course. As I stressed earlier, we believe that some 90 per cent of those who suffered, whether businesses or otherwise, had insurance, and as likely as not that insurance would have included business interruption. The 1886 Act comes from another era when these matters were not considered. As for the planning point, I will take that on board and consult colleagues in the Department for Communities and Local Government.
Baroness Sherlock
My Lords, I declare an interest as a member of the Riots Communities and Victims Panel. The Minister has just told the House that 90 per cent of individuals making claims to insurance companies have been paid, and the Association of British Insurers has a similar figure—85 per cent—for small businesses, and yet only half of those claiming under the RDA have been paid. Can the Minister account for the difference? Does he think there is any truth in the rumour that the reason there is such a big difference is that police authorities are setting such a high standard for the evidential basis and the paperwork, which is way in excess of that required by commercial insurance companies? Does he think that that is causing the delay?
Lord Henley
My Lords, the noble Baroness makes a valid point, and I pay tribute to the work that she did earlier on these matters. However, it is also important to look at the fact that those who were not insured were the sort of people who probably did not have adequate records about what they had in their shops—and I am thinking particularly of shops—and one therefore needs to conduct the loss-adjustment process very carefully. As she will know, people often make what one might describe as overgenerous claims when they do not have the appropriate records of what they had in their particular shop or business, and those things need to be looked at carefully. However, as I made clear in my response to my noble friend, it is important that we make sure that the police deal with these matters as quickly as possible. That is what we have been urging them to do and that is why we have set in motion a number of measures to speed up the process.
Lord Elystan-Morgan
My Lords, can the Minister assure the House that in the review of the 1886 Act not only will great effort go into defining the categories of claimants and types of claim but anxious thought will be given to the most central and existential question of whether it should be police authorities that bear the full responsibility for such damages, bearing in mind that the society in which we now live differs very greatly from that of 1886?
Lord Henley
My Lords, when I first answered this Question I was keen to emphasise that it was an 1886 Act. For that reason, the noble Lord is right to emphasise that we are in a very different world from 1886—it is now 125 years on from that date. All I can say about the review is that we will consider all options for reform. Perhaps I may give just one example. The 1886 Act, quite obviously, did not look at damage to motor vehicles, for the very simple reason that they did not exist in 1886.
Lord Cotter
My Lords, setting aside the issues about loss adjusters and suchlike, did not the Government announce in August that there would be £20 million to support small businesses and help them with minimum bureaucracy? Although these issues are being followed up, is it not very unsatisfactory that, in the mean time, this fund has not been dipped into sufficiently quickly? Exactly how much has been paid out under that fund?
Lord Henley
My Lords, I cannot answer my noble friend’s point absolutely but I can say that the Government have made payments of over £71 million to police authorities in respect of both operational costs and riot damages claims. Obviously, as I have been trying to make clear in the course of this Question, we are concerned about the speed which this has been dealt with. That is why we have been urging the police authorities to deal with these matters as quickly as possible. I can give an assurance to my noble friend that, on top of that, my right honourable friend the policing Minister has seen representatives of both the policing authorities and the insurance companies to make sure that these matters are dealt with as quickly as possible.
Planning: Ancient Woodland
(12 years, 9 months ago)
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Lord Redesdale
To ask Her Majesty’s Government what plans they have to improve ancient woodland protection in the final version of the National Planning Policy Framework.
Earl Attlee
My Lords, ancient woodland and the substantial contribution it makes to our environment is very important to the coalition Government. We will reflect this importance in the final version of the National Planning Policy Framework, but noble Lords will understand that I cannot anticipate its content before it is published.
Lord Redesdale
My Lords, I thank the Minister for that reply. However, there is a great deal of concern that the caveat placed on the value of economic development as a reason for granting planning permission could be seen as a worry, especially as it is sometimes quite difficult to put an economic value on ancient woodland, which is clearly irreplaceable. Secondly, has the Minister considered dipping into his own pocket and contributing to the Woodland Trust’s Jubilee Woods campaign? It includes a copse for parliamentarians. Perhaps I may add before the noble Lord, Lord Berkeley, laughs that I am sure that he will be contributing as well.
Earl Attlee
My Lords, the first point is that no economic value can be put on ancient woodland, because it is irreplaceable. The consultation draft framework maintained a strong protection but, as with current policy, it did not entirely close the door on any loss of ancient woodland. For example, a loss might be justified where a local highway authority wants to make a road junction improvement to save lives. However, as we are carefully considering all the responses on this policy, I am not going to speculate about the content of the final framework.
The Earl of Clancarty
My Lords, will the Minister take note that the destruction of ancient woodland is not just a threat but a reality as, appallingly, we have lost 111 such areas in the past 10 years? Will he also take serious consideration of the wider picture of the potential loss to development of large areas of important woodland through council sell-offs, such as, indeed, the recent decision by Somerset County Council to sell a sizeable area of the Quantocks, a decision which many hope will be reversed—land which Wordsworth and Coleridge once roamed across and the public have had access to for a very long time?
Earl Attlee
My Lords, the noble Earl refers to incidents affecting ancient woodland. That was an incident of ancient woodland being taken but I suspect that it does not necessarily mean that the whole of the wood has been taken. When ancient woodland is sold, perhaps by a local authority, it does not alter the need to obtain planning consent for any development; and as noble Lords know, it is very difficult to get planning consent if it involves taking ancient woodland.
The Lord Bishop of Newcastle
My Lords, trees and woodlands are enormously important to us and to the future of our world, and the tree planting scheme to mark the Diamond Jubilee is yet one more example of that. However, can the Minister assure me that within the National Planning Policy Framework there will be proper protection for undesignated trees and woodland areas and an encouragement to create more community-owned woodlands in this country?
Earl Attlee
My Lords, I am sure that there will be protection for undesignated woodland. However, the point is that there is very strong protection for ancient woodland because it cannot possibly be replaced or replicated.
Baroness Royall of Blaisdon
My Lords, as the Minister will know, the provisional ancient woodland inventory of England and Wales was prepared by the Nature Conservancy Council and is now commonly referred to as the provisional ancient woodland register. Is he satisfied that the ancient woodland register, being provisional, is an adequate basis for the protection purportedly afforded ancient woodlands by paragraph 169 of the NPPF?
Earl Attlee
My Lords, I am satisfied that the NPPF will protect ancient woodland.
Lord Tope
My Lords, the Minister has said that he will not speculate on the content of the final version. Can he tell us when our speculation will end, when it will be published and when we can judge for ourselves whether the final version of the NPPF gives equal weight to longer-term environmental and social concerns, as it undoubtedly will to more immediate demands for economic growth?
Earl Attlee
My Lords, the short answer to my noble friend is: the end of the month.
Lord Brooke of Alverthorpe
Like other noble Lords I have been waiting patiently for the noble Earl to respond to the other question from the noble Lord, Lord Redesdale, about whether he will contribute to the fund that has been established.
Lord Hylton
My Lords, in the present economic situation, would the Minister not agree that British woodlands and forests should be developed in the most commercial way possible while making allowances for ancient woodland? Does he also agree that such woodlands can be treated as quite small areas, rather like sites of special scientific interest?
Earl Attlee
My Lords, all noble Lords understand the environmental benefit of ancient woodland, but it has some commercial benefit as well. Interestingly, hardwood production in the UK amounts to half a million tonnes and total softwood production is 9.5 million tonnes.
Lord Phillips of Sudbury
My Lords, I should perhaps declare that I own a small tract of ancient woodland in south Suffolk. Given the increasing recognition of the revitalising influence of woodland in an increasingly denatured culture, are the Government sympathetic to trying to encourage the laying down of new deciduous woodland?
Syria
(12 years, 9 months ago)
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Lord Chidgey
To ask Her Majesty’s Government what plans they have for providing humanitarian aid and security assistance to help relieve the unfolding crisis in Syria.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, we continue to fund humanitarian organisations working in the region to provide help to those in need and have already given £2 million to that effect. We have also increased core funding significantly to humanitarian agencies this year to cover their ongoing work. The stabilisation unit operated jointly by the Foreign and Commonwealth Office, the Department for International Development and the Ministry of Defence is looking at what future support Syria might need from the UK and the international community to make a political transition to an open, democratic and stable state. It has also organised the recent deployment of an expert team to the region to collect evidence of human rights violations and atrocities committed by the Syrian regime.
Lord Chidgey
I thank my noble friend for that full reply. However, following reports on Australian television by the director of Human Rights Watch, Nadim Houry, confirming that the Syrian army is now sowing landmines along its borders directly in the path of fleeing refugees, threatening yet another atrocity, will the Government redouble their efforts to persuade other nations, particularly Russia, China and Turkey, to try to press Assad into allowing independent observers into Syria? As an extension to my noble friend’s Answer, will he give me more detail on timing in relation to deploying the stabilisation unit and security resources when the transitional period has started?
Lord Howell of Guildford
My noble friend is quite right. Access for independent observers or, indeed, access for humanitarian relief is the problem in this very dangerous situation. We have been working hard at the United Nations. My right honourable friend the Foreign and Commonwealth Secretary has been working extremely hard and taking the lead in trying to persuade Russia and China to take a more positive and co-operative attitude in all aspects, including, of course, getting a more effective UN resolution forward which would, we hope, increase the heat and pressure on Mr Bashar al-Assad. That is what is going on at the moment.
As for the mine situation, I have seen the reports of mines being laid. Syria is not—regrettably but perhaps not unsurprisingly—a signatory to the international prohibitions against land mines. This is yet one more area where we will increase to the maximum volume and ability our pressures on the Syrian regime to behave in a less uncivilised and more understanding way.
Lord Hannay of Chiswick
The Minister referred to the human rights mission that has been sent to the region. Would the Foreign Office classify decisions by the Syrian regime to prevent humanitarian access to the areas that need it most as a breach of international humanitarian law which may, one day, need to be prosecuted by the International Criminal Court?
Lord Howell of Guildford
That is certainly possible. The position vis-à-vis the International Criminal Court is that the commission of inquiry of the UN, as I think the noble Lord will know, clearly stated its concerns that crimes against humanity have been committed in Syria and that this may be a matter for the International Criminal Court. The United Kingdom will not rule out referral to the International Criminal Court, as suggested by Mrs Pillay, the human rights commissioner. The COI report does not specifically recommend a referral to the court, nor does the Human Rights Council have the power to refer cases. It would be for the UN Security Council to refer the situation in Syria to the ICC prosecutor. That is the formal position and I must stick closely to those words about it.
Baroness Symons of Vernham Dean
My Lords, is not the difficult thing that human rights abuses are being carried out every day? Does the noble Lord have any information about the appalling report that boys over the age of 11 are being arrested and face a very uncertain and horrible future in the city of Homs? Does he agree that, without the courageous reporting of people like the late Marie Colvin, we do not have the information on a day-by-day basis? We have it only retrospectively. What we need to know is what is happening while it is happening. Can the Minister give us any information about what our colleague, the noble Baroness, Lady Amos, has been able to say following her visit to President Assad?
Lord Howell of Guildford
I have to agree with almost all that the noble Baroness says. Our friend, the noble Baroness, Lady Amos, has, indeed, been there and did get some access to Baba Amr. She has reported back to the United Nations in very grim terms about what she found; practically every building had been destroyed. As for the other news we get— inevitably not directly because of the access problem and the fact that not a single journalist alive remains in the area—that may well be true. There are clearly horrific events and horrific murders and atrocities taking place. Not every one can be corroborated, but it is unquestioned that there are evil doings almost beyond the power of words being conducted in the name of the Syrian Government and perhaps on the opposition side as well. These are revolting events and in due course I hope all responsible will be held to account for them properly.
Lord Wright of Richmond
Can the Minister confirm that the Government still support the efforts by the former United Nations Secretary-General, Mr Kofi Annan, to bring a peaceful solution to the crisis in Syria? I am delighted to hear from the noble Lord that we are channelling our assistance through international organisations and humanitarian organisations. Does he agree that we should also be sure that any assistance given to Syria does not complicate the mission of Mr Kofi Annan?
Lord Howell of Guildford
My Lords, I am sure that that approach is right, but the difficulty is, as Mr Kofi Annan himself has found in his most recent discussions with Bashar al-Assad, that the Syrian President seems very reluctant to move from his present policy of giving certain reassurances while the violence and killing carry on. That is the difficulty. As the noble Lord knows, Mr Lavrov was there, accompanied by other senior Russian officials. They thought that they could get some undertakings from Bashar al-Assad; and, indeed, words were given. However, even while they were speaking, the killing was continuing. So I am afraid that at the moment, while one appreciates that there has to be a twin track of trying to get this man, this president, to desist from his all-out violence of the most atrocious kind, all efforts by Kofi Annan and others have so far not proved successful. This remains the line to go forward. We are working with the Russian and Chinese officials and ambassadors, and with the United Nations, to make them see that we must have a combined approach.
Baroness Falkner of Margravine
My Lords, does my noble friend agree that in bringing Russia to the table it is important to recognise that Saudi Arabia’s and Qatar’s attempts to arm the rebels will only prolong the conflict, not help to bring it to an end? Does he further agree that Russia’s long-standing animosity to Saudi Arabia, not least as regards Afghanistan, will not make it come to the table unless we reduce the arms and hostility going into the conflict from other players?
Lord Howell of Guildford
My noble friend may be right. The Arab League as a whole has taken a strong lead. Some members of the Arab League—my noble friend mentioned Qatar and Saudi Arabia—say that they want to go further and provide arms. We are not sure at this moment whether they are doing so. They may have a case for taking that action in particular areas. However, our general approach is the same as that of my noble friend. We believe that the best course is to try to get peaceful transition, to get both sides to desist from the killing, and particularly and obviously to get the Syrian Government to desist from their atrocious and murderous attacks on communities in Homs and other cities. That must be the approach. Pouring in arms on a large scale would certainly not help.
Companies Act 2006 (Amendment of Part 23) (Investment Companies) Regulations 2012
Baroness Wilcox
That the draft regulations and orders be referred to a Grand Committee.
Health and Social Care Bill
(12 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
15:31 - Division on Amendment 292 - Ayes: 187 / Noes: 244 - Amendment 292 disagreed.
16:55 - Division on Amendment 292A. - Ayes: 196 / Noes: 253 - Amendment 292A disagreed.
18:07 - Division on Amendment 300A - Ayes: 178 / Noes: 237 - Amendment 300A disagreed.
Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall speak also to the other 41 amendments in this group, some of which, I stress, are minor, technical or consequential.
Part 9 establishes the information centre in primary legislation, setting out its powers in relation to the collection, analysis, publication or dissemination of information. Several noble Lords, as well as the British Medical Association and the NHS Future Forum, have expressed a keen interest in the need to ensure an appropriate balance between the protection of patient information and the use and sharing of information to improve patient care. For example, I recall that the noble Baroness, Lady Wheeler, stressed the need to provide,
“safeguards that are strong enough to protect patients”.—[Official Report, 21/12/11; col. 1802.]
She is, of course, absolutely right. We are sensitive to these concerns.
Your Lordships have already approved amendments that raise the threshold required for the board and CCGs to disclose personal information. Government Amendments 268, 280 to 282, 284, 285 and 287 to 289, which are supported by the BMA, further strengthen the protections in the Bill in relation to confidential personal information. Government Amendment 268 would in effect restrict the bodies that are able to request the centre to collect confidential personal information to the principal bodies—that is Monitor, NICE and the CQC—or any other body prescribed in regulations. It also restricts the making of such requests to a person to whom information may be lawfully disclosed—for example, because they have obtained consent or have a power in statute to require such disclosure—or where the information may be lawfully disclosed to the centre.
Government Amendment 272 limits the circumstances in which the information centre may require provision to it of confidential personal information. Government Amendments 280, 281, 282, 284, 285, 287 and 288 clarify when dissemination by the information centre of information which identifies or enables the identity of an individual to be ascertained would be permitted, and when the information centre may be directed to disseminate or not to disseminate information. Government Amendment 289 would require the information centre to publish a code of practice for health or social care bodies or anyone providing publicly funded health or social care on how to deal with person-identifiable or other confidential information.
We believe these amendments strike the right balance between appropriately protecting an individual’s confidential personal information and ensuring that the wider benefits of safely and securely sharing information, which include improvements in the quality of services and treatments, can be realised. There are also a number of minor and technical amendments to improve the drafting of the clauses and to ensure that they can be effectively exercised in practice.
Government Amendments 291A to 291D and 297A to 297D are intended to provide a further degree of future-proofing to ensure that the exact requirements for the future development and delivery of informatics systems to support the health and care sector can be met. Last week, my right honourable friend the Secretary of State for Health highlighted our approach for delivering informatics systems in the future. We intend that the board and the Secretary of State will be supported in the management of informatics systems and services by a lean delivery organisation that will take over from NHS Connecting for Health from April 2013. We are currently looking at where these delivery functions will sit, with the information centre as an option to house some or all of this work. These amendments would enable provision to be made so that the centre could exercise the functions of the Secretary of State or the board in relation to delivering these systems. The amendments will also help to future-proof the legislation so that the provisions can support a more flexible, agile approach to delivering informatics systems in the future. I beg to move.
Baroness Wheeler
My Lords, I welcome and support the government amendments in this group. In Committee, I stressed our strong support for placing the Health and Social Care Information Centre on a firmer statutory footing and replacing the current special health authority. The centre, male-midwived by my noble friend Lord Warner, as he put it, was set up by the Labour Government and has enjoyed a large measure of success, particularly in developing the bedrock quality improvement initiatives in the NHS. I stressed then that if we are able to get the patient confidentiality issues right, the UK has a huge opportunity to lead the world in health research.
The government amendments go a long way towards meeting the concerns expressed by me and other noble Lords on safeguarding patient confidentiality and the need to place a greater emphasis on obtaining consent from the patient when this information is collected or published. The information centre now has to obtain consent before it publishes information that could identify a person.
The new clause in Amendment 268, in particular, which establishes what type of information is confidential and how the information centre must deal with information, is a major step forward, as is the new clause outlined in Amendment 289 requiring the information centre to develop a code of conduct on confidential information.
The noble Earl quoted me from Committee stressing the need for safeguards that are strong enough to protect patients. As that is the first time that I have ever been quoted by the Government, I think I can legitimately claim credit for the subsequent amendments. The extra safeguards to protect patients—for example, detailing when the Secretary of State can request information and who can request the information centre to collect information, and ensuring that consent must be obtained where the information is deemed confidential—are all vital to ensure public and patient confidence that information will be properly acquired, stored, used and published.
We also strongly support Amendment 268, limiting the range of bodies that can request that the information centre collect personal or confidential information to principal bodies, such as Monitor, CQC or NICE, which are able to make a mandatory request because they have obtained consent and have the power under statute.
On the code of conduct, I hope that the noble Earl will assure us that there will be widespread consultation on the development of a code. I should also be grateful if he could reassure the House that the code will provide further detail about the proposed mechanisms that the centre will need to obtain the consent of patients. It is obviously important that we get this issue right. What will be the process for obtaining consent where people are unable to provide it—for example, patients who are unable to make decisions for themselves under the Mental Capacity Act 2006?
Finally, the Government’s Statement in the House on 6 December on UK life sciences announced their intention to share much more patient information with the private and independent sectors in an anonymised form to aid medical research and development. I believe that there are to be discussions with the BMA and other appropriate organisations on that matter to ensure strict safeguards that will instil public confidence. We particularly want to be clear how the Government will judge to which companies they will make that information available and what criteria they will use in those circumstances. I should be grateful if the Minister could update the House on progress on that issue.
Earl Howe
My Lords, I am very grateful to the noble Baroness for her broad welcome for this group of amendments. She is absolutely right: they improve the provisions for patient confidentiality and, at the same time, the sharing of information where that is appropriate. I also welcome her endorsement of our approach to the information centre, which, as she rightly said, was set up under the previous Government and, we believe, has proved its worth in the mean while.
She asked a number of questions. On the first one, relating to consultation, yes, we will work with a range of groups in developing the code and will publish proposals in due course. On her other questions about the mechanisms for consent and obtaining consent from patients who are unable to give it because of mental incapacity, I hope that she will allow me to write a letter to save the time of the House but also because I want to get my answers absolutely correct, and I fear that I would leave important things out if I tried to answer her now.
Baroness Wheeler
My Lords, before the noble Earl sits down, what about the point relating to UK life sciences and the information given to the private and independent sectors?
(a) it is made by a principal body, and(b) the body considers that the information which could be obtained by complying with the request is information which”
“(i) the code of practice prepared and published by the Centre under section (Code of practice on confidential information), and(ii) ”
“Requests for collection under section 254: confidential information
(1) A request under section 254 is a confidential collection request if it is a request for the Information Centre to establish and operate a system for the collection of information which is in a form which—
(a) identifies any individual to whom the information relates who is not an individual who provides health care or adult social care, or(b) enables the identity of such an individual to be ascertained.(2) A person may make a confidential collection request under section 254 only if the request—
(a) is a mandatory request,(b) relates to information which the person making the request (“R”) may require to be disclosed to R or to the Information Centre by the person holding it, or(c) relates to information which may otherwise be lawfully disclosed to the Information Centre or to R by the person holding it.”
“(2A) But the Information Centre may not impose a requirement under subsection (1)(a) for the purpose of complying with a confidential collection request falling within section (Requests for collection under section 254: confidential information)(2)(c).
(2B) In such a case, the Information Centre may, however, request any person mentioned in subsection (2) to provide it with any information which the Centre considers it necessary or expedient for the Centre to have for the purpose of complying with the request.”
“( ) If the Information Centre considers it appropriate to do so, the Centre may make a payment to any person mentioned in subsection (2)(b) who has provided information to the Centre pursuant to a request made under subsection (2B) in respect of the costs to that person of doing so.”
(i) the relevant person has consented to the dissemination, or(ii) ”
“( ) the information is in a form which identifies any individual to whom the information relates who is not a relevant person or enables the identity of such an individual to be ascertained and the individual has consented to the dissemination;”
“(3A) The Information Centre may also disseminate, in such form and manner and at such times as it considers appropriate, any information which it collects pursuant to a direction under section 253 or a request under section 254 (whether or not it falls within subsection (2)) to any person to whom the information could have been lawfully disclosed by the person from whom the Centre collected the information.
(3B) The Information Centre may also disclose information which it obtains by complying with a direction under section 253 or a request under section 254 (whether or not it falls within subsection (2)) if—
(a) the information has previously been lawfully disclosed to the public,(b) the disclosure is made in accordance with any court order,(c) the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual,(d) the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person conferred under or by virtue of any provision of this or any other Act,(e) the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or(f) the disclosure is made for the purpose of criminal proceedings (whether or not in the United Kingdom).(3C) Paragraphs (a), (b) and (f) of subsection (3B) have effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure.”
“( ) For the purposes of this section and section (Dissemination: directions under section 253 and requests under section 254) the provision by the Information Centre of information which it has obtained by complying with a direction under section 253 or a request under section 254 to the person who gave the direction or made the request is to be treated as dissemination by the Centre of that information to that person.”
“Other dissemination: directions under section 253 and requests under section 254
(1) A direction under section 253 may require the Information Centre to disseminate information which it obtains by complying with the direction if the information falls within subsection (2).
(2) Information falls within this subsection if—
(a) the information is required to be published under section 258;(b) the information is in a form which identifies any relevant person to whom the information relates or enables the identity of such a relevant person to be ascertained and—(i) the relevant person has consented to the dissemination, or(ii) the person giving the direction, after taking into account the public interest as well as the interests of the relevant person, considers that it is appropriate for the information to be disseminated;(c) the information is in a form which identifies any individual to whom the information relates who is not a relevant person or enables the identity of such an individual to be ascertained and the individual has consented to the dissemination;(d) the Centre is prohibited from publishing the information only by virtue of it falling within section 258(2)(c) and the person giving the direction considers it would be in the public interest for the information to be disseminated.(3) A direction under section 253 may require the Information Centre to exercise—
(a) the power conferred by section 259(3A) in relation to information which it collects pursuant to the direction, or(b) any other power it has under or by virtue of any other provision of this Act (other than section 259(1) or (3B)) or any other Act to disseminate information which it obtains by complying with the direction. (4) A request under section 254 may request the Information Centre to exercise—
(a) the power conferred by section 259(1) or (3A) in relation to information which it obtains by complying with the request, or(b) any other power it has to disseminate such information under or by virtue of any other provision of this or any other Act.(5) A direction under section 253 may require, and a request under section 254 may request, the Information Centre not to exercise the power conferred by section 259(1) or (3A) in relation to information which it obtains by complying with the direction or request.
(6) Section 254(3) does not apply in relation to anything included in a mandatory request by virtue of subsection (4) or (5).
(7) A requirement imposed on, or a request made to, the Information Centre in accordance with this section to disseminate information may include a requirement or request about the persons to whom the information is to be disseminated and the form, manner and timing of dissemination.”
“Code of practice on confidential information
(1) The Information Centre must prepare and publish a code in respect of the practice to be followed in relation to the collection, analysis, publication and other dissemination of confidential information concerning, or connected with, the provision of health services or of adult social care in England.
(2) For the purposes of this section “confidential information” is—
(a) information which is in a form which identifies any individual to whom the information relates or enables the identity of such an individual to be ascertained, or(b) any other information in respect of which the person who holds it owes an obligation of confidence.(3) Before publishing the code, the Information Centre must consult—
(a) the Secretary of State,(b) the Board, and(c) such other persons as the Centre considers appropriate.(4) The Information Centre must not publish the code without the approval of—
(a) the Secretary of State, and(b) the Board, so far as the code relates to information concerning, or connected with, the provision of NHS services.(5) The Information Centre must keep the code under review and may revise it as it considers appropriate (and a reference in this section to the code includes a reference to any revised code).
(6) A health or social care body must have regard to the code in exercising functions in connection with the provision of health services or of adult social care in England.
(7) A person, other than a public body, who provides health services, or adult social care in England, pursuant to arrangements made with a public body exercising functions in connection with the provision of such services or care must, in providing those services or that care, have regard to the code.”
“( ) For the purposes of this section, a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service in England or (as the case may be) with what otherwise appears to the Secretary of State to be the purpose for which it is conferred.”
“(d) requiring the Centre to exercise such systems delivery functions of the Secretary of State or (as the case may be) the Board as may be specified.”
“( ) A function required to be exercised by a direction given by the Secretary of State or the Board by virtue of subsection (1) is subject to directions given by the Secretary of State or (as the case may be) the Board about the exercise of the function.”
“( ) A power conferred on the Secretary of State under subsection (1)(d) must provide that a direction may include provision about payments by the Secretary of State to the Information Centre for things done in the exercise of the function in respect of which the direction is given.
( ) A power conferred on the Board under subsection (1)(d) must provide that a direction must permit the Information Centre to charge the Board a reasonable fee in respect of the cost of complying with the direction.
( ) A power conferred under subsection (1)(d) must provide that the giving of a direction does not prevent the Secretary of State or (as the case may be) the Board from exercising the function in respect of which the direction is given.”
““systems delivery function”—
(a) in relation to the Secretary of State, means a function of the Secretary of State which is exercisable in relation to the development or operation of information or communications systems in connection with the provision of health services or of adult social care in England;(b) in relation to the Board, means a function of the Board which is exercisable in relation to the development or operation of information or communications systems in connection with the provision of NHS services.”
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, this returns us to a debate that we had in Committee on the future of the National Patient Safety Agency. I am a former chair of the National Patient Safety Agency, which was established following work by the former Chief Medical Officer, Liam Donaldson, looking at the experience of the airline industry, which over the years has developed a very effective system of learning from mistakes.
In the airline industry, airline pilots have the confidence to report near misses and other incidents because that is done on the basis of no recriminations. The evidence from those reports is put together to help the airline industry to become safer and it has been outstandingly successful over the years. That was the intention of the National Patient Safety Agency. It undertakes many roles but the core role is the national reporting and learning system which is aimed at carrying out the same process as in the airline industry.
Lord Warner
My Lords, I support my noble friend’s amendment. As a Minister, I, too, had responsibility for the NPSA and I was responsible when we introduced the reporting system. It is easy to forget how difficult it was to secure agreement across the NHS to that reporting system. There was a great deal of nervousness about it and it has certainly taken time to build up the confidence, across the country, that ensures that most service providers are now engaged with reporting these incidents. If we put that reporting system under a powerful body that is responsible for commissioning, there is a real danger about maintaining the support for the level of reporting that we have achieved. There is a risk that, without a few more safeguards in the arrangements, we may see a dropping off in the reporting of those incidents. Providers will be nervous about how commissioners will interpret the reporting of those incidents. That is the nub of the issue. I think we have a real problem about how we can carry on building on the good work done by the NPSA on that reporting system and ensuring that we continue to give confidence to the NHS to report these incidents in the service of the greater good. I am interested to hear what the Minister has to say about protecting the gains that we have made so far in this area.
Baroness Finlay of Llandaff
My Lords, I speak in support of what has been said by the noble Lord, Lord Warner. There is real anxiety that people will be frightened to admit to and report errors, if they feel that that could threaten, in any way, the contracting of the service that they are working in. Who in the new system will be responsible for rolling out training that has come from the cataloguing and analysis of problems, and how will the lessons learnt in devolved nations be fed into the system for the UK as a whole. Indeed, how will lessons learnt in England be fed out to the devolved nations?
Lord Patel
My Lords, I speak as somebody who has been involved with the National Patient Safety Agency for longer than the noble Lord, Lord Warner, as a Minister, or the noble Lord, Lord Hunt, as its chairman, as I chaired it for four years. What is important is that the National Patient Safety Agency, as it is currently, has been unable to be effective. It has not been effective because it is not mandatory to adopt, implement or use the learning produced from the reports it receives from all healthcare providers on systems failures that may cause harm to patients. I hope that the Minister will reassure us that whatever the new arrangements are, the learning produced from systems failures will be implemented, or will be expected to be implemented.
I do not know whether the Commissioning Board is the ideal place for it—I understand that it is taking over the group that looked after the analysis of the reports. Therefore, it will be its task to disseminate all the learning that comes from it. The actual collection of information or data will be outsourced on a contractual basis to Imperial College. Perhaps the Minister will comment on that. The important issues are that the information on systems failure is collected and that the lessons learnt are available to all those who commission and provide healthcare. They must be implemented.
Earl Howe
My Lords, I hope it goes without saying—I think that all noble Lords would agree—that patient safety has to be the key priority for all those working in the health service. We cannot allow it to be an add-on or an afterthought. For that reason, the Bill puts safety at the heart of the NHS, not at arm’s length. Currently, the National Patient Safety Agency’s core function is to improve the safety of NHS care by promoting a culture of reporting and learning from adverse events. It does that, as the noble Lord, Lord Hunt, rightly mentioned, through its national reporting and learning system. As noble Lords are aware, it is our intention that Clause 22, or new Section 13Q, will give the NHS Commissioning Board responsibility for this function, including the collection of information about patient safety incidents, the analysis of that information and the sharing of the resulting learning with providers of NHS care—those who contract with clinical commissioning groups or directly with the board.
The noble Lord, Lord Hunt, asked whether it was sensible to do as we propose. Safety is, of course, a key domain of quality and we believe that the board, as the body legally responsible for ensuring continuous quality improvement in the NHS, will be best placed to drive a powerful safety agenda through the NHS. The board will use its leadership, expertise and oversight of the system, including oversight of the national reporting and learning system, to lead continuous quality and safety improvement. Its unique perspective would allow it to ensure that appropriate levers are used to drive safety improvement across the system, based on the needs of the NHS. Embedding safety across the system is vital to increase the pace of development, and it is the intention that the patient safety function will be conferred on the shadow body—the NHS Commissioning Board authority—in June of this year.
It is intended that the operational management of the NPSA’s national reporting and learning system will transfer on a temporary basis to Imperial College Healthcare NHS Trust on 1 April 2012. From April, Imperial College will manage the team responsible for the existing NRLS function for a temporary period of two years. During the two-year period a full tendering process will be developed by the NHS Commissioning Board that is intended to identify the future specification of requirements for a national system to capture and analyse patient safety incident data.
Within the board there will be a patient safety team of around 40 staff led by the director of patient safety and bringing together policy, insight, advice and guidance. The arm’s-length bodies review recommended the abolition of the National Patient Safety Agency. It made clear that the agency’s functions, while necessary within a system supporting wider quality and safety improvement, did not need to be performed at arm’s length. For me, one of the key arguments for making this change is that the National Patient Safety Agency did not have the authority or position to exploit fully the information gained from the national reporting and learning system. In contrast, the board will have the necessary authority and be positioned at the very heart of the system, and therefore be better placed to lead and drive improvements.
The noble Lords, Lord Hunt and Lord Warner, questioned whether the board was actually the right body. I understand the noble Lords’ concerns regarding the independence of the NRLS, but I feel as well that the board will prove to do an excellent job. In particular, it is worth remembering the board’s specific duty with regard to this in new Section 13Q.
As regards conflicts of interest, the NPSA is not being placed within the Commissioning Board as an ALB organisation; it is being abolished. We are putting safety at the heart of the NHS. The NHS Commissioning Board will assume responsibility for securing some functions of the patient safety division of the NPSA relating to reporting and learning from patient safety incidents so that we can embed patient safety into the health service through commissioning and the contracts that commissioners agree with providers. If incident reports suggest that commissioning is the problem, this would be picked up by the system.
The noble Baroness, Lady Finlay, asked me what the proposals will mean in the context of the devolved Administrations. There is provision in the Bill for the NHS Commissioning Board to make information on reporting and learning available to others as it deems appropriate. Such information may be shared with devolved Administrations, and the board will have powers to enter into agreements with them to provide services.
The noble Lord, Lord Patel, asked who would be responsible for making the information available and acted upon. The board will have responsibility for provision of all appropriate guidance and advice. It is for the board to determine how best to ensure that this information is made available, particularly in the NHS. Clinical commissioning groups must have regard to that advice and ensure, through their contracts with providers or otherwise, that appropriate steps are taken to reduce risks and secure the safety of patients. The board would have to ensure that the advice and guidance that it provides is effective. The Bill also provides the board with the ability to deliver any of these functions through those that it considers best placed to maximise safety.
Patients rightly expect that any service provided through NHS funding will be safe, and making the board responsible for the key functions on safety will place responsibility for the safety of care where it should be—at the centre of the NHS. In saying that, however, I pay tribute to the positive contribution made by the National Patient Safety Agency and to make clear that its abolition is not at all to belittle its functions. It is, rather, a consequence of ensuring that vital functions are carried out in the best place in the new system. I believe that this is at the heart of the NHS—with the board—rather than at arm’s length.
I hope that I have sufficiently reassured the noble Lord, Lord Hunt, and that he will feel able to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I must say I am very uneasy because I think that the arm’s-length bodies review completely missed the point. It was my understanding that the NPSA itself was not charged with improving safety. The whole point about setting it up was to have an independent body to which people in the NHS could report adverse incidents. Information would then be used in different ways, first in the issuing of safety bulletins and reports on a pattern of safety incidents, which would improve safety in the health service. It was always the expectation that responsibility for safety rested with the health service and the regulator, CQC.
Baroness Greengross
“Human Rights Act 1988: provision of certain personal care and health care services to be public function
(1) A person who is commissioned to provide—
(a) personal care to an individual living in their own home, or(b) a health care service,shall be taken to be exercising a function of a public nature in providing such a service.(2) In subsection (1)(a) “personal care” in relation to England has the same meaning as in paragraph 2 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and in relation to Scotland has the same meaning as “personal care and personal support” as defined in section 2(28) of the Regulation of Care (Scotland) Act 2001 and section 1(1)(c) and Schedule 1 to the Community Care and Health (Scotland) Act 2001.
(3) In subsection (1)(a) and (b) “functions of a public nature” has the same meaning as in section 6(3) of the Human Rights Act 1998 (acts of public authorities).”
Baroness Greengross
My Lords, if I am a very frail, vulnerable, sick person in need of support or care, and I go into a residential home, my human rights will be protected. In this case, that means the right to dignity, respect, and privacy if I am having intimate care. If I have exactly the same needs and exactly the same services provided for me in my own home, my human rights are not protected. But I am the same person. My human rights now depend on whether I am down the road in a residential home or have the same services in my own home. That cannot be right. This amendment is designed to close the loophole in the law that allows this. It means that if a public body has arranged or contracted the service, it is a public function within the meaning of Section 6(3)(b) of the Human Rights Act, so it brings certainty that I will get my human rights protected. These are not controversial rights—it is just decent care.
We know that almost half a million older people receive essential care in their own homes, commissioned by their local authority in England, excluding the other devolved areas. Approximately 84 per cent of these people lack the protection of the Human Rights Act because their care is provided, as we now know, by private or third sector organisations. We received compelling evidence of the extent of human rights breaches in home care settings in the findings of the Equality and Human Rights Commission’s formal inquiry into the human rights of older people receiving home care. As the lead commissioner on ageing, I was part of that inquiry.
This amendment is supported by many organisations. Among them are Age UK, the British Institute for Human Rights, Disability Rights UK, the Equality and Diversity Forum, Justice, Liberty, Mencap, the Scottish Human Rights Commission and the Northern Ireland Human Rights Commission. In its report Implementation of the Right of Disabled People to Independent Living, published on 1 March 2012, the Joint Committee on Human Rights recommended that the Health and Social Care Bill should be amended in this way.
My understanding, however, is that while the Government have no argument with the view that the Human Rights Act should apply to private and third sector organisations providing publicly commissioned home care, it seems that they consider that the law provides this coverage already and that this amendment is therefore unnecessary. I share the commission’s view that private providers of services, under arrangements made with the relevant statutory bodies under the NHS Act as amended by the Bill, will not necessarily continue to be carrying out a function of a public nature. The Equality and Human Rights Commission feels that the Department of Health’s analysis of current case law is a bit overoptimistic. Were this question to be determined by a court, the outcome could not be predicted with any certainty.
I want to thank the Minister for giving a huge amount of his time and consideration to these issues. I know that he is wholeheartedly in support of the principles behind my amendment. It is plain that he has an undoubted commitment to avoiding human rights abuses in health and care settings. However, the fact remains that any relevant assurances that he might give us, while very welcome, must fall short of providing the urgent legal clarity about the scope of the Act that I believe to be very important. They would not provide service users with clear legal redress for human rights abuses or breaches, or give providers an immediate legal incentive to apply human rights standards to service delivery.
I am not suggesting that legislative provisions are the only guarantee of human rights protection, but I would argue that they are an important part of the solution. I recognise that, going forward, the Government’s policy agenda could—and, I hope, will—provide opportunities to embed more effectively a human rights approach in health and social care. Seeking change in service culture and practice of services is very important. However, while these policy opportunities are very worthy of consideration, closing this legal loophole would put down a clear legal benchmark that would positively help to build cultural change in the health and social care sector. Such policies that the Government now have, however well-intentioned, are not a substitute for clear legal obligations under the Human Rights Act. Those would give individuals the right of redress against service providers for human rights breaches.
The Government might also have reservations that making express reference to human rights in a health context could cast doubt on other areas beyond health or social care where public services are provided by private bodies. However, I do not agree that a reference solely in health and social care would cast such doubts on other policy areas. Thinking about the operation of such a reference in reverse, it would be difficult to see how a specific reference in justice or education legislation could reasonably affect social care or healthcare.
In closing, I must reiterate that I feel that the law is not certain. In my view, the current legal position is evidently unsatisfactory. There may good arguments to support the view that providers should consider themselves bound by the Act and the duty. There are also legal arguments against that position. There is no way to predict what view a court might adopt. Support for this amendment will clarify beyond doubt the fact that a person commissioned to provide home-based social care or healthcare is performing a public function with the responsibilities that are within such a function and within the meaning of the Human Rights Act and the Equality Act. I hope that the Minister will find it possible to support this amendment. I beg to move.
Lord Rix
My Lords, I wish to support Amendment 292A, tabled by my noble friend Lady Greengross. As I am sure your Lordships will appreciate, I approach this issue from the perspective of people with a learning disability and would argue that the provisions of the Human Rights Act should be universally applied and not dependent as to whether an individual receives personal care in a residential setting or in their own home. Such a disparity is both unfair and unjustified, and it is right that we take the necessary steps to clarify matters.
For example, let me remind your Lordships of the appalling abuse highlighted by the BBC’s “Panorama” programme in May of last year. Winterbourne View, near Bristol, was a privately owned assessment and treatment centre where residents with a learning disability were subject to an horrendous culture of ongoing bullying combined with physical and psychological abuse.
I make reference to the abuse at Winterbourne View because, following an amendment in 2008 to the then Health and Social Care Bill, which is now the Act, the law was changed to ensure that care homes in the private and third sectors, when providing care that is publicly commissioned, were within the scope of the Human Rights Act. This was the correct step to take and ensures that all legislation, regulations and guidance regarding personal care which is publicly commissioned and provided for in residential settings is underpinned by the tenets of the Human Rights Act.
For those who face the ongoing consequences of prejudice and discrimination every day of their lives—such as people with a learning disability—the Human Rights Act can have benefits that go well beyond the preconceptions of those who are eager to dismiss it as a dangerous irrelevance. However, while the individuals concerned who suffered abuse in Winterbourne View or any other residential setting are able to turn to the Human Rights Act in seeking recourse for what occurred, if a similar type of abuse happened while they were receiving publicly funded personal care within the parameters of their own home, it may be assumed by victims, local authorities and others that they would not be able to do so due to the lack of clarity. This is self-evidently a completely unacceptable state of affairs and we should not be willing to tolerate such an absurd inconsistency. I would also add that if the CQC had the resources to undertake a greater number of unannounced inspections in all residential settings, it would be easier to identify abuse at an even earlier stage.
When applying the Human Rights Act the principle question must be, “To what extent has an individual’s human rights been violated?”. It should not be, “Under what type of roof did the alleged abuse take place?”. In my view, abuse is abuse is abuse, and it is as simple as that. Respecting an individual’s human rights should be universally applied and not subject to arbitrary levels of determination, such as the situation in which we currently find ourselves.
The Government claim that the loophole does not exist and so there is no need for the matter to be clarified in the way that the amendment requires. What is not in doubt is that, under the current circumstances, it is explicit under statute that when receiving publicly funded personal care services in residential settings, an individual’s human rights can be upheld via the Human Rights Act. However, when that care is received in their own homes, the situation is much more ambiguous and less certain. Therefore, I remain hopeful that the support of Ministers for this amendment will be willingly and freely given.
Lord Low of Dalston
My Lords, I have put my name to this amendment because it seems very clear to me that we do need legislation to clarify the uncertain state of the law relating to the provision of health and social care services commissioned from the private and voluntary sectors. We know how we got to this point. Despite the intention of the then Government that responsibility under the Human Rights Act should generally follow the outsourcing of state functions, in the case of YL v Birmingham City Council the House of Lords held that a private company providing residential care under a contract with a local authority was not carrying out a public function for the purposes of the Human Rights Act. This human rights loophole was closed by Section 145 of the Health and Social Care Act 2008, but only for residential care services. The YL case did not directly deal with the question of health or home care services contracted out by the NHS or local authorities, so neither did the Health and Social Care Act 2008 in seeking to undo the YL decision. Thus there remains a lacuna in the law which needs to be addressed.
During the debates on this Bill in Committee, and in a subsequent letter to Peers, the noble Earl, Lord Howe, raised no objections to the Human Rights Act applying to home care provided by private and third sector organisations. Indeed, his letter maintained that publicly commissioned home care is already covered by the Act.
Similar considerations apply in relation to healthcare, because the current Health and Social Care Bill will mean more independent providers being commissioned to provide NHS services. In correspondence with the Joint Committee on Human Rights, the Government raised no policy objections to the Human Rights Act extending to outsourced NHS services. Indeed, here too the Government have indicated that providing outsourced NHS services already qualifies as a public function under the Human Rights Act, so there is no need for the law to be clarified.
The Equality and Human Rights Commission, after exhaustive legal analysis, has concluded that the matter is by no means so clear-cut. I have a detailed legal briefing here, but your Lordships will be relieved to hear that I do not intend to read it out.
Lord Low of Dalston
There speaks a lawyer. Suffice it to say that everything about the matter is extremely complex and open to question, interpretation or qualification. The YL case took many by surprise. It was hardly clear-cut—the Law Lords were split three to two. They used a factor-based approach to determining whether an organisation other than a public authority is performing functions of a public nature. However, it is fair to say that each and every one of the factors employed is hedged about with qualifications.
In support of its view on outsourced NHS services, the Department of Health cites the Weaver case, where the Court of Appeal decided—once more by a majority—that a registered social landlord was performing a public function when allocating and managing social housing. However, some legal commentators thought that this was a surprising decision too, because it sits oddly with the YL case. This again emphasises the ambiguity of the case law and indicates that the outcome of future cases cannot easily be predicted. Indeed, an opinion obtained by the EHRC from senior counsel suggests that the reverse is the case. After detailed legal analysis of the statutory framework and case law, counsel concluded that each aspect of the Law Lords’ negative reasoning regarding residential care in the YL case applies equally to the provision by private care providers of home care services.
Baroness Whitaker
My Lords, I declare an interest as a member the British Institute of Human Rights advisory board, and I apologise for my failing voice. I simply want to add to the very eloquent testimony we have heard so far that surely common sense suggests that an organisation which carries out a public service function that is mandated by a public body and takes public money for that function should be bound by the responsibilities of public service. If it is not, fellow citizens whose rights are abused—and as we have heard from the noble Lord, Lord Low, and others, this is not uncommon, particularly in old-age care—will have a lesser right of redress. Furthermore, and almost more importantly for the prevention of abuse, providers of this level of care will have little incentive to train individual carers in those notions of dignity and respect that we call human rights.
We have the Government’s response on the record in a letter to the noble Lord, Lord Lester, on 27 February, that all providers of publicly funded health and social care services should consider themselves bound by the Human Rights Act. The Government think that a court would find that the provision of publicly funded personal care at home is a function of a public nature. This is not the same as being legally binding and, perhaps more importantly, the references to “personal care only”—that is to say the all-important Article 8 right to private and family life—are not in the picture at all. So I hope that the Government will accept this amendment.
Lord Mackay of Clashfern
My Lords, in my view, the Human Rights Act applies already to the matters raised in this amendment. The reason for that is fairly straightforward. As your Lordships know, when the Human Rights Act was passed, many functions previously exercised by public authorities were by that time exercised by private individuals and companies. Therefore, the Human Rights Act contained the provision that public authorities should include those in respect of whom certain of their functions are functions of a public nature. That was deliberately adopted to deal with the situation where the public service was in fact given by a private individual or a private company that was not itself a public authority. For the purpose of enforcing the Human Rights Act, bodies that had as any of their functions a public function were responsible in respect of it as if they were a public body.
The case of YL has been referred to. That was not a health case but a case under the National Assistance Act where the local authority had put the lady into a private home. A majority of the House of Lords held that that was not a public function in respect of the private home. It was of course a public function in respect of the local authority, Birmingham City Council, but not in respect of the private home. The Government of the day decided to reverse that decision, not because they thought that the principles of the Human Rights Act should be altered but because they believed that the outcome in that case was wrong. That is what has happened in relation to that type of case, leaving untouched the general principles settled in the Human Rights Act itself.
At the time, the then Government decided to have a consultation on whether the Human Rights Act needed to be amended in some way to deal with these situations. The result of that consultation, so far as I understand, was that nothing needed to be done. The Government put forward an amendment in respect of the YL decision, whose introduction in this House was, I think, in the hands of the noble Baroness, Lady Thornton. In accordance with what the Government thought about the matter she said:
“Therefore, it remains the Government’s view that, in general, the provision of publicly arranged health and social care should be considered a function of a public nature. The Government will therefore continue to treat those exercising such functions as being subject to the Human Rights Act”—
and ever since that has been the position. She went on:
“I reiterate one important point from the letters. It remains the Government’s firm view that independent providers of NHS care under the National Health Service Act are, as the law currently stands, exercising a function of a public nature”.—[Official Report, 22/05/08; col. GC 632.]
That is to say that independent providers operating under the health service were carrying out a function of a public nature, and therefore the protection of the Human Rights Act applied.
In YL, Lord Bingham of Cornhill, who was one of the minority, expressed the matter in this way: he thought the answer to the question in that case was clear. Unfortunately, not everybody sitting in the case thought the same, but that was his answer. He said:
“When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case”,
which here is covered,
“by Section 6(3)(b)”.
In his opinion, that was the case in YL. Parliament has gone along with that in the amendment and has said that the minority in the YL case were correct. In particular, it has been affirmed that this applies to the Public Health Act.
Some of the situations that have been mentioned by those who support the amendment have occurred in private residential homes. That does not mean that the Act does not apply; it means that for some reason the Act was not observed in these homes. Sadly, that can happen anywhere in relation to the Human Rights Act. It does not mean that it does not apply; it just means that it has not been carried out.
This amendment is supposed to clarify the law. Your Lordships will notice that its heading states that it applies to certain parts of the health service: it is not in any way a universal provision. The heading states:
“Human Rights Act 1998: provision of certain personal care and health care services to be public function”.
It refers to certain services, not all. I submit that that applies to all in the light of the statute as I have explained it.
As I say, the amendment seeks to clarify the law and close a loophole. Unfortunately, when you start to investigate particular cases of this kind, you are apt to get into areas of risk. What happens if a lady who is getting personal care is staying with her daughter and is not in her own private home? This amendment would not apply to that situation. This is a very difficult area. Those who originally framed the Human Rights Act bore that in mind, and the Act was very carefully framed by the Labour Government of that day. My noble and learned friend Lord Irvine of Lairg was extremely careful in selecting the language that was used. As I said, in 2008, when the amendment was made in respect of the National Assistance Act, the position in relation to the health service was very clearly restated. I submit that this amendment is unnecessary, undesirable and risks not covering the whole of the National Health Service provision, as, indeed, it does not attempt to do.
Lord Lester of Herne Hill
My Lords, it is a privilege to act as junior counsel to a leader as distinguished as the noble and learned Lord, Lord Mackay of Clashfern. His speech makes it unnecessary for me to speak for long. I respectfully agree with everything that he has said but wish to add a few further points. I am very sorry to disappoint so many of my friends from civil society and their representatives whose eloquent speeches we have heard today. However, I do not think that there is a loophole and, if there were, I do not think that this amendment would remove uncertainty; it would, in fact, increase it.
I am particularly glad to say this in the presence of the noble Lord, Lord Wills. He will remember that he was Minister when I was trying, as a GOAT in the Brown Government—noble Lords will know what that means—to persuade his colleagues that we should do something about the YL problem by way of further legislation. Unfortunately, the previous Government were unable to muster support for that and the present coalition Government have given that general problem to the Commission on a Bill of Rights, on which I serve, as one of the issues to consider in the context of whether there should be a Bill of Rights for the United Kingdom. Therefore, the general problem is on the agenda of that commission. When it reports by the end of this year, the Government can then take stock of what to do about it.
As the noble Lord, Lord Low, indicated in his completely accurate account of some of the background, the origin of the problem lies in the majority decision of the Law Lords in the YL case. I believe that the majority in that case asked themselves the wrong question. Instead of asking how to apply the test in Section 6 of the Human Rights Act to cover private care homes, they said to themselves—and made clear—that it was somehow unfair to place greater obligations upon public sector bodies than private sector bodies. I think that was completely the wrong question and they were very bold in deciding not to follow Lord Bingham and the noble and learned Baroness, Lady Hale, whose speeches I found completely convincing in logic but also, more importantly, completely in harmony with the intentions of the legislation when it was enacted in 1998.
Lord Wills
My Lords, in supporting the amendment, I hope that it might be helpful to your Lordships’ House if I were to provide more background from the previous Government, for whom I shared ministerial responsibility in this area, as the noble Lord, Lord Lester, alluded to. I am privileged to follow him on this, because I have found so often in our past relationships that we share many common objectives but do not always agree on the best way of getting to them.
As we have heard, the problem that the amendment seeks to address arose unexpectedly from a decision in the House of Lords, narrowly decided by a majority of three to two, which removed from vulnerable people basic protections that until then had been widely assumed to be entrenched. The arguments for addressing this problem have been compellingly outlined by other noble Lords who have spoken in this debate. These arguments were clear to the previous Government. As the Minister responsible for human rights, I felt that the YL decision did not reflect what Parliament had intended. I will not go into that because the noble and learned Lord, Lord Mackay, has set out cogently exactly why that is the case. I felt that it would be necessary to legislate to put that beyond dispute.
However, as always, it was necessary within government to agree on the scope of any change and to find an appropriate legislative vehicle. As your Lordships well know, this can often take some considerable time. In 2008, the Health and Social Care Bill, as it then was, was the first opportunity that the previous Government could find to make some progress in putting right the consequences of the YL case. I will come back to this, but here I agree with the noble Lord, Lord Lester, that this was only a start and did not address the more fundamental problem that the case had thrown up. The change in the 2008 Act was narrow in scope. As we have heard, the changes were limited to residential care services. They did not address the status of health services or home care services that were contracted out by the NHS or local authorities, and contracting out is only likely to increase under the legislation being brought in by this Government. The previous Government ran out of time in making a settled decision on how best to go further. Sadly the noble Lord, Lord Lester, had decided to stop being a GOAT, even before that process was concluded.
Therefore, in the light of all this and the YL judgment, I am not sure why the noble Earl seems to believe that all care from all providers is now covered beyond dispute by the Human Rights Act. I should be grateful if the Minister could set out in detail why he believes that advice to the opposite effect—including, as I understand it, from counsel to the HRC—is wrong. Why is that advice wrong?
The Government also appear to be concerned that accepting the amendment might cause legal uncertainty in other areas outside health and social care. I understand these arguments. I heard them many times when I was in government, but such bureaucratic caution could be extended to arguing against ever legislating for anything. However, in this particular case, if the Government are seriously worried, I suggest to the noble Earl that they may be too late. The 2008 Act has already opened that door. The Government’s suggestion that all these services are already covered, whatever the legal status of that commitment by the Government, has opened the door still wider. The Minister would therefore be unwise to rely on their line of argument, if that is what he is tempted to do in resisting the amendment.
Lord Lester of Herne Hill
Can the noble Lord explain what is meant by “certain personal care”, which is unclear, and what is meant by a “health care service”, which is not defined in the Bill? He is saying that we need it clarified. I do not understand how that can be done.
Lord Wills
I am very sorry; the microphone was not working for the beginning of that. If the noble Lord was asking a specific question that he actually wants me to answer, I would be very grateful if he could repeat it.
Lord Lester of Herne Hill
I am asking whether the noble Lord has any answer to my point and that of the noble and learned Lord, Lord Mackay, about how the references to certain personal care and a healthcare service, which is not defined anywhere in the Bill, will resolve uncertainty rather than create greater uncertainty.
Lord Wills
I understand that fundamental point. That does not argue against the Minister rejecting this amendment in principle. If he believes that that point in itself will create uncertainty, it is very open to the Government to redraft the amendment and specify it more precisely. I would be very content to support this amendment if the Minister said precisely that—that he would accept the amendment, subject to revising and clarifying that particular point. There will always be some areas of ambiguity in any legislation. That is why the courts exist and that is how the noble and learned Lords in this place have made their careers. That does not concern me very much. I would be perfectly content if the Minister stood up and said he was content to accept an amendment along these lines, subject to clarifying what the noble Lord and the noble and learned Lord have already identified as an issue.
I also understand that the Government are worried that they may be pre-empting the role of the Care Quality Commission and that this amendment may be unnecessary because of the protections that have been offered by that. Of course it has a role to play but that role should never substitute for the fundamental protections offered to the individual by human rights legislation.
As we have already heard, there is a serious problem of flagrant human rights abuses of older people. They need the protections offered by the Human Rights Act, but it is not just a question of the sort of brutal abuses that we have already heard described today. There are protections against those anyway, but I ask the Minister to consider this: the protection of the Human Rights Act offers fundamental dignity and respect to elderly and often very vulnerable people. I think here of the case of an elderly couple who had been together for 60 years or so but were about to be separated by a local authority. From memory, one of them had dementia and the local authority wanted to provide care for that partner in a specialist facility for dementia care, while the other partner went into more mainstream residential care. They had no protection against that. They were not being refused care. They certainly were not being abused in any of the ways that we have heard about already, but they wanted to spend their remaining years together. The Human Rights Act was the only protection that they had. The case was taken to court. They won and were able to spend their last years together. That is the sort of dignity and respect that elderly, vulnerable people are owed. That is the protection that the Human Rights Act offers them, and that is what this amendment seeks to extend.
Even then, there is a further benefit from extending the protection of the Human Rights Act in the way that this amendment wants to do. Important work that was carried out for the EHRC two or three years ago by the noble Baroness, Lady O’Loan, and Professor Klug at the EHRC showed how basic human rights principles of dignity and respect can help transform the culture of public service delivery. The Government could signal the importance that they attach to this by accepting this amendment today.
Throughout the long passage of this Bill, the Minister has been notable for his willingness to listen to and engage with argument and, where he has felt able, to change course. I hope that he will not now seek refuge by pushing this off to the forthcoming White Paper on social care. If media whispers are to be believed, No. 10 does not want that to see the light of day any time soon. Even if it appears, there is no guarantee that this issue will be satisfactorily addressed. Even if it is, it could then be years and years before any appropriate legislative vehicle could be found to make the necessary changes.
Lord Lester of Herne Hill
I simply say to the noble Lord that he should not believe everything he reads in newspapers.
Lord Wills
Believe me, I try extremely hard not to do so, but I noticed that the noble Lord did not deny the account given in the Daily Telegraph. I hope that it is wrong.
Lord Lester of Herne Hill
For the record, I deny the account given in the Mail, in the Telegraph, by Dr Pinto-Duschinsky on the BBC, and anywhere else.
Lord Wills
I am extremely glad to hear that. I hope that the journalists concerned have noted that important denial, which I am grateful to hear from the noble Lord.
If this issue is delayed, we could be looking at years and years when vulnerable elderly people will be denied that fundamental protection. When I was Human Rights Minister, I was certain that we needed to go further than the Health and Social Care Act 2008 in tackling this problem. We ran out of time. The Government now have the time and the vehicle to do what I wish that the previous Government had been able to do. I hope that the Government will seize this opportunity and accept the amendment.
Lord Newton of Braintree
Having listened to the debate, I differ a bit from the noble Lord, Lord Wills. I have heard enough from the two distinguished lawyers who spoke beforehand to come to the view that my noble friend would be very unwise to rush down this path without more time than whatever there is—less than a week—before the intended Third Reading of the Bill to sort out the issue.
As always, my head has been left spinning by the lawyerly contributions from my noble and learned friend here and my noble friend down there. I just want to raise a couple of innocent layman’s questions that may even be a bit naive but which relate to the point that the noble Lord, Lord Lester, raised: what is the definition of all this?
I observe that the heading of the new clause does not talk about provision at the request of a public body, just provision of certain services, implicitly by anybody, whether or not commissioned by a public body. The first sentence reads:
“A person who is commissioned to provide”,
these services, undefined. Private people commission private services from private bodies in many areas—private hospitals, private residential care homes, private chiropodists, private this, that and the other. As far as I can see, the amendment extends the definition of public body to bodies that are not public by any reasonable definition and are not commissioned by public bodies to provide a service. That seems to me to be the natural construction. This is at least as much a question for the noble Baroness, Lady Greengross, as for the Minister, but that is how I read it. If that is its purport, it is not sensible and we should not rush into it.
Baroness Wheeler
My Lords, these Benches strongly support the amendment tabled by the noble Baroness, Lady Greengross, and the noble Lords, Lord Low and Lord Rix, to which I have added my name. It is frustrating that we appear to have moved no further forward from Committee, when the noble Baroness, a plethora of respected organisations representing older people, mental health, disability and human rights organisations, as well as the Equality and Human Rights Commission, were saying that there was a real problem which needed to be addressed by primary legislation. There are powerful arguments for amending the Bill in line with the amendment. They have again been ably made by noble Lords and I do not need to go over them again.
I believe that my noble friend Lord Wills addressed key points raised by the noble and learned Lord, Lord Mackay, and other noble Lords—as far as I was able to follow as a non-lawyer—and indeed acknowledged that this was unfinished business on the part of the previous Government. We amended the Health and Social Care Act 2008 to address this issue in respect of residential care. What has changed dramatically since then is that well over two-thirds of home care services are now provided by the private and voluntary sectors and this Bill is likely to increase the proportion of contracted-out provision still further.
The Government’s view, expressed in Committee, that any further legislation would cause uncertainty in other areas outside health and social care is a strange one. In this light, the obvious counter-argument is that the 2008 Act has already opened the door and, in my view, that factor only strengthens the case for the loophole to be closed off. Analysis by key human rights lawyers, counsel for the Equality and Human Rights Commission, key charities and civil liberties organisations have all endorsed this approach and stressed that case law does not support the Government’s view. As we have heard only recently, the Joint Committee on Human Rights’ report on independent living again called for the current Bill to be amended to extend the public function definition to the provision of care at home. For me, that is the key point. All these organisations still argue strongly that there is a loophole that needs to be addressed.
Moreover, the Government’s argument, again in Committee, that the YL v Birmingham City Council judgment has not been challenged to demonstrate that home care services are not covered by the Act or existing legislation is also weak, in my view, and does not inspire confidence in what might happen in the future. My understanding is that the subject of the YL judgment was residential care and the scope of the 2008 Act is therefore limited to that.
I hope that the noble Earl will have good news for us that the Government have rethought this issue and recognise the very real problem and concern that exist for the future. I hope that he will accept this amendment. We all agree about the importance of taking a human rights approach to care provision, with dignity and respect for older people embedded. The current loophole in the provision of personal care in the home by third or voluntary sector providers is of deep concern to thousands of recipients of home care. We need to ensure that this key opportunity to achieve clarity in this matter in the current Bill is not missed.
Earl Howe
My Lords, we have heard many excellent speeches in this debate, not least from the noble Baroness, Lady Greengross. I know that the noble Baroness and all those supporting her are motivated by a determination to ensure that everyone who uses publicly funded health and social care services is protected from abuses of their human rights. I want to make it clear that I absolutely share that determination.
It is crucial that we ensure that vulnerable people are protected, no matter what age they are, no matter whether they have a disability, and no matter where they happen to live or where they happen to be at any given time. The requirement for people to have their human rights protected and respected is not negotiable. This is absolutely fundamental in a civilised and democratic society. The question we have before us today is how best to achieve that, and whether the proposed amendment would help or hinder us in doing so.
Amendment 292A is intended to provide certainty about the coverage of the Human Rights Act with respect to healthcare and home care providers. I understand the noble Baroness’s arguments for her amendment, and I completely agree about the importance of the Human Rights Act and the public sector equality duty. It may provide reassurance if I state clearly and unequivocally that the Government’s view is that all providers of publicly funded health and care services should indeed consider themselves bound by the Act and the duty. This is the position that we expect private and third sector providers to follow and the position that we would argue for if a case were to be brought; and we think there are good arguments with which a court would agree.
Of course, legislative provision is far from the only mechanism we have for ensuring protection for those using healthcare and domiciliary care services and for improving the quality of that care. In fact, we would argue that in order to ensure that users of those services are protected from the kinds of tragic abuses that the noble Baroness and others have spoken about so eloquently, we need to focus efforts on changing the culture and practice of services which provide poor care. We are working hard on several fronts to drive improvements in the way that people, including older people, experience health and social care services. We know that this is essential, and much of it predates the excellent EHRC report that resulted from the inquiry led by the noble Baroness, Lady Greengross.
To offer just a couple of examples of the work that we are doing to this end, we have made the Care Quality Commission responsible for assuring quality of care from April. The CQC will undertake a programme of inspections of 200 home care providers that will specifically look at supporting home care workers, the care and welfare of those receiving home care, and the involvement of people in planning and managing their own care. The new disclosure on barring service will replace the vetting and barring scheme in November this year and will make it easier for home care employers to check the suitability of their staff by providing a seamless service and introducing portable criminal record checks.
We know that legislation has a role, which is why we intend to put adult protection on a firm statutory basis for the first time ever by requiring local authorities to convene and manage local safeguarding adult boards, by legislating for their key roles and responsibilities, and by requiring them to be in touch with and accountable to local communities. We expect to see much better sharing of information and action that will help to drive up the safety and quality of services. The forthcoming White Paper on social care, which we intend to publish later this spring, will set out the broader strategic context not only on safeguarding adults but on improving quality in care services overall. The Government also intend to respond to the Law Commission report on adult social care law by creating a single statute for social care supported by statutory principles which place the well-being of individuals at the centre of the decisions made about people.
To return to the amendment itself, I am afraid that, despite the persuasive case put by the noble Baroness and others, I am not able to support it, and I hope that noble Lords will allow me to set out why. The problem is that while, on the face of it, this amendment simply provides helpful certainty about the coverage of the Human Rights Act with respect to health and homecare providers, in reality it has very serious and unhelpful implications for the wider interpretation of the Act. This may sound like a rather dry, legal argument, but it is an extremely important one with very practical consequences. By stating expressly that providers of healthcare and homecare services were covered by the Act, we would cast doubt on whether all the areas beyond health and social care were covered by it. However we framed it—whether we made it an avoidance of doubt provision or a deeming provision—we would weaken the applicability of the general test, suggesting that a narrow interpretation of the Act was appropriate and raising doubt about the Act’s applicability to all those bodies that had not been specified explicitly in the legislation.
We would also encounter the significant problem, referred to by my noble and learned friend Lord Mackay, of how to ensure that a specific provision of this type did not have the unintended consequence of making the situation less clear with respect to healthcare and homecare services. When noble Lords think of the wide range of services that fall under the banner of homecare services, I am sure they will appreciate the difficulty of drafting legislation that covers all relevant services and avoids any potential loopholes. My noble friend Lord Lester made a similar point. We can see how the proposed amendment, as drafted, makes the situation unclear. It is not clear how it applies to a person receiving care in the home of a family member—a point made by my noble and learned friend—or whether it applies to services provided under direct payment arrangements rather than being commissioned by a local authority or NHS body.
It is for those reasons that the Human Rights Act is quite deliberately designed to make broad provision that applies to all public bodies across the whole range of services. As my noble friend Lord Lester said, the Act is very carefully put together. Any amendment of the Act must be done by looking at it in the round, otherwise we risk destabilising its careful construction. That brings me to another point mentioned by my noble friend Lord Lester.
Lord Wills
Can the Minister clarify one point? Is his objection to the amendment a drafting one—in other words, in an ideal world, were there more time, could a draft be found that would meet the various objections that he has just outlined—or is it one of principle, and is he saying that no such amendment to cover this loophole could conceivably ever be drafted?
Perhaps I may take just a little more advantage of the Minister’s time. He mentioned earlier that, in the Government’s judgment, were a case along the lines described ever to come along, the court would find in favour of the Government’s judgment. If that were not to be the case, can the Minister say whether in those circumstances the Government would be prepared to consider an amendment along the lines of that put forward by the noble Baroness, Lady Greengross?
Lord Lester of Herne Hill
Before my noble friend replies, perhaps I may have a go as well. The problem is that the more specific the amendment, the more the Latin maxim applies that says that, by expressing something, you are deemed to exclude something else. Therefore there is a great danger in ambiguous specificity.
Earl Howe
My noble friend expresses the position exactly. In answer to the noble Lord, Lord Wills, if a court in the future were to arrive at a judgment that all of us here would consider adverse, of course the Government would intervene. However, in our view, it is now highly unwise at this point to try to frame an amendment to put these matters beyond doubt in the way that the noble Baroness seeks to do because any attempt to do so is almost certain to lead to ambiguity and doubt about the applicability of the Act in other areas. That is the point. Of course I can pick holes in the drafting of this amendment, but that is not the central issue. The issue is the wider one to which I alluded earlier.
Lord Pannick
Would not any court regard this amendment as specifically designed to deal with the YL problem? It would not regard it as casting doubt on anything else.
Earl Howe
No loophole is created by YL. That was closed in Section 145 of the Health and Social Care Act 2008. While I listened with care to the noble Lord, Lord Low, who set out the background to the YL case very ably, I disagreed with him completely. This is not unfinished business from YL. That matter was decisively closed by the previous Government in the 2008 Act.
I move to another point raised by my noble friend Lord Lester. The Government have established an independent commission, due to report at the end of this year, which is looking across the board at how human rights are protected in the UK to see whether things can be done better. The topic of Section 6 of the Human Rights Act featured in various responses to the commission’s consultation last year and has already featured in the commission’s discussions. The Government’s view is that the receipt of the commission’s final report will provide the right moment for us to consider rights protection in the round, including any issues surrounding the scope and operation of Section 6.
I recognise the noble Baroness’s point about the amendment made in 2008 to specify that providers of residential care are bound by the Human Rights Act. However, that does not change my argument. As the noble Lord, Lord Low, reminded us, the 2008 amendment was necessary in order to overturn the contrary court judgment in the case of YL, but the Government at the time deliberately resisted any wider change for the very reason that I am resisting wider change today. I realise that my response is not the one that many noble Lords wish to hear.
Lord Wills
I am grateful to the Minister for giving way. It was not the case that the previous Government resisted the amendment. I was deeply and intimately involved in this. It is true that we did not get our act together in time; we ran out of time. I refreshed my memory from my own papers on this point. I agree with the Minister that it is a difficult issue. It is absolutely true that there were different views within government, and no settled decision was reached. There was agreement at the highest level and agreement with the noble Lord, Lord Lester, that public function—the wider issue that lies at the heart of this issue—did need to be addressed. That is what this amendment is trying to do. However, we did not resist it in the way that the noble Earl is suggesting. I appreciate that he is not perhaps as painfully familiar with the details of the previous Government as I am afraid I am.
Earl Howe
I am grateful to the noble Lord. My main point is that, whether by accident or design, the previous Government did the right thing in our view, and that is clearly the advice of the Ministry of Justice, which is in the lead on human rights matters.
I hope I have explained why I cannot support this amendment, despite the Government’s wholehearted support for the principles involved, and that I have demonstrated how seriously we take the issues that the noble Baroness raised. To that end, I can today make four very clear statements. I can confirm that the Government maintain an expansive view of the interpretation of Section 6 and, where we have the opportunity and it is appropriate to do so, we would intervene in legal cases in support of that interpretation. I can confirm that human rights will of course be part of the underpinning framework in adult social care law. Any reforms to the law on care and support will need to ensure consistency with the obligations placed on local authorities by the Human Rights Act. I can commit to hosting a round table, along with my honourable friend the Minister of State for Care Services, to bring together all key partners, including, if she wishes, the noble Baroness, to establish how our strategy on adult social care ensures protection of human rights. Finally, I confirm that if the independent commission on human rights makes any recommendations in its final report about the reform of Section 6 of the Human Rights Act, the Government will give them serious consideration.
On this basis, I hope that the noble Baroness will recognise the extent to which we have tried to address her concerns and will feel able to withdraw her amendment. If not, I beg noble Lords to think twice before voting for it.
Baroness Greengross
My Lords, I thank the Minister for what he has just said, which was extremely encouraging. I have never doubted his commitment to getting this right. I am not a lawyer, but listening to the discussion, I think there was some misunderstanding about the wording of the amendment and the context in which it stands. For example, the word “certain” is defined in the next paragraph as,
“personal care to an individual living in their own home”.
I agree that there could be ambiguity if somebody goes to stay with their daughter and I agree that there could be ambiguity in the drafting, although the amendment was not drafted by me but by the EHRC with the help of very learned lawyers who have worked on this extremely hard. It is limited not to services provided by anybody but to services commissioned or arranged by a public body. Therefore, those particular points that were raised by noble Lords do not apply, although if I thought they did I would agree that it would be a bit silly to try to insist on this amendment.
I feel that in spite of the Minister’s very welcome commitment—we have had time together when he has expressed this so I know that he feels this way—I would like to see the work that the noble Lord, Lord Wills, referred to carried forward, as so many other good policies have been, as there is no party-political disagreement about the aims of particular bits of legislation or the desire to get things right. I would like this to be the case. I am really sorry that the Government feel that we have to wait for those very worthwhile undertakings and pieces of work to be taken on board before we can protect these very vulnerable people who are just not being protected because they happen to be doing what all older people seem to want, which is getting services in their own home rather than going to a residential home. That is what the Government seem to want them to do, and that is what most older and vulnerable people want, as well as many younger disabled people who want to live independently, and many people with learning disabilities. This is not just about one group, although it primarily concerns older people. I just feel sad. I ask the noble Earl to continue with his good intentions but to build on them by incorporating a redrafted amendment in those intentions. On that basis, I feel bound to say that I should like to test the opinion of the House.
“( ) For the purposes of this section a failure to perform a function properly includes a failure to perform it consistently with what the Secretary of State considers to be the interests of the health service in England or (as the case may be) with what otherwise appears to the Secretary of State to be the purpose for which it is conferred; and “the health service” has the same meaning as in the National Health Service Act 2006.”
Lord Clement-Jones
“Contravention of section 64 of the Medicines Act 1968: due diligence defence
In section 67 of the Medicines Act 1968 (offences under Part 3), after subsection (2) insert—“(2A) But it is a defence for a person charged with an offence under subsection (2) in respect of a contravention of section 64 to show that the person exercised all due diligence to avoid committing the offence.””
Lord Clement-Jones
My Lords, in moving Amendment 297, I shall speak also to Amendment 301. First, I declare an interest as chairman of the council of the School of Pharmacy, University of London. For the avoidance of doubt from the outset, I will not press these amendments.
In Committee, I moved an amendment to provide a due diligence defence to the currently strict liability criminal offence committed under Section 64 of the Medicines Act 1968. This has the potential to operate very harshly on those making single errors dispensing medicines, whether in retail or hospital pharmacies. The intent of the original amendment was to remove the injustice that pharmacists and some others among healthcare professionals face criminalisation through single dispensing errors.
It was also very importantly designed to increase patient safety by removing barriers to a learning culture within the pharmacy profession and to ensure that pharmacists who wish to declare a dispensing error in the interests of patient safety are not penalised. The formulation of a defence, which gains universal acceptance among the pharmacy profession, has however proved more difficult than originally anticipated. Although the regulator, the General Pharmaceutical Council, has been supportive of the proposed amendment, there is as yet no consensus with the pharmacy professional bodies as to the best way legally of formulating a defence that meets these objectives.
There is, however, a unanimous view among professional pharmacy bodies that it would be better not to amend the Act at this juncture in this way but to wait for the full review of offences under the Medicines Act due to be carried out by the Medicines and Healthcare products Regulatory Agency, the MHRA. There have of course been helpful discussions to this effect with the chief pharmacist and his colleagues at the department, and agreement, as I understand it, that we should go forward on this basis.
In this context, it would extremely helpful for all concerned if the Minister could confirm the timetable for the scoping of the sanctions and penalties in medicines legislation review to be carried out by the MHRA and any other details of the review that he can give at the present time, such as the procedure, the timetable, and the involvement of the regulator—the GPhC—and professional bodies.
Although this is not directly within the gift of the Minister, it would be extremely helpful if he could also indicate that the department will engage with the DPP and the Crown Prosecution Service to encourage them in the mean time to engage with the profession and the regulator in reviewing the prosecution guidelines for offences under the Medicines Act. That would be extremely welcome to all those concerned in the profession. I beg to move.
Lord Hunt of Kings Heath
I must say that I am surprised that the noble Lord moved this amendment. He told me yesterday that he was not going to and did not have the courtesy to tell me that today he is. The amendment raises a very interesting question. No doubt we will be very interested to hear the response of the noble Earl, Lord Howe. He might perhaps add the membership of the review team to the details of the review.
Earl Howe
My Lords, I am very grateful to my noble friend, to whom I should like to pay a particular tribute for his work to bring interested parties together on this important issue to see whether a common view could be found on a practical way forward.
Both I and my ministerial colleagues are determined to ensure that we address the concerns of pharmacists and registered pharmacy technicians about the risk of prosecution for inadvertent as opposed to wilful or reckless dispensing errors. We and the profession want to see a learning culture that encourages the reporting of dispensing errors so that any helpful lessons can be learnt. Equally, we must make sure that any changes we introduce continue to give patients protection under the law and do not in any way compromise patient safety. It was therefore disappointing to me that, after a great deal of dialogue in recent months, there has not been a sufficient measure of agreement to proceed on a specific legislative change at this time. I have to accept the reality of that, despite everyone’s best efforts.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. First, let me say to the noble Lord, Lord Hunt, that no discourtesy at all was intended. We may have misunderstood each other. I never intended to press the amendment, but of course wished to raise the issue in order to get a response from the Minister about the way forward in the absence of this amendment being incorporated in the Bill. I apologise if I inadvertently misled the noble Lord.
We all have the same purpose, which is, as the Minister said, to encourage a learning culture within the profession so that it no longer has hanging over it a lack of a defence to the absolute liability in Section 64 of the Medicines Act; and, it may well be, other aspects of the Act as well, which no doubt will be uncovered as the MHRA carries on its work. I, too, share the Minister’s disappointment that we were not able to agree a suitable solution between the department, the regulator and the pharmacy profession.
I thank the Minister for showing us the way forward with the MHRA review of the scoping that will be done by September 2012. I very much hope that, as he said, the DPP will consider this debate very carefully, and that he will respond favourably and engage in a review of the guidelines. I also reiterate the Minister’s wish and hope that the profession will engage very closely with the MHRA in this review and in any review of the guidelines by the Crown Prosecution Service. In the mean time, I beg leave to withdraw the amendment.
“The Special Health Authority known as the NHS Business Services Authority | The Health and Social Care Information Centre” |
“The Health and Social Care Information Centre” |
“The Special Health Authority known as the NHS Business Services Authority | The Health and Social Care Information Centre” |
“The Health and Social Care Information Centre” |
“( ) the first regulations under section 84 (licensing requirement: exemption regulations);”
“( ) the first order under section 87 (approval by Secretary of State of licensing criteria);”
Baroness Thornton
“(A1) Part 3 of this Act shall come into force, by order, on a date to be determined by Parliament, which shall not be before April 2016.
(A2) Before bringing forward any order to bring Part 3 of this Act into force the Secretary of State shall consult the NHS Commissioning Board, the Independent Regulator of Foundation Trusts, the Care Quality Commission, patients or their representatives, and staff delivering NHS services or their representatives, and shall report to Parliament on the outcomes of the consultation.
(A3) Any such order must be laid in draft and approved by a resolution of each House of Parliament.”
Baroness Thornton
My Lords, as we near the end of our deliberations on Report, I hope to set out the case for changing not the policy but the pace of implementation. We have discussed extensively the policy background and the legal and other implications of this Bill. We have agreed on some things and disagreed on others. The case for Amendments 300A and 300B is simply that we have learnt a great deal in the past 13 months since my noble friend Lady Wheeler and I asked 18 other noble Lords to join us in organising seminars about this Bill because we felt that the House needed to understand it better. I have to say that 13 months later I am not sure whether we do understand it any better. However, what is quite clear from those seminars and our discussions since the autumn is that there are risks involved in this Bill. There are credible claims that detrimental consequences brought about by the scale of change are already being felt. There are some extreme assertions, such as from regional risk registers, that patient care could be seriously impacted.
In these remarks I am really only going to assert what we know. We know what is in those risk registers, we know the risks that we have discussed and we know that this is the largest reorganisation that the NHS has ever undergone, including the one that set it up. The evidence that we collected in our seminars raised the scale of those risks. During our debates risks have been mentioned time and again—risks to children, to older people and to people with long-term conditions. The Health Select Committee and the Public Accounts Committee have both added weight to those expressing concerns about the scale and pace of change, and that is the point of these amendments.
We still do not know what the key risks are in the risk register, which is a grave disappointment, but that may actually add to our concerns. Our concerns should also be heightened by the poor track record of the Department of Health to oversee and manage change on this scale. The wisdom of ex-Ministers in this House is such that they know very well how hard change is to manage within our NHS. Added to this particular programme is one of the worst impact assessments that I have ever seen and, one suspects, a deficient risk management process. The level of organisational change was acknowledged when the coalition agreement specifically ruled out any such major programme.
In adding to the risk inherent with the implementation of this Bill, we have put forward an amendment that is intended to ensure that part of the Bill is deferred and the major part of the Bill is proceeded with. That is what this amendment is about, and I think it has advantages. First, we have to allow time and bring about some stability for the Nicholson challenge, as it has been called, to deliver the savings. We know that economic regulation is not a key factor in delivering those savings, as evidence to the Health Select Committee demonstrated. Reforms in both commissioning and provision can continue as now in advance of economic regulation in the full market. That is the first reason. The Nicholson challenge and the savings need time to embed themselves and to work their way through the system.
Secondly, many in this House and outside have expressed concerns that the role of Monitor as the independent regulator of foundation trusts should not be weakened. To some extent that has already been acknowledged in the changes made to the Bill, but the addition of new rules and duties to Monitor is, we believe, in itself a risk. Under our amendment, Monitor would complete its role in authorising foundation trusts and be well on its way to moving to a light-touch regulation, so that the inevitable conflicts of interest, which many noble Lords have raised during the course of this Bill and outside the Chamber, would be lessened. The pipeline of expectant foundation trusts is still long and will not decrease any time soon. It seems that there is a job of work for Monitor to do in managing things such as mergers, takeovers, and franchising for laggards. That process, of itself, is enough, and we want to reduce the risks of failure in those processes.
It also seems that developing and building the capacity and capabilities required in a wholly new regulatory regime will and should take time. There is much to do, and we think that undue haste brings with it its own risks. The emerging clinical commissioning groups will be commissioning with billions of pounds of public money, yet they are young organisations with only light governance. They will need time to grow and to build capacity, capability and experience before they have the additional complexities of market regulation, and this amendment allows for that.
The most compelling reason for sequencing—a term that I openly acknowledge I first picked up from the noble Baroness, Lady Williams—is that it will give time to work with those who have to implement the changes, as opposed to forcing those changes upon them. Even those in the Government and on the Liberal Democrat Benches cannot really pretend that the widespread opposition to this Bill and the arguments for it to be reconsidered are all part of some Labour plot, as has been suggested. Would that it were that the Labour Party had such influence and strength. I do not think that is the case, but calling distinguished academics and leaders of professional bodies Labour stooges is both offensive and counterproductive. There is widespread opposition to and fear of the risks that this Bill brings. They are not borne of ignorance and ideology but based on knowledge, evidence and experience, so the Government would be wise to take time to win people over to what they want to achieve. As the Prime Minister himself said last year, he would not wish to move forward with these reforms without the support and commitment of the National Health Service’s staff and patients.
My final point is about the consequences of sequencing. At the outset, we heard claims that the NHS was in urgent need of competition to drive through reforms to improve outcomes, but evidence has been compiled to show that while our NHS is far from perfect—and indeed may need reform—it is still arguably up there with the best in the world. Where we lag behind, we are closing the gap, which is testimony to our support and investment in the NHS. We believe that there is no urgent reason for implementing Part 3 of this Bill, either for clinical or financial reasons. On the positive side, we are not suggesting any delay in developing other aspects that have wider support, such as clinically informed commissioning, health and well-being boards, HealthWatch and much else. These changes need not be delayed if our amendment were passed—indeed, they are pretty much going ahead anyway—but could proceed with less risk. By sequencing the changes, the risks posed to patients can be lessened and the prospects of delivering the Nicholson challenge increased.
While other parts of the Bill bed in and foundation trusts can be regulated and registered as far as possible, it seems to me that May 2016 is the right time to implement Part 3 of the Bill. At some point in this Bill, the Government had set that date for getting foundation trusts set up, as far as they could be. That will be when all the other work has been done and is bedded in, and has perhaps built up some support with less fear and hostility than it does at the moment. I beg to move.
Lord Owen
My Lords, the case has been made extremely well for accepting that one of the most vehement elements of criticism could be somewhat defused if this amendment was accepted by the Government. After all, some people have argued that the whole of Part 3 should be abolished. By accepting that the Government are going to go ahead but just asking that the relevant measures should be phased in seems to me a very rational and reasonable way of acknowledging that there is very deep-seated and justifiable criticism of this legislation.
Reference has been made to the primacy of the need to make the efficiency savings and the need to carry the people in the health service with regard to the provisions in the Bill. I do not want to weary the House by listing the royal colleges that are now opposed to this legislation but it is a staggering development. Nobody can deny the phenomenon that we are seeing; it is unprecedented. I would never have conceived it possible that there would be this degree of professional criticism of the Bill when I first started to look at it and realised that it was in my judgment a very bad Bill. Indeed, it remains so in my judgment. However, I am not here to argue all these cases. This seems to me an important amendment which is geared to accepting that the Government will certainly resist the dropping of Part 3, but may be amenable to phasing it in. Indeed, the Minister might propose a different phasing-in period. It would seem to be a very wise course to deal with the essential elements—the efficiency savings—then bed in some of the other aspects that are new in the Bill and may well be accepted within a short period of time, and leave the element which causes the most deep-seated opposition until later. I hope that the Minister will listen to the argument, reflect it in his speech and be ready to make this important concession to his critics.
Lord Clement-Jones
My Lords, I am afraid that I cannot agree with the noble Lord, Lord Owen, as regards supporting the amendment. However, I appreciate that the noble Baroness, Lady Thornton, has adopted a much more emollient line on Amendment 300A, is not making a full frontal attack on the whole Bill and is looking simply at Part 3. There is certainly an argument to be explored in what she had to say but I cannot understand the logic of why, of all the parts of the Bill that she has talked about today, she is focusing on Part 3. I find it extraordinary that throughout the debates that have taken place on the Bill the Opposition have refused to accept that the National Health Service Act 2006 introduced price competition into the NHS. If Part 3 did nothing else but plug some of the competition problems in the 2006 Act, I would support it.
Baroness Thornton
Would the noble Lord care to tell me to which part of the 2006 Act he is referring because, according to my recollection of the Act, it does not mention the word “competition” anywhere?
Lord Clement-Jones
My Lords, that is precisely the point and that is precisely why the Labour Government were avoiding any argument because that is where the big loophole lies. Any competition lawyer will tell you that that was the point where EU competition law started to bite in the NHS. That is a fact which you cannot deny. The establishment of independent treatment centres constituted a major introduction of the private sector into the health service by the Labour Government. That process was far more unregulated than it will be in the future under this Bill. There were major flaws in the 2006 Act which have never been fully acknowledged by the Labour Party throughout these debates. The noble Baroness’s speech could have been written three or four weeks ago. The Opposition refuse to accept the value and benefit of the amendments that have been made to Part 3 just in the past two weeks. I will not adumbrate them all. I refer the Opposition to the House of Commons paper that has just been written which sets out in great detail something like 2,000 amendments that have been made to the Bill since it started its passage through the House of Commons. We have had Future Forum, we have had 1,000 amendments tabled in this House alone and we have had changes to the Competition Commission’s involvement.
Baroness Thornton
What is the noble Lord’s answer to the question which I put? I was not attacking him and his party. I realise that he has to attack; that is his method of dealing with issues. That is a shame as I have from time to time tempted him not to do so. However, does he accept what the noble Lord, Lord Owen, said about the hundreds of thousands of people and professionals who are fearful of this Bill? Attacking me as much as he likes will not alter that fact.
Lord Clement-Jones
My Lords, I really enjoyed the noble Baroness’s intervention. Today’s news about the change in attitude of the Royal College of General Practitioners shows that we have reached a genuine watershed. It may not have changed its mind absolutely, although it appears that membership pressure is being applied to the leadership of the royal college, but this is a real watershed whereby the acceptance of the fact that the Bill is going through is changing hearts and minds—not just minds but hearts as well. I am far more optimistic than the noble Lord, Lord Owen, because I believe that the other royal colleges will follow suit. They are actually looking at the substance of the Bill, not at some of the alarmist propaganda being put out. They are considering how mergers between foundation trusts will be regulated, how Monitor will do its duty and the additional powers that Monitor will have following consideration by Future Forum and Members of this House. They are also considering the impact of EU competition law following the Pepper v Hart statement that was made the other day. They are looking at the substance, which is exactly the way to look at the Bill. I believe that Part 3 is one of the most valuable parts of the Bill. I did not believe that it was acceptable to start with. That is precisely why I put down amendments in Committee and on Report. I am very pleased to say that it is much improved. The Bill should not be held up because of Part 3. In fact, it should be celebrated because of Part 3.
Lord Newton of Braintree
My Lords, those who have been here will have realised by now that this is one of my “good boy” days. At the risk of seeming sycophantic, even beyond being a good boy, I support every word that my noble friend Lord Clement-Jones has just said. I will refer back in a moment to something the noble Baroness, Lady Thornton, said about former Ministers. This chunk of the Bill—Part 3—is largely about Monitor and includes a lot that the House has been pressing for in terms of increasing Monitor’s power to intervene and do sensible things in a sensible way. It also includes all the stuff about pricing and tariffs, which in my view need to be addressed now, not in four years’ time.
My main point concerns what the noble Baroness, Lady Thornton, said about former Ministers knowing about the problems caused by upheaval. We do. I became very much aware that the publication of a White Paper was the start of a process, not the end. Too often Ministers think that all they have to do is publish an edict and everybody on the ground will carry it out. These things take time, trouble and involve culture change. However—this is the point here—what is equally or even more damaging is year upon year of uncertainty, which is what this amendment seeks to bring about.
I have referred on a number of occasions to the merger/takeover proceedings in which I was involved last year with the health trust that I then chaired. That occurred partly against the background of Monitor and the competition matters that are being changed in this Bill for the better. The worst thing was the uncertainty for everybody involved—the way it was dragging on and nobody knew what the future was. Good people started to leave or think about whether they had a future with the organisation. It would be insane to go down this path and I strongly recommend that the House should not do so.
Baroness Williams of Crosby
My Lords, I fully understand the fervour and passion with which my noble friend Lord Clement-Jones spoke, because he feels very strongly that he, with the help of others, brought about a real change in Part 3. I make no pretence about the fact that I began by being totally opposed to Part 3. I was on public record as saying that I thought it was a very bad thing indeed, but very sweeping changes have been made to it, and on that I agree with the noble Lord, Lord Newton of Braintree.
However, I do not want to stop at that point. My noble friend said that we were at a watershed and I believe that we are. I pay tribute to the noble Baroness, Lady Thornton, and her colleague, the noble Lord, Lord Beecham, for tabling this important amendment, and I shall explain why. In this House, we have a great deal of trust in the Minister. Repeatedly and rightly, huge tribute has been paid to him throughout these debates for his understanding, his patience, his willingness to go a very long way to meet the needs and requirements of other people and, if I may say so, his permanent consciousness and awareness of why the British public love the NHS so much. More than virtually any other politician that I can think of, he has real empathy with what people want and expect from their health service and it is important to recognise that.
The noble Earl has punched—if I may say so politely—well above his weight. His weight is not, of course, that great but his punch is terrific. He has persuaded a great many of us—not, I suspect, only on this side of the House—with the elegant and generous way in which he has put forward compromises and concessions. Many of us have accepted these or, like the noble Baroness, Lady Greengross, decided to wait a little longer to see what might come out of what he said. That is an immense personal contribution.
We would be in a world of illusion if we did not recognise that outside this House and the other place, where my honourable friend Mr Burstow is doing his very best on the social care side, there is, as the noble Baroness, Lady Thornton, rightly said, massive distrust and disbelief in what we are trying to do. We have to address that or we can forget altogether about doing what the noble Lord, Lord Newton of Braintree, rightly said we need to do—to give the National Health Service some stability, some confidence and some sense that it has a future. This is the most labour-intensive public service. Our whole capacity for addressing the Nicholson challenge and the problems of an ageing and often chronically troubled society, and for delivering what most of us want and which is enshrined in the words that we wrote into the Bill at the very beginning of its passage in this House—the responsibility and accountability of the Secretary of State for a comprehensive health service free at the point of need—will go with the wind without the support and morale of the professional services, the staff and the public.
As Members of this House will remember, we owe a great deal to the noble and learned Lord, Lord Mackay of Clashfern, for the Conservative Party, we owe a great deal to the noble Baroness, Lady Thornton, and her team for the Labour Party, and we owe a very great deal to the Cross-Benchers for the steady support they have given to maintaining the stability and future of the National Health Service, which all of us recognise as probably the greatest single social achievement of this country since the Second World War.
What I like very much about the amendment is the second section, where the noble Baroness, Lady Thornton, and the noble Lord, Lord Beecham, point to the need for consultation before there is a move towards bringing Part 3 into full effect—I would go wider and say before bringing into full effect the Bill itself. It is vital that, when the Bill has completed its passage, the Government and the Department of Health in particular seek to hold a wider consensual discussion, bringing in the main bodies but also the main people who have been involved in the Bill, regardless of whether they stood for or against it, in order to give the National Health Service the foundation it needs to address the huge scale of the problems it faces.
Lord Crisp
My Lords, I had not intended to speak on the amendment, but I want to say a word or two in support of what the noble Baroness, Lady Williams, has just said. She and others have referred to the rift that has been created as the Bill has gone through Parliament and been discussed in the country. I am sure the Minister recognises that, but I know that he also recognises that now is the time to move towards healing that rift. Many people have, for whatever reason, been scared by what has been said and many people have also been scarred by what has been said. The noble Baroness is absolutely right to draw attention to the second part of the amendment and the opportunity that it gives to start to bring people together around the practicalities. We talk about the legislation but many people out there have to talk about the practicalities and how you make it happen—something with which many Members of your Lordships’ House, including the noble Lord, Lord Newton, are very familiar.
This has also been about failing communication. I believe there is now more that unites people than divides them. There are many things that people agree on. There are still some very significant differences and, like the noble Baroness, Lady Williams, I am not a fan of the Bill. It has been a damaging process but now is the time for healing. It would be good to see some cross-party approaches to bringing people together in a positive fashion to deal with the practicalities, rather as is laid out in the second part of the amendment.
Earl Howe
My Lords, I think that it is important for me to begin by acknowledging fully the force of the wonderful speech by my noble friend Lady Williams, and indeed acknowledging the powerful points made by other noble Lords regarding the climate of opinion among the medical royal colleges and others in relation to the Bill. I cannot fail to be conscious of the suspicion and doubt expressed by many members of that community, although I have to say that opinions vary as to what the real views of some of the royal colleges are, bearing in mind that only a small percentage of their members were canvassed. However, I cast that aside because I am very aware of the validity of the points made by the noble Lord, Lord Owen. The Government are undoubtedly fighting a battle to convince the medical community of the merits of the Bill, a battle that we have so far not won. I can therefore very readily confirm to my noble friend that the first thing we would wish to do once the Bill reaches the statute book is to build bridges with the royal colleges, the BMA and all those who have an interest in seeing this Bill work, to make sure that its implementation is securely grounded. I completely agree with her that the Government should work with NHS staff, all our stakeholders and, indeed, patient groups during the coming months to make sure that implementation really is a collaborative process. I hope that the undoubted wounds that have been created will be healed, and healed rapidly.
I am grateful to all noble Lords who have spoken in this debate. In particular, I listened carefully to what the noble Baroness, Lady Thornton, had to say, as I always do. The question posed by her amendment is, on the face of it, “How can we improve Part 3?”. The answer that she has given us is, “To postpone it”. However, the subtext of her question is, “Why should we have Part 3 at all?”. I am happy to set out once more exactly why it is essential that we have Part 3 —and not just have it, but have it without delay. We need it for two compelling reasons: to protect patients’ interests, and to help the NHS meet the significant quality and productivity challenges it faces. They are benefits that I am afraid the amendment would stop in their tracks.
Part 3 sets out a clear, overriding purpose for regulating NHS services—to protect and promote patients’ interests. That contrasts with Monitor’s duty under the National Health Service Act 2006, which is merely,
“to exercise its functions in a manner consistent with the performance by the Secretary of State of his”
functions. That 2006 duty is not adequate as it stands. It does not mention patients’ interests and it is unclear. However, that duty is what would apply if Amendment 300A were accepted. The amendment would also discard the recommendations of the NHS Future Forum that Monitor should have additional duties: first, to involve patients and the public in carrying out its functions, as my noble friend Lady Cumberlege and the noble Lords, Lord Patel and Lord Warner, rightly emphasised; and, secondly, to enable integration.
It needs to be made clear that the provisions in the Bill interlock and are interdependent. Deferring Part 3 would not achieve the continuation of the status quo, but it would leave an NHS without strategic health authorities and primary care trusts and without a comprehensive and effective framework for sector regulation. There would be no organisation with the powers needed to support commissioners in developing more integrated services. That is something that the noble Baroness, Lady Finlay, and others have rightly demanded. There would be no organisation capable of enforcing requirements on providers regarding integration and co-operation. Neither would there be sector-specific regulation to address anticompetitive conduct that harmed patients’ interests. The powers that currently exist to enforce advice of the Co-operation and Competition Panel would no longer be available. Instead, it would be reserved to the OFT to consider complaints under the Competition Act, rather than by a sector-specific healthcare regulator with a duty to protect patients’ interests.
I mentioned protecting patients for a good reason.
Baroness Thornton
Surely the Co-operation and Competition Panel still exists, will continue to exist, and can deal with any competition issues that are raised—as it already does.
Earl Howe
My Lords, the proposal that we have made in the Bill is for the Co-operation and Competition Panel to be part of new Monitor. If the noble Baroness’s amendment runs a coach and horses through those new arrangements, they are clearly very seriously destabilised.
Part 3 provides for a comprehensive system of regulation, covering all providers of NHS services and so protecting all patients whenever they use the NHS. The amendment would mean that patients using services supplied by the independent sector, social enterprises or charities would continue to be denied those protections. The protections would not, for example, apply to the 500,000 people in Hull and the East Riding of Yorkshire who receive NHS services from the City Health Care Partnership, a community interest company established under the previous Administration. The partnership offers a range of community-based treatments as well as early interventions to help minimise the need for acute care in hospital and promote healthy lifestyles. Monitor does not currently regulate the partnership, because it is a social enterprise.
Part 3 will extend equivalent safeguards to protect patients’ interests, irrespective of who provides their treatment. That is a huge step forward. For the first time, there would be regulation to protect patients from the risk that poor management decisions may put essential NHS facilities and continuity of services at risk. By contrast, the amendment would perpetuate the situation whereby such protection exists only where patients receive essential services from foundation trusts. This would not recognise the nature of our NHS as a comprehensive service delivered by a diverse range of providers.
As well as providing for comprehensive regulation, Part 3 provides for effective regulation that will benefit patients by better enabling positive change. The noble Baroness mentioned the Nicholson challenge. Change in service delivery will play a vital role in achieving the Nicholson challenge of realising up to £20 billion of recurrent productivity improvements in the NHS, for example by providing older people and those with long-term conditions with more integrated care outside hospitals.
Part 3 will enable such change by empowering clinical commissioners to decide how best to improve services and when, where or, indeed, if to use competition as a means to that end. The amendment would leave no provision for sector-specific rules of this kind. Let me explain what that would mean. It would mean that clinical commissioners would face continuing risk of legal challenge whenever they decided to secure services without competition. It takes little imagination to see how that would stifle enthusiasm for clinical commissioning and potentially prevent the sort of innovative, integrated solutions needed to meet the demands of caring for an ageing population.
Part 3 would also enhance the NHS’s ability to deliver positive change by improving the current pricing system. Improving the pricing system is important for three reasons: to strengthen incentives for improvement, to enable integration and to remove incentives for cherry-picking. Part 3 will establish a transparent, legally enforceable pricing system that rewards providers for treating NHS patients. Money will follow the patient, and providers will be paid a fair price for treating complex cases. Again, this is central to the Nicholson challenge. Reform of the tariff in a systematic way will encourage service redesign and better integration. The current system, under Department of Health control, has, I am afraid, often failed to achieve these aims. For example, although foundation trusts should have been paid for every NHS patient treated, that has not always been happening. There have been unacceptable levels of cross-subsidy, and prices for complex cases have sometimes been woefully inadequate.
These and other problems have been highlighted by the royal colleges and are well documented, including in the recent report by PricewaterhouseCoopers. However these are also complex issues that will take time to solve, and as the noble Baroness, Lady Thornton, herself has said, it has taken time and is likely to take time. Therefore time is of the essence. The NHS cannot afford further delays. For all of these reasons, there is a clear, compelling and urgent case for moving forward with Part 3 of the Bill. I hope that I have been able to able reassure noble Lords exactly why it is that we need it.
Baroness Thornton
I thank the noble Earl for his, as usual, extremely expert and very technical response, and I think that he completely missed the point. He did not address the risks that I mentioned all the way through the Bill, the risks that are contingent on implementing so much change so quickly and simultaneously. We will be back here very soon, I suspect, when we will be trying somehow to manage and mend.
I want to make just one or two remarks and will not keep the House very long on this matter. I would like to read to the House a Motion that Liberal Democrat MPs have tabled in the debate that is going on in the Commons right now. Both ends of this building are, as we speak, engaged with their concerns about the Bill. In seeking to amend the Labour amendment in the other place, colleagues of the noble Baroness, Lady Williams, and the noble Lord, Lord Clement-Jones, have said that they decline,
“to support the Bill in its current form”,
and they call for,
“an urgent summit of the royal colleges, professional bodies, patients’ organisations and the government to plan health reforms based on the coalition agreement”.
Lord Clement-Jones
Would the noble Baroness like to say how many Liberal Democrat MPs have put their name to that particular Motion?
Baroness Thornton
It does not really matter. Five of his colleagues have put their names to it. The point I am making to the noble Lord is that I agree with them about the way forward. It echoes very much what the noble Baroness, Lady Williams, was saying about recognising the disquiet, hostility and fear that exists towards this Bill, particularly this part.
At the end of the day, the Royal College of General Practitioners and the other royal colleges, trade unions, nurses and doctors are the people who will save our NHS, whatever the Government have decided to do to it. They are the people who will actually deliver the healthcare. That is what the royal college of GPs is saying now. It did not say that it resiled from its position about this Bill; not at all. It is acknowledging that, along with the nurses and everybody else, it will deliver this Bill. It will put patients at the heart of the health system. I think that we should all pay tribute to that and be reassured by it.
The noble Lord, Lord Newton, said that mergers will still proceed. They will still proceed regardless of whether this amendment is agreed. However, he also said that good people leave when there is disruption in the health service. That is very true. They are leaving in their droves. We are losing hundreds if not thousands of good people from the National Health Service because of the past two years, the White Paper and the Bill.
I thank the noble Lord, Lord Crisp, for his remarks—I think he was very wise—and the noble Baroness, Lady Williams, for hers. She is quite right. I am flattered that she took my remarks seriously, because this is not about wrecking the Bill. I did not tackle any of the policy issues that the noble Earl chose to stand up as Aunt Sallies and then knock down. When I introduced the amendment, I said that this was about doing things in an orderly fashion, in a way that would help to save our NHS. That is the point. The noble Earl did not tackle any of the risks that I raised about how to deliver the Nicholson challenge simultaneously with all the other changes in the Bill. In fact, he went close to saying that we have gone too far anyway to stop that. I was not convinced by his remarks about the risks and how they might be mitigated. We need time to work on this. We need time to get support for it, if it goes through. The amendment allows us to do that. I wish to test the opinion of the House.