House of Lords
Economy: GDP Forecast
(10 years, 9 months ago)
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Lord Soley
To ask Her Majesty’s Government what is their forecast of the maximum public debt–gross domestic product ratio in 2016–17.
Lord Newby
My Lords, the Office for Budget Responsibility forecast public sector net debt to be 85.6% of GDP in 2016-17.
Lord Soley
In 2010, the Chancellor of the Exchequer promised to eliminate the structural deficit and to reduce the percentage of national debt to GDP. Both of those will now fail to materialise—I would argue, through low growth. When do the Government think that they will achieve them and why do they think that they have failed to achieve them?
Lord Newby
My Lords, the figure I gave was for the peak level of net debt. After that, the level will fall. Of course, if growth proves to be higher than forecast, as seems likely, for this calendar year, net debt will be less over the period ahead than has been forecast.
Lord Higgins
My Lords, is there not great confusion in the public mind between debt and deficit? Is it not the case that the debt is going up because the deficit has been cut by only one-third and that, consequently, the debt is going up by two-thirds of the rate that we inherited? Does that not show that we must make more determined efforts to cut the deficit and that the idea of Mr Balls that we are cutting too fast and too much is certainly not the case?
Lord Newby
My Lords, it is worth reminding the House that in the financial year 2011-12 the net debt was £1,106 billion. On current plans, by 2017-18, when the percentage of GDP starts to fall, it will be £1,637 billion, so the noble Lord makes a valid point.
Lord Peston
My Lords, is the noble Lord aware that research evidence shows categorically that if you want to get the debt to GDP ratio down, the vital ingredient is to increase the rate of growth of GDP? That is the way to do it. Measures such as raising taxes or cutting the deficit by cutting large chunks of public expenditure simply do not work. Overall, the lesson we have to learn is that an austerity package is not required; a package concentrating on raising GDP is the correct policy.
Lord Newby
I am sure that the noble Lord will therefore have been very pleased to have seen the growth figures last week. I point out to the House that a key factor in growth is the level of interest that people have to pay and that, as a result of the Government’s decisive action in 2010, interest rates have fallen compared with the forecast, as a result of which we will, by 2015-16, have paid £31 billion less in interest payments than was expected in 2010-11.
Lord Sharkey
My Lords, what impact will the improved growth figures have on the public finances in general and, in particular, will they allow the Government to do more to help supply funding to SMEs?
Lord Newby
My Lords, the increased growth figures will of course have a materially positive impact on the debt forecast going forward. With regard to lending to SMEs, the Funding for Lending scheme was strengthened at the Budget and I am pleased to say that the figures published this morning show that there has been for many months a slight uptick in lending to SMEs.
Lord McFall of Alcluith
My Lords, the Minister has recognised that the public debt that this Government inherited in 2010 will be greater when they leave office in 2015. No less a figure than the editor of the Spectator has said that the amount of debt that this coalition Government will borrow will be greater than the total amount of debt of the Labour Government in their 13 years from 1997. Is it not the case that there is not a deficit reduction strategy but a growth reduction strategy, which has been the most successful in history? This Government need to acknowledge that and do something about it.
Lord Newby
My Lords, I disagree with virtually all of that. As I pointed out earlier, during the five years of this Government we will have borrowed very significantly more to shore up the economy. That is why debt is higher. I am not sure whether the noble Lord is suggesting that we should have borrowed even more.
Lord Howell of Guildford
Is not the noble Lord, Lord Peston, leading us all into a bit of a false dichotomy? Of course we want economic growth, and we are getting a little now. The growth is coming back, as the noble Lord will have seen from the newspapers. Although we would obviously like more of it, growth depends on getting the debt curbed and on getting public expenditure under control. These things are not opposites or choices but all have to go together. Surely the noble Lord, who is a very good teacher and an expert, should be teaching us that. That is what he should be telling your Lordships.
Lord Newby
My Lords, the noble Lord, Lord Peston, is an extremely eminent economist and he knows, as a good Keynesian, that the key at this point of the cycle is the change in animal spirits—the sense to which people have confidence to invest. Animal spirits have been very significantly subdued over recent years. There is a suggestion in every single figure that we now see that they are returning to the positive. That, more than any single thing that the Government now do, will be what drives growth forward.
Lord Hughes of Woodside
My Lords, the Minister has taken great comfort from the reduction in the amount of interest paid. Does he have any sympathy at all for those on fixed incomes and small and medium savers, for whom the policy of low interest rates has been quite ruinous?
Lord Newby
I do, my Lords, but with interest rates you cannot have it both ways. You cannot have low interest rates for people who want to borrow and high interest rates for those who want to save. On balance, the Government’s view is that having had interest rates low has kept families being able to spend, compared with having higher interest rates. For example, a 1% increase in mortgage rates would have added £12 billion per year to interest payments. It would have sucked that out of the economy. If you have that kind of reduction in expenditure and the kind of diminution of growth which it entails it harms everybody, even those who are savers.
Lord Foster of Bishop Auckland
My Lords, we all welcome the improved rate of growth, but is it not true that this Government have not yet achieved the rate of growth that they inherited?
Lord Newby
We certainly have not seen the rate of growth that we or, indeed, anybody envisaged in 2010, but as the Office for Budget Responsibility has made absolutely clear in a succession of reports, the single greatest check on growth has been the ongoing eurozone crisis because that is where we sell most of our goods.
Referendum: European Union
(10 years, 9 months ago)
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Lord Barnett
To ask Her Majesty’s Government what discussions the Prime Minister has had with fellow European Union leaders about treaty changes that could be made before the proposed United Kingdom referendum on the European Union in 2017.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, the Prime Minister regularly discusses a range of EU issues with his counterparts, including changes needed to make the EU more competitive, flexible and democratically accountable. These discussions include the substance of reforms and the means to achieve them, which range from legislation to treaty changes. Most recently, the Prime Minister held discussions in the margins of the June European Council and the Lough Erne summit, bilaterally with counterparts from Italy, Germany, Spain and France, and with the Commission President.
Lord Barnett
Has the noble Baroness seen a recent article in the Times which said, “A senior government figure”—the Times did not name him or her—
“said that other European leaders were privately offering concessions to Mr Cameron so long as reforms were agreed on an EU-wide basis”.
Is it not clear that if that were to happen it would require all the other 27 countries to sign and that that is extremely unlikely, to put it mildly, before 2017? Has it not always been clear that offering a referendum on the condition of various things happening is likely to create great difficulties, especially when the referendum is on a major constitutional issue? Can the Minister assure us that when the Prime Minister has an agreement, whether it is agreed Europe-wide or not, he will say to the community here that in a referendum they should say yes to staying in the eurozone?
Baroness Warsi
The noble Lord raises a number of issues. First, I can assure him that the process of reform is ongoing. This Government have been able to negotiate a number of issues in favour of the United Kingdom’s position. On the position in Europe about whether there will be a treaty change in due course, views differ. The Italian Prime Minister, Mr Enrico Letta, said recently that we need a more flexible Europe, that the role Britain plays in the European Union is a positive one, and that he thinks that treaty change can be achieved in the near future. The noble Lord will also be familiar with the statements from President Barroso and the plan published by the four Presidents in December last year, which again clearly show that the possibility of a treaty is definitely there.
Lord Clarke of Hampstead
My Lords, did the discussions the Prime Minister had with his European colleagues include the matter of the European directives on procurement policy? I am sure the Minister will know that a trusted and loyal servant of this House will lose her employment because of the European directive, which seems to work against small businesses. Does this matter concern the Government? The lady in question supplies a floristry service to this House and is going to be without an income and a job because of a directive. I hope that the Minister and the Government will join me in congratulating the Lord Speaker on initiating a collection to help ameliorate the hardship that the loss of her job will cause.
Baroness Warsi
Of course, this Government are committed to cutting the costs of European regulation and I am sure that the noble Lord will be aware of what progress has already been made in terms of cutting bureaucracy for the smallest businesses in Europe. On the very specific question he has raised, I am not familiar with the case, so I would be grateful if the noble Lord could write to me. I will write to him fully in return.
Baroness Falkner of Margravine
My Lords, does my noble friend agree that the alternative proposals of the German finance Minister, Wolfgang Schäuble, for a two-step process towards a banking union have been floated precisely in order to avoid treaty change? The Germans have now come to the view that treaty change would be very difficult to achieve in light of the credibility of the eurozone at the moment.
Baroness Warsi
My noble friend is aware that the German finance Minister claimed that banking union could not be completed without a change to the treaties and therefore he has proceeded in the way he has. I go back to the general question on this matter, which is that reforms—including in relation to a banking union—can start to happen right now. It is right that we should continue to negotiate a better position for the United Kingdom, always keeping in mind the longer-term view of what more we can negotiate for a position that is better for us within the European Union.
Lord Pearson of Rannoch
My Lords, is there any truth in the rumour that Mrs Merkel has agreed to go along with minimal cosmetic treaty changes in the hope that the British people can be deceived into voting for what will still be a fundamentally unreformed European Union?
Baroness Warsi
My Lords, I am not in the habit of commenting on rumour. What I can say is that I am aware that Mrs Merkel is committed to a more competitive and flexible Europe and that in a number of areas we do, in fact, agree.
Lord Tugendhat
My Lords, does the noble Baroness agree that there is too much pessimism around these questions? Not only have there been encouraging responses from the German Government, the Dutch Government and the Italian Government, it is quite clear that in the coming two or three years either the eurozone will come closer together, in which case there will have to be a general negotiation with the non-eurozone countries, including ourselves, or the eurozone will split apart, in which case again there will have to be a general recasting of relationships. Within that context, the Prime Minister’s ambitions seem perfectly reasonable. Does she not agree?
Lord Davies of Stamford
My Lords, last week the Government faced deserved criticism and indeed derision on the farce of opting out of the justice and home affairs measures and then opting back in. Is it not equally absurd to decide now on a referendum in 2017 or on any other fixed date years ahead? An awful lot can happen between now and then. There might even be a new treaty—the Germans are already talking along those lines—that might be under negotiation in 2017, so we would not know what we were voting on. Is it not time for the Government to stop taking decisions on European policy that are illogical and do not make the slightest practical sense, but are simply based on attempts to pander to the eurosceptics in the Tory party and desperate attempts to try to retrieve the UKIP vote?
Baroness Warsi
I am glad the noble Lord has got that off his chest. He will recollect that the amount of support the Government had in relation to that particular opt-out was clear in relation to the majorities in both Houses.
Lord Grocott
Am I right in my understanding of the Prime Minister’s position on the European referendum? In the event of there being a Conservative victory at the next election, he will hold a referendum that will be based on negotiations which he will have conducted and, when he has completed those negotiations, he will recommend a yes vote. If I am wrong in that assumption, can the Minister explain the basis on which the Prime Minister would recommend a no vote?
Baroness Warsi
The Government’s position is very clear: there will not be a referendum before the next election. The Conservative Party has made its position entirely clear. The noble Lord understands that there will be a period of negotiation and then we will go to the country and ask people to vote. What would be interesting for these Benches and the country to hear is what the Labour Party’s position is. We believe that the country should be allowed a vote and a decision. I would like to hear what the Labour Party thinks.
Prisons: Child Suicides
(10 years, 9 months ago)
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Lord Sheldon
To ask Her Majesty’s Government what steps they are taking to reduce the number of suicides of children in prisons.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are committed to reducing self-inflicted deaths of children in prison. Since the tragic deaths of three children in 2011-12, the National Offender Management Service has established a working group to extract and disseminate the learning to prevent further deaths. Additionally, a review of the assessment, care in custody and teamwork procedures for young people is being undertaken.
Lord Sheldon
The actual task is down to the mothers. The mothers should really not take the children to prisons; that is the task.
Lord McNally
I am not sure how that links to the Question on the Order Paper. If the noble Lord is asking about mother and baby units, I can try to give an answer on that. However, the Question was about the number of suicides of children in prison. That is what I was responding to.
Lord Laming
Would the Minister agree that, no matter how serious the offences committed, or alleged to have been committed, by these young people, they are also often vulnerable young people who are confused and capable of serious self-destruction? Can the Minister expand on his earlier Answer to say what steps are taken to ensure that the assessment of risk is as strong as possible? Is he satisfied that prevention plays a key part in dealing with these young people?
Lord McNally
My Lords, first, we are talking about six deaths over 10 years; that is six too many, I readily acknowledge. We also now have an all-time low of young people in custody, for which both Administrations and those working in the youth justice system should take credit; there are fewer than 1,400 in custody, including only a handful of girls. However, the noble Lord is absolutely right that we are dealing with young people who, as well as often having a great capacity for violence against other people and self-harm, are extremely vulnerable and quite often exhibit mentally unstable behaviour. We are bringing in both initial and ongoing assessments to try to make sure that we can identify those who are at risk of either self-harm or, ultimately, of killing themselves. Looking at the briefing on this, an awful lot of hard work and deep study is going on, with the realisation of exactly the problem that the noble Lord highlights: these are vulnerable young people, who are difficult to manage and need a great deal of care and attention.
The Lord Bishop of Guildford
Would the Minister care to comment, in the light of the reports of HM Inspectorate of Prisons of May this year on the increased violence at Ashfield and Feltham—it is 10 years to this month since the Commission for Racial Equality produced its report on Feltham—on the desirability of the elimination of the use of batons and routine strip searches in juvenile prisons?
Lord McNally
Every inclination I have is in that direction. Carrying on the policy of the previous Administration, we have tried to make sure that order and discipline in young people’s institutions of various kinds are maintained with the minimum of physical intervention and with the maximum attention on trying to manage difficult situations. A lot of the training addresses how the staff themselves are able to manage down situations before they become violent. However, we also have a duty of care to our staff and a duty of care to other inmates in these institutions, who may become victims of uncontrolled violence.
Lord Patel of Bradford
My Lords, what mental health and therapeutic services are available not only to assess but to support young children and others at risk of suicide and self-harm?
Lord McNally
My Lords, the Department of Health has made a commitment to provide access to liaison and diversion services for offenders of all ages who come into contact with the youth justice and criminal justice systems by 2014. A national liaison and diversion development network has been created, bringing together 101 sites for adults and young people with the aim of aligning service provisions where appropriate, while recognising the different pathways required for different ages. There are 37 youth pathfinder sites in this operation. The sites screen young people under suspicion of committing an offence, whether in police custody suites or in custody, and this will be followed by a full health assessment capable of identifying a range of vulnerabilities. One of the good things that has been done in recent years is the introduction of real health and mental health testing in this area. Again, I freely acknowledge that it carries on work from the previous Administration.
Energy: Electricity Supply
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma)
My Lords, the Government work closely with Ofgem and National Grid to consider the outlook for generation capacity each winter. Ofgem’s report is valuable for aiding this process. The Government are taking the necessary steps to ensure that we have enough capacity to maintain a secure electricity supply at the most economic cost to the consumer. This will be achieved through new system balancing services in the short term, if Ofgem decides they are needed, and then through the capacity market. We have confirmed that we will initiate a capacity market in 2014 for delivery in 2018.
Lord Ezra
My Lords, I welcome the measures proposed in the Energy Bill to avoid future shortages of electricity supply. However, as my noble friend has pointed out, these measures cannot come into effect until 2018. Meanwhile, Ofgem, in its report of 27 June, has pointed that reserve electricity capacity could fall as low as 2% by the winter of 2015. This has been brought about by more capacity being closed or mothballed than new plant coming in. Could not a better balance have been achieved, bearing in mind that Ofgem has been warning about this problem since 2009?
Baroness Verma
My Lords, my noble friend raises a number of very important points. While I cannot answer for what the previous Government should have done, since 2010, the coalition Government have been working closely with Ofgem and National Grid to address the security of supply as a very high priority. A significant amount of potential capacity is available through de-mothballed plant and demand-side response. The measures being consulted on by National Grid and Ofgem would, if used, enable the procurement of the amount of capacity needed to ensure security of supply, allowing them to respond accordingly.
Lord Dubs
My Lords, will the Minister confirm that in the middle of last December the lights virtually went out because there was no spare capacity at all, and if the weather had got a shade colder, the lights would have gone out? Is it not time that we made some clear decisions about our fuel supply in this country?
Baroness Verma
My Lords, the noble Lord is right that we need to make some secure decisions. That is why, through the Energy Bill, we are reforming the electricity market and also making sure that we have a greater diversity in the supply of energy. A key part of balancing the service is the short-term operating reserve that we already have. The National Grid aims to have around 1,800 megawatts of this reserve available every day across a number of contracts, so I can reassure the noble Lord that the lights will stay on.
Lord Howell of Guildford
My Lords, is the Minister aware that in Germany, CO2 emissions are rising very fast, they are burning more coal than ever, their solar industry has collapsed, and, of course, that they have banned any expansion or indeed any use of their nuclear power stations? Does she agree that that is not exactly an example that we want to follow? Is not the right course for us, as she herself has steadfastly urged, to get on and invest as fast as possible in new gas turbines and, in due course, when we can afford it, in new nuclear power?
Baroness Verma
I agree with my noble friend absolutely that we do not want to be a country that will increase CO2 emissions and that the path we have taken is a balanced one.
Lord Elis-Thomas
My Lords, does the Minister agree that this situation has been brought about by the failure of successive Governments to invest adequately in alternative low-carbon forms of renewable energy, and also to invest in new nuclear? Will she now agree that it is absolutely essential that projects such as the Horizon project at Wylfa B in Anglesey should go ahead as soon as possible?
Baroness Verma
My Lords, as I have said on a number of occasions at the Dispatch Box, the Government have taken very seriously the point that we need to ensure a diverse source of supply of energy. Among them, of course, are the renewable sector and nuclear.
Lord O'Neill of Clackmannan
My Lords, in the nuclear sector, will the Minister care to tell us how far we have got in the negotiation of a strike price? It was suggested some time ago that EDF was in a mood of cautious pessimism. Are we moving towards cautious optimism or is it just stalemate, as it has been for the last year and a half?
Baroness Verma
As the noble Lord knows, I am a person of great optimism and the negotiations are ongoing. We should be optimistic about what this country can offer for nuclear and for renewables.
Lord Cormack
My Lords, reverting to the point of balance raised by the noble Lord, Lord Ezra, does my noble friend agree that it is far more important that we keep the lights on than that we achieve a European target at a specific time? Perhaps some installations that are mothballed ought to be taken out of mothballs.
Baroness Verma
No, my Lords, the path that the Government have taken is absolutely the right one. A number of plants are mothballed, but, as I said earlier, they can come on board if we require them. At this moment, we do not require them.
Lord Stoddart of Swindon
Did I hear the noble Baroness aright, when she said that the spare capacity was 1,800 megawatts? If so, that represents only 4% of maximum demand. When I worked in the electricity supply industry, we believed that we could not run the system with less than 18% spare capacity. If we are down to 4%, we are in a very serious position.
Baroness Verma
My Lords, I said that we already have 1,800 megawatts to draw on, but that Ofgem and National Grid are consulting on whether, in the short term, we need to procure more.
Baroness Worthington
My Lords, is it not quite clear that the best way to solve any potential capacity crunch would be to focus on demand-side management and response? What has changed in our profile of electricity demand is that demand is now flat and falling. That can be encouraged with smart investment in strategies and policies that bring that forward at an even faster pace.
Baroness Verma
As the noble Baroness is aware— we are, of course, having rounded discussions through the Energy Bill—that is among the options we are looking at.
NHS: Out-of-Hours Services
(10 years, 9 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government when they became aware of NHS Direct’s concerns about the 111 service; what action they took; and what action they will now take to ensure the public can have confidence in out-of-hours advice services.
Lord Hunt of Kings Heath
My Lords, I beg leave to ask a Question of which I have given private notice. In doing so, I refer noble Lords to my health interests in the register.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, NHS England has closely monitored performance for all 111 providers, including NHS Direct, and reports weekly on performance to the Secretary of State for Health. NHS England will recommission NHS Direct’s 111 contracts and transfer staff who currently provide them to alternative providers. Patients should be reassured that they will continue to receive a safe and high-quality service when they call 111.
Lord Hunt of Kings Heath
My Lords, It is on this Government’s watch that a service staffed by unqualified call handlers has put patients at risk. When will Ministers take responsibility, and why did the noble Lord reject a plea from Dr Buckman, then chair of the BMA GP Committee, for the rollout of 111 to be slowed down because of risk to patient safety? Will the Government now agree to the release of all official advice given to Ministers on the service’s introduction?
Earl Howe
My Lords, the NHS 111 service is not unsafe—it is a safe service. In the vast majority of the country it has been provided very well for patients. We were confident that the service could be provided well, and so it has proved. The isolated cases where the service has fallen short are highly regrettable, but there is no issue about the quality of NHS Direct’s provision of NHS 111. I am afraid the issue there is that it got its sums wrong and cannot provide the service economically.
Lord Laming
The noble Earl will recall that in his response last week on the pressure on accident and emergency services, he referred to the change that had taken place in the GP contract that relieved them of the opportunity of being on call. Are the Government going to renegotiate the GP contract? If not, is there a possibility of placing a primary care service in every accident and emergency unit in the country?
Earl Howe
My Lords, we are straying a little from the Question before us, but I understand the relevance of the noble Lord’s point to the urgent care pathway generally. We are obviously looking very carefully at the GP contract. I cannot tell him at the moment how far negotiations have reached, because we are only at the start of the process. However, his point about primary care services in A&E departments is well made, and many A&E departments do indeed provide that to ensure safe triage of patients on arrival.
Baroness Gould of Potternewton
My Lords, during the process to establish this contract, concerns were raised by many GPs and others which, we are told, were ignored. Can there be a guarantee that this time there will be absolute full concentration and discussion with the relevant bodies, with the GPs and others, who want to be assured that the new contract, whenever it comes, is going to be valid and will work? How are we going to explain this process to the public, who are going to feel very uncertain about the future of 111?
Earl Howe
My Lords, I can give the noble Baroness that reassurance, because we want local commissioners and doctors involved in the process to be confident in the service that they are commissioning. We did not ignore the warnings from Dr Buckman and others in the BMA. Indeed, on the strength of that we allowed a six-month extension to those providers who felt they needed it to ensure that they were confident in providing a good service. Only two providers took us up on that, which seemed to indicate that our confidence in the service was not misplaced.
Baroness Jolly
My Lords, this is an issue around commissioning. As we have heard, CCGs can now commission NHS 111. Can my noble friend tell the House what support CCGs are likely to receive in commissioning these new services, and from whom?
Lord Reid of Cardowan
My Lords, may I gently advise the Minister against complacency? Many of these changes in the NHS will take time to show whether they are beneficial or otherwise. Anecdotally, the successor of NHS Direct—111—appears to be in turmoil, both practically and commercially. The deterioration in accident and emergency services is getting exponentially greater; trolley waits are back, and predicted potentially to reach crisis point. Sir Bruce Keogh’s report, if read carefully, identifies as underpinning many of the problems in the major hospitals a chronic shortage of skills and finance. Can I please ask the Minister not to accept this with any degree of complacency and to introduce some scheme of forensic appraisal of 111 and some of the other issues which are arising from what looks increasingly like a costly and disastrous reorganisation of the NHS?
Earl Howe
The last thing I would ever wish to be is complacent, and I certainly am not. Whenever problems and concerns arise, we take them extremely seriously. I do not think anyone takes issue with the concept of 111. Unfortunately, however, we have seen problems arising in a few isolated cases. I emphasise that the vast majority of the country is receiving a good service. Incidentally, there is no evidence that attendances at A&E have been affected by the rollout of 111; in fact, attendances have not increased since 111 was introduced—the figures have actually gone down.
Baroness Hayman
I wonder whether the noble Earl could help me, because I am genuinely puzzled about the current status of NHS Direct, its funding and governance, who makes decisions about contracts and whether they are viable or not. NHS Direct was set up as a national service, paid for and provided by the NHS. What exactly is it now?
Earl Howe
The NHS is a provider, in certain parts of the country, of the 111 service, and other services more generally. But there is a very distinct difference between NHS Direct’s old service and the 111 service being provided now, in that 111 is a much more comprehensive service. That was an area of agreement between the Government and the noble Baroness’s own party before the last election. I sense that I have not answered the noble Baroness’s question; perhaps she would like to ask it again.
Baroness Hayman
Since I can quibble about my own party as I am now a Cross-Bencher, I take this opportunity to say that I am not puzzled about the 111 service—but who is NHS Direct now? Who is responsible for its governance, its funding and decisions about whether it goes for contracts?
Lord Willis of Knaresborough
My Lords, may I try to redress the balance? There is a real sense that very significant numbers of people calling the 111 service get a good service. On 9 June, I had reason to call 111 because I was having a heart attack. The response from 111 was excellent, in York. At the same time not only did the service call the paramedics but it had me in hospital within 25 minutes to an absolutely superb accident and emergency service. If York can do that in such an efficient and superb way, why cannot we guarantee that service throughout the country?
Earl Howe
I am sure that I speak for all of us in saying how pleased I am that the service worked so well in the noble Lord’s case. The answer to his broader question is that the service is working well in the vast bulk of the country. Unfortunately, in two particular areas we have seen problems, which are being gripped, and I am confident that NHS England has taken these issues forward with the seriousness that they deserve. I am assured that, even in the areas where problems have arisen, the service is good.
Baroness Masham of Ilton
Would it not have been simpler to build on NHS Direct, which would have saved confusion?
Earl Howe
The difficulty there was that we were more ambitious than simply wanting a revamped advice service. This is a service that puts a patient directly in touch with a doctor if they need one, a nurse if they need a nurse, or an ambulance if they need an ambulance, without the need for call-back. It is also free of charge, which the old NHS Direct was not.
Public Bodies (Merger of the Gambling Commission and the National Lottery Commission) Order 2013
Lord Gardiner of Kimble
That the draft order laid before the House on 25 March be approved.
Relevant documents: 35th Report from the Secondary Legislation Scrutiny Committee, Session 2012–13, 9th Report from the Secondary Legislation Scrutiny Committee, Session 2013–14, 23rd Report from the Joint Committee on Statutory Instruments, Session 2012–13, considered in Grand Committee on 15 July.
Judicial Appointments Commission Regulations 2013
(10 years, 9 months ago)
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Lord McNally
That the draft regulations laid before the House on 20 June be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 22 July.
Lord Scott of Foscote
Before your Lordships pronounce on the satisfactory or unsatisfactory quality of these regulations, I have a point which I endeavoured to make when these Motions were debated in the Moses Room a week or so ago. It relates to the provision regarding the appointment of members of selection committees, whose job it will be, once the committees have been established, to deal with the applications for appointments to senior judicial roles. The arrangement is that senior judges—the president, the Lord Chief Justice, the Masters of the Rolls or whoever it may be—will have the power to nominate the members of these commissions. However, the regulations go on to say that, in the event that the Lord Chancellor of the day is of the opinion that the senior judge in question suffers from an incapacity—presumably an incapacity to discharge the role of nominating members of the commissions—somebody else has that power.
I am bound to say that, when I first read these regulations, I thought it was thoroughly unsatisfactory for a senior member of the Executive to have the power to pronounce on his or her belief in the incapacity of a senior judge to discharge a statutory function that would otherwise be exercisable by that judge. I made this point in the course of the debate in the Moses Room and, since then, the noble Lord, Lord McNally, has been kind enough to write me a letter about these points. He drew my attention to similar provisions that can be found in primary legislation—in particular, the Constitutional Reform Act 2005 but there was another Act that he referred to where similar provisions are to be found. I was not aware of that. It is profoundly unsatisfactory that provisions of that sort allow a member of the Executive to remove powers from a senior judge on the Executive member’s belief in the incapacity of the judge to exercise those powers without any apparent necessity for the opinion to be backed up by medical evidence or psychiatric evidence. It is not consistent with the constitutional requirement of the separation of powers and I voice these objections now.
The sting is taken away by the fact that similar provisions have already found their way into primary legislation but, nonetheless, the existence of these provisions is unsatisfactory. I wish I had known that they were there in primary legislation. I would have taken the same objections at that stage. It is difficult to see why the opinion of a Lord Chancellor, who is not a medical person or necessarily even a lawyer, on the incapacity of a senior judge to exercise a particular statutory function should by itself be enough to relieve the individual of the power to exercise that function. The House should be aware of this matter before allowing these regulations into legislation. I am not proposing that the regulations should be voted down but the House should be aware of this. I regard it as unsatisfactory in principle and, up to a point, unconstitutional.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the noble and learned Lord, Lord Scott, goes even further than he did in Committee. These matters are not unconstitutional. Let me be clear that the role of the Lord Chancellor to determine the incapacity of the Lord Chief Justice and the President of the Supreme Court is not newly created by these regulations. As the noble and learned Lord, Lord Scott, has acknowledged, this role is already set out in extant primary legislation. It is also true that these regulations come before the House after extensive discussions with the President of the Supreme Court and the Lord Chief Justice. The regulations have been examined in detail by the Justice Committee and I think by the Constitution Committee of this House—but I may be wrong on that. Certainly, they have gone through quite a thorough mincer of committees and they were discussed in Committee in the Moses Room.
The Lord Chancellor’s letter to the Scrutiny Committee set out in some detail why the normal procedure for determining incapacity of the Lord Chief Justice was not appropriate in these circumstances. In short, the heads of division who normally make this determination may themselves be applicants in the appointment process in question. Therefore, to ensure there is no perception of conflict of interest, they do not have a role. It may also be helpful if I explain why we consider it entirely appropriate for the Lord Chancellor to determine incapacity. The Lord Chancellor has a significant number of responsibilities through the process from requesting a panel is convened, determining the content of the panel’s report and, of course, making the final selection decision. The system is therefore reliant on the Lord Chancellor discharging a range of duties and powers appropriately. The Lord Chancellor, under Section 3 of the Constitutional Reform Act, also has a statutory duty to protect the independence of the judiciary. Therefore, if the Lord Chancellor were to determine incapacity where that was not in fact the case, this would be a breach of that duty. This means that in reality it is very likely that the Lord Chancellor would consult the relevant members of the judiciary to determine incapacity, but we do not consider it necessary to spell out the nature of that consultation in the regulations. That is particularly the case as relevant persons may be different in different circumstances.
As regards determining the Lord Chief Justice’s incapacity, it may be appropriate to consult him or her personally to determine whether, for example, the incapacity results from a planned operation; or it may be appropriate to consult the heads of division if they are not the subject of the appointments process in question. Alternatively, it may be appropriate to consult the President of the Supreme Court.
The role of the Lord Chancellor in determining incapacity is taken from extant primary legislation. We do not consider that the role gives rise to any risk of inappropriate behaviour, particularly as the Lord Chancellor could not, of course, do anything that would breach his overriding duty to protect the independence of the judiciary.
Extension of Franchise (House of Lords) Bill [HL]
Care Bill [HL]
(10 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Warner
“Initial funding assessment
Before enactment of Part 1, the Secretary of State must ask the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of adult social care that assesses—(a) the adequacy of current public funding of these services;(b) the proposals for funding the provisions in this Act; and(c) the implications of the Act and its funding for the NHS over the next five years.”
Lord Warner
My Lords, the purpose of this amendment is to give us a chance to discuss the funding of social care and the Bill’s provisions before we complete Committee, particularly given the continuing concerns that social care is seriously underfunded and is not in a good position to take on the changes—good changes, I should emphasise—in the Bill. Those concerns have been around for a long time and formed a major part of the evidence presented to the Dilnot committee and the Joint Select Committee on the draft Bill. I declare an interest in that I was a member of both those bodies.
On the whole, most people support the basic architecture of the Dilnot report and the Law Commission’s proposals enshrined in the Bill. They simply do not believe that the funding is in place to implement effectively the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding. This is hardly surprising, because the Government’s social care funding strategy seems almost designed to confuse. Eric Pickles curries favour with the Chancellor by signing up to swingeing cuts to local authority grants, which inevitably reduces social care funding substantially. Health Secretaries—quite sensibly in my view—then start slipping cheques from the NHS to local government to mitigate, to some extent, the Pickles butchery. Welcome as these cheques may be—but probably not to NHS England—they usually have strings attached and do not make good the shrinking base budget of adult social care, which, I have to mention to my noble friends, has been taking place since before the coalition Government.
First, a little history: the problems of funding adult social care predate the coalition, as the Dilnot commission made clear on pages 14 and 15 of its report. It stated:
“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.
Before the coalition, pay and prices in social care rose more quickly than general inflation. There was—and continues to be—rising demand as the number of older people and younger adults with care needs increases. Social care budgets rose by about 1% a year in real terms in the three years to 2010, compared with 5% to 6% for the NHS. We in the Dilnot commission showed that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding would need to change. However—and this is bad news for the Benches opposite—it has not.
The funding shortfall that the coalition inherited, of approaching £1 billion, has got worse. The LGA has estimated that just to keep up with demographic demand adult social care needs real-terms annual increases of about £0.5 billion a year. To put right the deficit and stop it getting worse, adult social care should start the next financial year, 2014-15, with a base budget at least £2.5 billion higher in real terms than in 2010. The reality is somewhat different.
The latest survey that I have seen from the directors of adult social services states that by next April local councils will have stripped £2.7 billion out of their adult social care budgets since 2010. I have heard Health Ministers say that this is being done by efficiency savings—so that is all right then. In practice, it has been done by denying people services, imposing tougher eligibility criteria and cutting pay and payments to service providers, with their impact on quality. These cuts have been mitigated by transfers the Government are making from the NHS by the start of 2014-15. On the basis of parliamentary Answers given to me, these look to amount to £1.5 billion in total over three years.
To sum up: the Government have not made good from the NHS what they have taken out, and have not protected the base budget against rising demand and inflation—something that the Dilnot commission said was essential if its proposals were to be implemented. My estimate is that adult social care starts 2014-15 with an underfunded base budget of at least £3 billion—some 20% of its budget.
I now turn to whether things get better between April 2014 and 2016, when the main implementation of the Bill’s proposals starts. Before the 2013 spending review, a parliamentary Answer to me suggested that approaching £0.9 billion would be transferred from the NHS to social care in 2014-15. Page 34 of the Government’s Spending Round 2013, suggests that another £200 million would be provided to progress the new pool budget scheme. However local councils still have to make another lot of savings in 2014-15, so it is difficult to see these not wiping out at least half of the transferred NHS largesse.
However, to be fairly generous to the Government, the £3 billion base budget deficit could drop to £2.5 billion by the beginning of 2016, assuming that the Government make the transfers that they promised. It therefore seems to me that, however you cut the figures, there is a pretty big hole in the base budget for adult social care in the year in which the first tranche of the Bill’s reforms begin. I am of course happy for the Government to provide me with chapter and verse in writing on why my figures are wrong.
Let me finish by turning briefly to the cavalry that the Government think is coming over the horizon—their proposal for a £3.8 billion pooled budget for 2015-16 to join up local health and social care services. Everyone in this House will welcome that pooled budget. I particularly welcome it as someone who was involved with the joint finance initiative of Barbara Castle, back in the mid-1970s. In some ways, we have not moved on very far. There is a considerable lack of clarity about this impressive-sounding figure. I therefore have some questions for the Minister.
First, can he say whether the total figure is dependent on the Department of Health making all the efficiency savings cited on page 34 of Spending Round 2013 and is safeguarded from any raiding to meet emergency demands by the NHS? Secondly, does the £2 billion that seems to be being promised to local councils for adult social care include the £335 million promised for the cap in 2015-16, as set out in paragraph 9 of the Government’s very recent document, Caring for Our Future: Consultation on Reforming What and How People Pay for Their Care and Support? Thirdly, will councils be paid the £2 billion at the beginning of the financial year, and how much of that will in practice be offset by the 2.3% reduction in local government spending in 2015-16, as set out in page 37 of the spending review document? This is typical of what we are seeing from the Government. Page 34 gives you some money and page 37 takes another lot away through another government department. It is a bit like the guys who practise conjuring with peas under egg cups. Finally, can the Minister confirm that £1 billion of the £3.8 billion will be paid only if local authorities can demonstrate outcomes? Therefore, in practice, the money may never reach the local level in 2015-16.
In conclusion, as a battle-hardened Whitehall warrior, I have to say that I suspect that the social care chunk of the £3.8 billion will look a lot smaller when we get to 2015-16. In principle, it is a bold and sensible initiative on which the Government are to be congratulated. However, it will not plug the gap in the base budget to which the Dilnot commission drew attention, and which has worsened since we reported. It is possible that the gap could be partially filled by the pooled budget proposal but a lot of question marks remain over how much of that budget will in practice help social care in 2015-16. I have to say to the Government that because of the funding inadequacies there is a real risk that people will be set up to fail with this new legislation. That is why the Government and, I hope, my own Front Bench should support an impartial review of the funding issues, as proposed in my amendment. I beg to move.
Baroness Pitkeathley
My Lords, I rise briefly to make two points, the first as a result of my membership of the Joint Committee. Every witness who came before us to give evidence said two things. The first was that this is an excellent Bill for which we have been waiting years. The second was that implementation will be impossible if no more money is put into the system. All our witnesses said that the current proposals for funding are totally inadequate. That is exactly what I feel in my role as a campaigner and spokesperson for carers—and this is my second point. The Bill is all that I could have dreamed of in terms of rights and recognition for carers but will come to nothing if all that results are fewer services that are harder to access, with more pressure being put on carers to do the caring. I am seeing that now in carers’ groups and organisations. They were elated when the Bill was published: now morale is plummeting for fear of what the reality may be.
I join the noble Lord, Lord Warner, in asking the Minister for chapter and verse in his call for a review. We all want the Bill to succeed but we cannot, as responsible legislators, ignore this important issue.
Lord Lipsey
My Lords, I should have put my name to this excellent amendment.
It would not be the first time that the OBR has looked at this issue because there is some valuable material in its report on fiscal sustainability in July 2013, to which I will return in a minute. My noble friend concentrated on how serious the problem is now and how serious it will be in 2016. Perhaps I may detain the House for a few minutes to describe the slightly further away prospect because, if we are in problems now, we shall be in crisis unless something major changes within the next eight or 10 years.
The demographic factors have been widely appreciated, most notably in the report from the Select Committee of your Lordships’ House, Ready for Ageing, which indicates that there will be 39% more people aged 85 and over by 2021 compared with 2011, and 101% more—more than double—by 2030. The Select Committee concluded that what will happen is that they will get shoved into hospital, which will be,
“contrary to their wishes, not in their best interests, and more expensive”.
That is not a very good prospect. Moreover, as the OBR has shown, there is the prospect that stays in residential care may get longer and, therefore, cost more. It calculates a variant with a 20% longer stay, which is not implausible. So, just demographically, the situation is very difficult.
However, some less noticed factors all point the same way and add to the pressures. The most prominent factor is workforce issues. Many of your Lordships will have read the excellent report produced last week by the King’s Fund. It projects that by 2025 there will be a shortage in the care sector of 1 million workers—that is 35% of the current workforce. That is assuming that the Government’s immigration policy does not bite even more sharply than we think. You have only to go into a home to see how they are kept going by caring people who have come from overseas and are willing to work for the minimum wage, or near it, to look after our older people for us. Given the Government’s policy, these people will increasingly not be available for this purpose and so wages will inevitably go up. That will be a good thing because these people are terribly underpaid for what they do—it amazes me that the services are as good as they are, not that they occasionally fall short—but the cost to the Government is very sensitive to wages: it is the main expense because around 70% of the costs of an old persons’ home are paid out in wages.
The trite response to that is, “Let productivity increase”. However, in this sector, where one person looks after another, an increase in productivity will invariably lead to a decline in the standards of service. We know this because productivity is going down—it is down 20% over the years 1997-2010—simply because we rightly expect better services for people in the homes. There is no offset available through productivity. Those are the workforce issues.
As to the related fees shortfall, the system works at the moment by local authorities paying rock-bottom prices for the care they buy and self-funders paying rather more. The noble Baroness, Lady Greengross, sees this as an unfair tax but, being an economist, I know about marginal and average costs and I am therefore less shocked than I should be. However, it is a fact that it is taking place. The shortfall in fees over what will be necessary to provide an economic return for these homes would have cost local authorities £540 million in 2008-09, according to the latest published study by Laing and Buisson, to get the fees up to a level where they provide a reasonable return to the homes.
However, it will be much more difficult under the Bill’s scheme, because at the moment self-funders have no idea what the local authorities are paying for the same places that they are enjoying; they are not told. I was glad to hear the Minister confirm that under the Bill, self-funders will be told what the local authority pays. They will have to be told because the amount the local authority pays is what counts towards the cap. Thus a self-funder may be told that while they are paying £700, the local authority is only allowing £400. Your Lordships can imagine what is going to happen. I do not think that many self-funders will say, “Oh, I’ll be delighted to go on paying £700. After all, I may benefit from the cap if I live for a very long time”. They are going to be enraged. It is not a system that can be sustained. I have no doubt that the fees paid by local authorities and the fees paid by self-funders will come closer together, and that will mean increased bills for local authorities.
Baroness Wilkins
My Lords, I, too, speak in support of the amendment in the name of my noble friend Lord Warner. I have said before that I warmly support the principles behind the Bill and the modern framework that it provides for social care. However, there is a world of difference between principle and delivery, and many things determine that difference.
Money is not everything, but the lack of it can mean the difference between certain misery and a chance of happiness, between one’s health deteriorating at an unnecessary rate and being maintained at its possible best, and between mere existence and feeling wholly human. Little will change for the better unless social care is adequately funded—and not just by funds transferred from an increasingly strained health service. As has been reiterated many times throughout the debates on this Bill, social care is in crisis. In the past few years, as the Care and Support Alliance has shown, many tens of thousands of people have lost vital services as a result of tighter eligibility criteria. Their needs have not changed; they have simply been redefined out of care, leaving them in many cases more isolated and, in some cases, at greater risk. The strain on family members has also increased as a result.
At Second Reading I raised the fears of the more than 20,000 disabled people with high support needs who have been funded by the Independent Living Fund to live independent lives. They fear a return to institutional care now that the fund has closed and the funding responsibility transferred to local authorities. I asked the Minister then for a reassurance that their fears were not justified and that the transition funding would not finish after one year. Sadly, he was unable to give any such reassurance, so the situation for more than 20,000 severely disabled people threatens to become much worse. As we know and have already heard, local authorities have been required to implement swingeing budget cuts for some time, most recently a cut of 10%. Can the Minister give that reassurance now? His department must have calculated the funding that local authorities require.
On 18 July, the Government launched the Caring for our Future consultation on reforming what and how people should pay for their care and support. This important document is over 100 pages long and covers a complex set of questions that are difficult for most of us to get our heads around unless we are specialists in the field. What plans do the Government have for making sure that people using care and support services and their carers are fully involved in the consultation and given the necessary information and support to make a constructive contribution?
There is no doubt in my mind that we must take a clear-eyed look at what funds would be sufficient for the aspirations of the Bill to be delivered. If we are to meet this once-in-a-generation opportunity to craft a care system that meets the real current and future challenges, we should remember that by 2030 the number of people aged over 85 is set to double; that is, a 6% increase every year on the 2013 figure. Are we prepared to aim for a decent level of well-being rather than accepting that thousands of our fellow citizens will live—and die—in misery?
Baroness Bakewell
My Lords, I endorse and support the amendment in the name of my noble friend Lord Warner. We have been watching a very impressive Bill go through this stage. If it is not funded properly, the political and social fallout in terms of the disappointment of an entire generation will be catastrophic. That generation will simply lose the trust that it puts in our capacity to legislate for the needs of society. That is what is at risk and why we need this review of the funding. I have not been a part of the debate so far and I will simply speak to one particular aspect of it, the postcode lottery.
Last week, the Office for National Statistics issued figures for life expectancy which show clearly the disparity between the north and the south. The lowest life expectancy for men is in Blackpool; for women, it is in Manchester. The highest life expectancy is in Dorset. That is not at all surprising. Dorset has the highest number of care homes in the country and has pioneered an outstanding care policy throughout the county based on early intervention and the reabling of people who fall ill. The county has found that this saves money and lives, and citizens are living longer because of it. It is exemplary.
It is not the same in the north of England. I was at a conference recently of the Local Government Association and I was constantly made aware of the pressures that councils in the north are under to trim their funding. Various statistics exist, but it is clear that the budgets of local authorities have fallen considerably. As was debated at the conference, the result is that the eligibility criteria are being squeezed across the north. It made me realise that councils in the north find it laughable that the cap of £72,000 for care should have any meaning for the citizens who live there. The outlook in the north is totally different from that in the more prosperous south. It is not as clear-cut as that, but I am generalising because it is important to grasp how fundamental the difference is. What I want to ask the noble Earl is this: does the funding under the Bill adequately address the increased disparity of care across the country?
Baroness Greengross
My Lords, I support the amendment of the noble Lord, Lord Warner. I partly echo what the noble Baroness, Lady Pitkeathley, said, because I think that the Bill is one of the best that we have seen in a long time. It really could meet our hopes and aspirations, but I am so worried about funding. We know that the funding seems quite generous, but the noble Lord, Lord Warner, did not mention that when he or Sir Andrew Dilnot talk about bringing these proposals into reality, if we set them against the costs of the NHS more widely, a minute part of the costs need to be covered to make the social care provisions real and thus take away the purely crisis intervention that we can see is on its way, as well as a complete lack of preventative care. That is what we hope for. I hope that the noble Earl will think again about the amendment so that we can keep the costing and funding of this under consideration on a regular basis.
Baroness Campbell of Surbiton
My Lords, briefly, I support the amendment of the noble Lord, Lord Warner. I will be brief, as I do not have a second voice. I draw the noble Earl's attention to the fact that, two years ago, the Joint Committee on Human Rights held an inquiry into Article 13 of the UN Convention on the Rights of Disabled People. Article 13 covers the right to independent living. At the time, we were given considerable evidence that disabled people’s right to independent living was beginning to be severely thwarted by the funding situation in this country. We heard very worrying evidence of disabled people losing their independence in our society—the independence that, over 20 years, they had developed. They were working and having families, and being part of society.
Lord Hunt of Kings Heath
My Lords, this has been a very interesting debate. I open on today’s Committee by declaring interests as president-elect of GS1, chair of a foundation trust and a consultant trainer with Cumberlege Connections.
There is no doubt that the backdrop to our discussion is one of the availability of resources. As every day goes by in Committee, we have discovered new responsibilities being placed upon local authorities: the provision of information and advice; the assessment of adults’ and carers’ needs for support and the provision of that support; the implementation of the national eligibility criteria; the Dilnot proposals; and the assessment of self-funders.
I am sure that my noble friend Lord Lipsey is right. We have said a number of times, without really getting a response yet from the noble Earl, that the moment that self-funders become aware that they are essentially subsidising the people funded by local authorities, there will be an end to that. I am absolutely convinced that self-funders will express the view that they ain’t going to put up with it. I wonder whether the Government have thought through the implications of that. I doubt that they have, but those implications will have to be thought through. People will not find it acceptable to be paying above the local authority rate, then taking longer to get to the £72,000 cap, and then finding that the local authority will fund them only at its rate, with potential consequences for where they can be provided with care. It will possibly not be in the care home to which they have already been paying for their own resources. There is real concern about the financial implications of the Bill, which noble Lords all generally welcome, and the fact that the gap between the expectation and the reality could be very wide indeed.
We are of course confronted by the very difficult funding pressures that are on local authorities at the moment. Noble Lords have spoken eloquently about that. My noble friend Lady Bakewell pointed to the differential funding as a result of the Government’s change in formula as far as local authorities are concerned. That is why the Labour Party has called for £1.2 billion of NHS underspend to be transferred to social care over the next two years. However, that is just the start. We are going to see major demographic challenges, which will affect the NHS as much as social care. That is why my noble friend’s amendment has so much ingenuity in suggesting that the Office for Budget Responsibility be asked to complete a review of funding of adult social care by the end of 2014.
This has to be linked to NHS funding as well. I was very interested in a piece in the Independent this morning, emanating from Sir Bruce Keogh. It pointed out that for the NHS since 1948, the amount of money that has been made available has gone up by an average of about 4.5% a year. Now, he says, we are looking at no increase at all. I am not sure that the bodies for which the noble Earl’s department is responsible have woken up to that. For instance, NICE continues to produce guidance which, if implemented, would cost more money. The reports coming from royal colleges and the Keogh review of the 14 trusts talk a lot about staffing deficiencies, but the whole thrust still coming from these reports is to increase expenditure. There is genuine concern that we are talking up the expectation on health and social care knowing that at the moment we cannot see our way to finding where the resources are going to be. Without making this too much of a political debate, I thought that Mr Lansley’s comments in the run-up to the previous election in relation to the so-called death tax were very unfortunate in trying to get a dispassionate debate about how we are to find our way to funding health and social care in future.
This is a very interesting debate. My noble friend has done us a great service in allowing us to discuss this in depth. I hope there may be some sympathy from the Minister for the amendment.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, in some ways this is a reprise of an earlier debate we had in Committee, but none the less it has been valuable. I am grateful to all noble Lords who have contributed. I begin by saying to the noble Lord, Lord Warner, that I am in total agreement that care and support funding is vital. It is essential for the success of the reforms we have been discussing that these services are fully funded. I start by assuring the noble Lord on one key point, which is that the costs of these reforms have been clearly set out in the Bill’s impact assessment, as was our duty.
I listened with care to the case put by the noble Lord that the Office for Budget Responsibility should conduct a review of care and support funding. I do not believe that such a review would be necessary or desirable. As noble Lords will be aware, the Government recently announced the conclusion of the spending round for 2015-16. It is only right that decisions on care and support funding are taken by the Government at the same time as spending plans are set for all areas of government. It is the job of the Government to decide on priorities and what is affordable. Any further review by the OBR would clearly cut across that process.
There is also an issue about the OBR’s autonomy. The OBR performs its duties independently with complete discretion to determine the content of its publications and its programme of research and analysis. It would not be in keeping with the OBR’s duties or its independence to have the Secretary of State commission a report in the way the noble Lord, Lord Warner, suggests. The main duty of the Office for Budget Responsibility is to examine and report on the sustainability of public finances, including a statutory obligation to publish an annual fiscal sustainability report. The most recent of these was published this month and already includes long-term projections of care and support spending, taking account of the cap on care costs and the extension of the means test. A further report, such as the one proposed by this amendment, would risk duplication and repetition.
It will perhaps be helpful if I confirm that the projections set out in this OBR report are broadly in line with the department’s own, and it is on the basis of this analysis that I am in a position to say that the spending round settlement delivers the funding required for the care and support system. We have identified the financial burdens facing care and support, including those arising from this Bill and demographic pressure, and we are putting enough money in to maintain service levels. This will ensure that care and support can be protected and will allow us to deliver on the reforms set out here.
However, we need to do more than simply put more money into care and support. We also need to improve the way that health and care is delivered, and in particular how these services work together. That is why the settlement includes a £3.8 billion pooled health and care budget—the noble Lord, Lord Warner, referred to this—which will be given only on the basis that services are commissioned jointly and seamlessly between the local NHS and local councils.
This is, in many ways, a historic moment. What we intend to do represents a genuinely new departure. It will help to ensure everyone gets a properly joined-up service, with people getting the care they need from whoever is best placed to deliver it—whether that is the NHS or the local authority. Chris Ham from the King’s Fund has welcomed this, calling it,
“a much more ambitious approach to delivering integrated care and a real opportunity to improve the co-ordination of services for patients and service-users”.
We will ask local areas to work collaboratively together in drawing up plans for the use of this money, ensuring that the priorities of both the NHS and care and support are addressed. All plans will include a commitment to protect care and support, ensuring that this money goes where it is needed.
The settlement also provides the funding for the commitments and duties set out in this Bill, and factors in the growth in demand from an ageing population and a growing number of disabled people. With additional pressure on the system, we must ensure that the NHS and care and support services are working together to offer the best possible services for patients, while also addressing the growing demand on the system, which noble Lords have rightly referred to.
The creation of pooled budgets will help to achieve the more efficient use of resources in the system as a whole, driving down costs by tackling expensive pressure points in the system, like A&E, by improving preventive services, reducing unplanned hospital admissions and by allowing people to stay in their homes and live independently for longer. It is intended that £1 billion of the pooled fund will be linked to outcomes achieved, ensuring that local areas are incentivised and rewarded for achieving better outcomes, including those that could reduce financial pressure on the system.
Noble Lords have rightly referred to the pressure on local authority budgets. Of course, we recognise that the last spending round provided local government with a challenging settlement. That is why we took the decision to provide extra funding to help local authorities maintain access to services; that includes £1.1 billion in 2014-15. In fact, spending has been roughly flat over the period since 2010-11. The latest survey shows that councils are expecting a small increase in expenditure next year. The survey also shows that the vast majority of the savings that have been made have been efficiencies. Councils have largely been able to protect services. They should now, however, be looking at how they can transform care by innovating and exploring new ways of working. Many local authorities are achieving much greater integration between health and care services and thereby improving the care for those they look after.
The latest ADASS budget survey shows that only 5% of directors of adult social services believe that quality has suffered as a result of the savings they have made. Five per cent is regrettable but it is a lot less than some of the figures that we see printed in the media.
In 2012-13, bed days lost because of delays attributable to social care were nearly 50,000 fewer than in the previous year. One of the other criticisms one hears is that quality is getting worse in social care and that that is having an impact on the NHS. But if we are going to continue to make these sorts of improvements, we need radically to rethink how we deliver health and social care and move to a more integrated system.
Lord Hunt of Kings Heath
I accept the noble Earl’s point, which he has made before, that local authorities sometimes pay less than self-funders because the self-funders are paying for a premium service. Often, however, the service is the same. I wonder whether that is not a legitimisation of what happens. Most organisations representing self-funders feel that the higher premium they pay is actually subsidising the rates paid by local authorities. If the Government are saying that the lower rates are because of bulk purchasing, quite a lot of convincing will need to happen to make people feel confident that that is the case.
Baroness Wilkins
The noble Earl says that that transition funding has been taken into account. Can he also confirm that that is for beyond one year? Or is it only for that one year?
Earl Howe
I will come back to the noble Baroness on that question.
I take the point of the noble Lord, Lord Hunt. It could clearly be a source of resentment on the part of a self-funder if they find out through the transparency of the arrangements that we are putting in place that they are paying more than the cost of somebody else’s care. I can tell the noble Lord that we have given thought to that. It has been discussed with the LGA. I would be happy to flesh out the substance of our discussions, but we want to avoid a situation that gives rise to that kind of resentment.
The noble Baroness, Lady Wilkins, asked what plans the Government have to make sure that service users and carers are able to contribute fully to the consultation on funding reform. We intend to arrange a series of consultation events around the country to engage with those who use services, their carers and their families. We will also work with stakeholders to make the best use of their networks and local groups to make sure that we consult as widely as possible.
The noble Baroness, Lady Bakewell, asked a particular question around what she termed the “postcode lottery”, and, of course, I understand the force of that phrase. She asked whether the funding of the Bill adequately addresses the disparity of care and support across the country. The short answer is that the Care Bill provides for national eligibility criteria. That, of itself, will provide greater transparency and consistency for people across the country. I do not think that we will ever completely get away from variation in what local authorities are prepared to consider adequately meets the needs of individuals and we will see some independence of decision-making, whatever we do. However, I firmly believe that the Bill brings us much closer to greater consistency and fairness.
On top of the spending-round announcements, I believe that the Bill will have a positive effect on the NHS by strengthening joint working between health and care and support. For example, Clause 3 requires local authorities to exercise their functions with a view to ensuring integration between health and care. In addition, Clause 2 creates a clear legal duty on local authorities to ensure the provision of preventive services. We want a service that reduces dependency, as well as supporting those who already need care and support, rather than just waiting for people to reach a crisis point. By slowing and preventing the development of care needs, the onset of health conditions or the loss of independence, we believe that preventive care can increase quality of life for individuals, while having the potential to provide longer-term financial savings to the public purse. It is only with this greater focus on prevention and integration that both the NHS and care and support can respond to the financial pressures of an ageing population.
The noble Lord, Lord Lipsey, took us forward to 2025 and beyond and referred to the shortage of workers in the social care workforce predicted by the King’s Fund. Of course, we agree that reforming care and support to make it sustainable for the future will require more capacity and greater skills in the workforce. That is why we stated our ambition in the Caring for Our Future White Paper to double the number of apprenticeships in social care to 100,000 over five years. We are now working with stakeholders to make that ambition a reality.
The noble Baroness, Lady Campbell, speaking powerfully about the areas that she knows best, said that disabled people feel that they are losing their independence as a result of funding cuts, and, indeed, there is a fear that the country unwittingly may be breaching Article 13 of the UN Convention on the Rights of Disabled People. A local authority’s overriding duty under the Bill is to promote well-being. This includes control by individuals over their day-to-day lives, including the way in which care and support is provided. We are confident that the well-being principle captures the outcomes that affect an individual’s independence. We should always keep going back to that principle, not least in the context of the rights that people feel they have—and do have—under the UN convention.
In so far as I have not answered questions from noble Lords, I will, of course, follow up this debate in writing. For the time being, I hope that, for the reasons I have outlined, the noble Lord, Lord Warner, will agree to withdraw his amendment.
Lord Warner
My Lords, this has been a helpful debate and I am grateful to all noble Lords who have spoken in it—overwhelmingly, I should add, in support of my amendment. I take great confidence from that.
The noble Earl has made not a bad job of answering my four questions about the £3.8 billion. I am feeling generous and so will give him a B minus for his attempts. At least he has come clean that only half the money is new money, which is a helpful clarification, and that only half of the £1 billion of the rest will be paid up front, while the rest is dependent. Therefore, to some extent my point has been made that that £3.8 billion looks a little less glossy than when it was announced in terms of what new money people will get in 2015-16. I notice that the noble Earl did not answer my question about the base budget, which took up much of my speech. The bottom line in all this is that the base budget is very deficient. The local authorities which will take on these new roles are starting, essentially, from a deficit position.
The noble Earl is always one of the most plausible Ministers and has done a good job of explaining efficiencies and productivity. However, the people who gave evidence to the Joint Select Committee just do not believe that this has all been achieved through efficiencies. They are seeing cuts in services and tougher eligibility criteria. The interesting mini-debate we had about the difference in payments for publicly funded people in care homes and self-funders illustrates that local authorities have been cutting the rate for the job for those who they pay for. We will see more of that. Until we face up to this base budget issue, we will have a problem.
I do not doubt that the Government have done a pretty reasonable job of costing the new provisions in the Bill. However, it will be introduced on the basis that the underlying base budget is too low. No one has yet answered my question with very much confidence about the fact that we are talking about a base budget deficit, which is in the Dilnot report, and which in broad terms has risen two and a half times since this Government came to office. That is the nub of this issue.
The noble Earl also glided over with his usual elegance the issue of why the Government are so preoccupied with this rather strange way of giving money to local government. First you see the Department for Communities and Local Government take money away and then local authorities have to cut other services if they want to prop up social care. Then Health Ministers, almost in desperation and worried about the implications for the NHS of what is happening to social care, long before they were betting the farm on integrated care, are—perfectly understandably—starting to slide money across to prop up social care. That is what is going on. If I were a director of social services these days, I would find it rather difficult to plan my service response to a kind of resource allocation system based on that kind of approach. That is a real problem for central government, which is expecting local authorities to plan well for these new changes. It is a pretty messy way of giving money to people at the local level.
I will read very carefully what the noble Earl has said in this debate. I am not convinced that we do not need an impartial review. If it is not the OBR I will think of somebody else. I might try a few on the noble Earl during the Recess—the Institute for Fiscal Studies comes to mind. We need a hard look by somebody who is not party pris. If my own party wins the 2015 election, it will need that hard look as well. I will think about it further, but in the mean time, I beg leave to withdraw my amendment.
“Access to appeals for care decisions
(1) In this section “the Tribunal” means the first tier Tribunal.
(2) Where a local authority—
(a) makes a decision under section 13(1) that some or all of an adults needs meet the eligibility criteria, or none of their needs meet the eligibility criteria,(b) exercises its power to charge for meeting needs under section 14,(c) completes a financial assessment under section 17, (d) makes a determination under section 18 or 19 that it must or may provide services to meet the adults care and support needs, (e) makes a determination under section 20 that it must or may provide services to meet a carers needs for support,(f) has prepared or reviewed a care and support plan, or a care plan under section 25 or 27,(g) has prepared a personal budget under section 26 or 28, or a care account under section 29,(h) the outcome of an inquiry under section 41,an application may be made to the tribunal within the relevant period.(3) The relevant period shall be prescribed by the Secretary of State in regulations.
(4) An application may be made by the relevant service user or carer who is the subject of the relevant decision listed in subsection (2).
(5) An application may be made by any other person with leave of the Tribunal.
(6) The powers of the Tribunal are to—
(a) dismiss the appeal,(b) allow the appeal and quash the decision appealed against, and(c) remit the case to the local authority to dispose of in accordance with the directions of the Tribunal.(7) The Tribunal shall have powers to order costs as it see fit.
(8) The Secretary of State must make regulations concerning the process and procedures of the Tribunal.
(9) In making regulations under subsection (8), the Secretary of State must seek to ensure adequate service user and carer representation on the Tribunal.”
Lord Dubs
My Lords, it is very clear that this Bill puts upon local authorities enormously complex duties as regards assessing the care needs of disabled people. The way in which local authorities exercise those decisions will have a major impact upon the lives of elderly and disabled people and may well occasionally be unjust or factually inaccurate. This will not be deliberate, but it sometimes happens in the nature of decisions that are so difficult and sensitive. The purpose of my amendment is to give the Government a duty to set up a tribunal system for issues such as individual eligibility, care plans, the level of personal budgets, and cases where individuals believe local authorities have made errors of fact or law in their decisions. Issues such as these can be challenged and put to the test. It is a complex area and I say at the outset that this is a probing amendment. Although it is quite detailed, I appreciate that the issues are difficult and will need further thought. I am anxious to see what the Government’s response is at this stage.
It hardly needs to be said how crucial these decisions are for elderly and disabled people. The system is hard for individuals to navigate. People often feel that they are powerless in the face of such a complex system. Where people lose out, in terms of the assessment made of them, they can in the worst cases feel trapped in their own homes, unable to get to work, unable to get out, depressed, and perhaps even suicidal. The consequences can be very serious indeed. They may be left in a vulnerable position without any ability to achieve redress.
The Government, in response to the Joint Committee, said,
“it is vital that people have an effective way to complain and seek redress that provides real challenge, particularly to the decision-making process.”
That is fair enough, but I cannot see anywhere in the Bill where the Government have actually done that. Perhaps I have missed it. The point of my amendment is to give people precisely that safeguard.
The Government may say there are other ways of doing this, such as going back to the local authority and persuading it that it has made a mistake. That is not very easy to do. One might be able to require the local authorities to have a route by which individuals can formally request reconsideration of care decisions where they believe an error of law or fact has been made. Again, this is not an easy thing to do. One might even go one step further and require local authorities to convene an independent panel to consider social care decisions where there is a dispute between an individual and the local authority. In theory, such options might work; but in practice one would have to be absolutely convinced that every local authority would do it, and do it properly. I am bound to say that although some local authorities might be willing to move in this direction, I am not convinced they all would.
The difficulty is that there are alternatives. One alternative is judicial review. However, we do not want to be standing here and telling elderly and disabled people to go through the costly business of a judicial review in order to get redress for what ought to be a simple procedure. Although my amendment is fairly lengthy, what I have in mind is a process that should be simple. Not all tribunals need to be complicated. Indeed, we know in the scheme of things that some tribunals can work quickly, efficiently and in not too costly a manner. I hope the Government will not say that people can take the option of judicial review and that is okay, because I do not believe it would be. In any case, going for judicial review would be a costly additional burden for local authorities, and I do not think anybody wants that.
Let me repeat—it is inevitable that, on a national scale, some mistakes would be made. You cannot devise a system, with the best will in the world, where mistakes are not made with regard to individual assessments. So let us not have judicial review at one end of the scale and mistakes at the other, for which there is no remedy.
I appreciate that any system of tribunals has some costs attached to it. I do not want to say to the Government, or to my friends in the Labour Party, that we should rush into this blithely, never mind the costs. I am aware that the costs must be of concern, and I do not want to stand here urging that something costly should be set up. But having some proper tribunal system of redress would be a much better way in which to resolve issues than to ask people to approach the local authority, and I do not believe that we would be left with all that many cases, anyway. I am hopeful, and I hope not excessively optimistic, that the tribunal system would be there in place for a few cases that could not be resolved in any other way. An appeal option must be a feature of any decision-making; it is so for many public authorities and should be in this particular instance.
Lastly, I have thought about the question of the Local Government Ombudsman, and I hope that that the answer given by the Minister is not his only answer. After all, the ombudsman is there to deal with maladministration and, although one or two instances might be susceptible to local authority ombudsmen looking at maladministration, I do not believe that that is the answer. It is for different sorts of instances, not for the sort that I am talking about.
What I am putting forward is a simple proposition. I want the Minister to respond in terms of the detail. I have said that I am concerned about the cost, so I hope that the Minister will not simply say that it is too expensive. I hope that he will not say that judicial review is the answer and will appreciate that I am putting something forward quite seriously. I am indebted to Leonard Cheshire Disability for the help that it has given me in some of the details that I have put forward in my remarks.
Lord Beecham
My Lords, I have a lot of sympathy with the case that my noble friend has put in establishing the structure that would permit appeals. However, there is one potential problem. I endorse what he says about the undesirability of requiring people ultimately to have recourse to judicial review, which is a lengthy and very expensive process. However, it is likely that people wishing to make an appeal to such a tribunal would need at least legal advice and, possibly, legal aid. I would imagine, as matters stand, that such a procedure would be out of scope of the legal aid system as it has been “reformed”—I put that word between inverted commas. Perhaps the Minister and my noble friend could indicate whether they think that it would be a sensible addition to the terms of the amendment, which would command a good deal of support across your Lordships’ House.
Lord Warner
My Lords, I briefly intervene from the perspective of a member of the Joint Select Committee, which proposed that there should be some kind of body. Much of our thinking was focused on the early days of these new arrangements. We thought it highly unlikely that there would not be a lot of disputes in the first few years of what would be a pretty major change to the arrangements. There are two sources of potential dispute—those by people who do not like the results of an assessment made about them, in some form or another, and some of the stuff that comes out of making markets. There is the issue of the rate for the job between local authorities and providers. We could see some of those areas also leading to disputes.
We had it in mind that some mechanism should at least be ready to go into action should this happen. It may be that, in the longer term, things will settle down and there will not be a great problem. However, even if the Minister is not prepared to accept my noble friend’s amendment and make statutory provision, the world would be reassured if the Government at least had a plan B so that we do not end up with judicial review if things do not go well. Rather, we end up with some kind of arbitration system which is low cost, speedy and can deal with some of the inevitable teething problems of a fairly major change to these systems.
Lord Hunt of Kings Heath
My Lords, subject to later comments about funding and the issues raised by my noble friend Lord Beecham, I have a great deal of sympathy with my noble friend Lord Dubs in wanting to have some kind of transparent appeal decision. It is clear from our debates on the Bill that local authorities will be called upon to make decisions which will have a fundamental impact on people living in their local authority area—eligibility, care plans, personal budgets, support for carers, self-funders baseline assessment and many more. We know that this will be hard for many people and their families to navigate. At the moment, it appears that the Government are relying either on local authorities themselves to develop their own mechanism, which might not enjoy public confidence, or on referrals to the Local Government Ombudsman. As my noble friend Lord Dubs says, that would be on the basis of maladministration rather than, perhaps, on the facts of the case.
Judicial review is hardly an option for many people. The reduction in legal aid will have an impact on the ability of places such as law centres to take JR cases forward on behalf of clients. I am the patron of Birmingham Law Centre, which has had to close its doors. In the last few years, the law centre was able to undertake a number of JR cases but it is no longer there to do that. The availability of a simple, low-cost appeal system would command some support.
When I was DWP Minister, I attended a day at the Birmingham tribunal centre looking at how cases were conducted. I was impressed at the ability of the three-person panels to allow the complainant to put their case across in a fairly informal setting with decisions made pretty rapidly. We know that these tribunal systems have been used more frequently with the introduction of the new arrangements. They command some public confidence. While I do not want to add to the financial burden on the system as a whole, I wonder whether it would be cost effective, as my noble friend Lord Warner says, for there to be a simple, fast, low-cost system. This will give people some confidence that, where they felt that the local authority had not made a reasonable decision, there would be allowance for it to be reconsidered. I am sure that this is a matter for discussion between Committee and Report and perhaps the noble Earl would be prepared to meet with my noble friend to discuss this further.
Earl Howe
My Lords, I am pleased that this important issue has been raised. I hope that I can provide the noble Lord, Lord Dubs, with at least a measure of reassurance relating to his concerns. As he has explained, the purpose of Amendment 104ZE is to include in the Bill provision for adults to make an appeal to the First-tier Tribunal if they disagree with the local authority about its decisions relating to matters such as eligibility, financial assessments, care and support plans and other obligations under this Bill. Often the individuals who access the care system are some of the most vulnerable in our society and it can seem daunting to challenge the decision of the local authority. I entirely agree that it is important that such people have the opportunity to make their voice heard if they feel that the local authority has reached the wrong decision in their case and that their argument is given the fullest consideration before a transparent, fair outcome is reached. The changes which the Bill would bring about will result in many more people being brought into contact with their local authority. This is why it is appropriate that we are now reviewing the current arrangements regarding complaints.
The current complaints arrangements for adult care and support were reformed in 2009 and are set out in regulations. The regulations require the local authority to have a publicised arrangement for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedure for dealing with complaints. Each local authority will have a different process, and we appreciate that local variation may result in varying user experiences.
If a complainant is not satisfied with the response from the local authority, they are then able to refer the case to the Local Government Ombudsman, as has been mentioned. The Local Government Ombudsman is independent of the local authority. It can investigate complaints about whether the decision-making process has been conducted appropriately and can make a recommendation to the local authority.
Earl Howe
Certainly, I anticipate that the results of the review will be available before the Bill has concluded its passage through Parliament. I stand to be corrected on that but I think I am right. In any case, changes to the way in which complaints are handled can be made through regulations under existing legislation, so I think that provides the necessary flexibility.
Lord Hunt of Kings Heath
Would the noble Earl find it helpful if, on Report, we introduced an order-making power in the primary legislation that is specifically built around the Bill?
Earl Howe
That might prove helpful but I will take advice on it. We do not want to duplicate powers that already exist in legislation. However, if we decide that changes are needed, we need to make sure that they can be expedited properly. I am advised that the consultation will close in October this year and that the review of complaints arrangements, of which the consultation is a part, will conclude in the winter. Therefore, if changes need to be made to the Bill, they will need to be made in another place.
The noble Lord, Lord Dubs, said that in our response to the Joint Committee it is vital to consider redress. Of course, the principle of that is not in dispute. Our review of complaints arrangements is in line with our response to the Joint Committee’s recommendation, as I hope he acknowledges. In answer to the noble Lord, Lord Warner, I agree with him that there are likely to be teething problems as this system is established. That is precisely why we felt the need to review the current system. We will aim to ensure that any new mechanisms are in place before implementing the new system, as I have already indicated.
With that, I hope that I have provided at least some reassurance to noble Lords opposite that we take this issue seriously. We understand the concerns that have prompted this amendment and will certainly give further consideration to the noble Lord’s idea of a tribunal system in the light of the outcome of the consultation. I hope therefore that for the time being he will feel content to withdraw his amendment.
Lord Dubs
I am grateful to the Minister and I am interested in what he has to say. First, I thank my noble friends who have contributed to the debate and for the useful suggestions that they made, some of which, however, have been overtaken by what the Minister has said. My noble friend Lord Hunt talked about a simple, low-cost appeals system. That is very much in line with what the Minister said. The only issue is what chance we have to discuss further the outcome of the review and the Government’s further proposals.
I think the Minister said that either it will be possible in the Commons to consider any proposals the Government put forward as a result of their review; alternatively, it may be done by order, in which case we would all have a chance to look at it. In any case, that takes us quite a lot further. I am grateful to the Minister for what he has said and I beg leave to withdraw the amendment.
Lord Patel of Bradford
““(5) In this section, “after-care services” means services to reduce the likelihood of the person requiring admission to a hospital again for treatment for mental disorder.””
Lord Patel of Bradford
My Lords, my amendment affects Clause 68(5), which aims to provide a definition of aftercare services as they relate to Section 117 of the Mental Health Act 1983. It was only just over 12 months ago, while debating amendments to the Health and Social Care Bill, that I was concerned about elements of that legislation affecting Section 117, which could have had a detrimental effect on the recovery of mental health patients. So it is a little disappointing that we have to rehearse some of those earlier arguments again today.
I must make it clear from the outset that this is not a probing amendment, nor does it seek assurance or clarification. It is an amendment that I believe is essential, and unless the noble Earl or the noble Baroness can persuade me of a better form of words, they should look to accept it. I will also tell the Minister from the outset that we are on the same side on this issue. We both want the same outcome, which is that this extremely vulnerable group of people covered by Section 117 gets access to all the help and services that it needs.
As the Minister outlined in his speech at Second Reading, the Government have already redrafted the original wording of the clause in response to the many concerns of mental health organisations in the country. However, it is clear to me and to them that we still need to do more to protect and safeguard this essential statutory provision. I apologise if I speak at length on this amendment, but it is essential that I make my case. I will try to be as logical in my arguments as possible; therefore, I will first outline why Section 117 is a unique statutory provision and needs the protection that Parliament intended it to have.
Secondly, I will highlight what the current drafting in the Bill does and why it will result in a detrimental effect. I shall conclude by explaining what I am proposing and why. I have taken time to explore many of the arguments and must thank the Care and Support Alliance, a consortium of more than 70 organisations, including Mind, the national mental health charity, which has been leading the charge on this issue. I also place on record my sincere thanks to members of the Law Society, especially Sophy Miles, the chair of the mental health and disability committee and counsel from the Mental Health Lawyers Association. It is also important that the Minister knows that I have received advice from Nicola Mackintosh, a principal solicitor, who is widely recognised as a national expert in community care, health and mental health law. I have taken seriously all their views on this issue.
First, what is Section 117 of the Mental Health Act all about and why is it unique? As noble Lords will be aware, that section concerns the provision of aftercare services for people who are discharged from hospital treatment after a period of compulsory detention in hospital. Parliament placed a joint duty on health services and local authorities to provide that aftercare. The group of people to whom Section 117 applies are the most vulnerable in the mental health system. They have been detained in hospital for psychiatric treatment following an established diagnosis. There are two groups, one of which is made up of those detained under Section 3 of the Act, and the other of those detained by the criminal justice system for in-patient treatment. It is likely that those in both groups will have had extensive previous contact with psychiatric services and support, which have failed them and been unsuccessful, hence they require longer-term detention for treatment.
These are therefore groups at the highest level of vulnerability because of risks to themselves, including their own health, or others. They are in a special group that has been recognised by Parliament as such. Among the statutory provisions in community care and healthcare law, Section 117 is unique in several respects. First, it relates to the duty owed to a particular individual. Secondly, it arises only in limited circumstances and for a very specific group of people, and is not a target duty. Thirdly, it is a joint duty placed on the relevant health authority and the social services body to work together to provide appropriate aftercare services, free of charge and for as long as necessary, and to sort out the funding between them. The aim has been to ensure that the group of people to whom the duty is owed receives the services at the time that they are needed, thereby avoiding extensive disputes about whether health or social care agencies are responsible.
Exactly which services are provided will depend on the individual’s needs and can vary greatly. The mental health code of practice stipulates for patients:
“As well as meeting their immediate needs for health and social care, after-care should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital”.
The code goes on to provide a fairly comprehensive list of factors for professionals to consider when creating an aftercare package. These include patients’ psychological and mental health needs, physical healthcare, daytime activities, appropriate accommodation, assistance in welfare rights and managing financing, social and cultural needs and specific needs arising from drinking alcohol. The services cannot be withdrawn until both the health body and the local authority are satisfied that the patient no longer needs them.
Let me give a real case example. A man was sectioned in 1996 when he was very unwell. Since that time, he has been stable and in receipt of joint supervision and support by the then primary care trust and social services. He lives in a London borough and qualifies for Section 117 aftercare because he was previously detained under the Mental Health Act. He is in a supported placement funded by social services. His social services care co-ordinator decided that he could be discharged from the care home and that there should be a review of the duty under Section 117 to provide aftercare. However, the patient’s psychiatrist strongly opposed this move, stating that his condition was only partially controlled by medication and that he continued to have challenging behaviour as a result of his condition. The psychiatrist strongly believed that the joint duty was still required, as was funding under Section 117, because the patient needed the supervision and safe environment that was provided in the care home. As a result, that duty to the patient has remained and he continues to reside in the care home. This example shows that the effective healthcare being provided to keep the patient stable and safe was directly dependent on the social care. However, social services saw only that he was managing in the supported setting, which led to the suggestion that he should move on, which could have resulted in a deterioration in his health and well-being, and eventually to his being readmitted to hospital. Without the joint duty, a decision could be taken regardless of the views of a patient’s medical team.
Baroness Barker
My Lords, I thank the noble Lord, Lord Patel of Bradford, for introducing this extremely important issue, which this House has addressed on a number of occasions, including during the passage of the Mental Health Bill, when the noble Earl and I were in opposition and argued very strongly for the retention of Section 117. It also came up during the Health and Social Care Bill.
I do not want to go into any detail because the noble Lord has done that excellently and there is no need for much more to be said. I would simply say that Section 117, which has been around for about the past 30 years, is the one piece of legislation that enables health and social care to work effectively together to deal with the needs of a very vulnerable group of people. It seems very odd, when the whole thrust of the rest of the Bill is aimed at integrating health and social care, that the one piece of legislation where that actually works is constantly coming under attack. People’s mental health deteriorates for reasons to do with their social circumstances as much as their mental condition. The noble Lord is right yet again to defend this piece of legislation and I support his amendment.
Baroness Wheeler
My Lords, my noble friend is right to express his frustration and dismay that, once again, we are faced with government proposals which would change the statutory provision of free aftercare services for people leaving hospital who have been treated under the Mental Health Act 1983 and people subject to community treatment orders—Section 117 services.
As we know, the Government have promised to address concerns about changes made to Section 117 in the code of practice guidance under the Act, but my noble friend has shown clearly today why the Bill’s current wording under Clause 68(5) needs to be changed. As it is drafted, it would have very serious consequences and cause complete confusion over the responsibility for provision of aftercare services for mentally ill people, which we all thought had been addressed and resolved last year under the finally agreed provisions of the Health and Social Care Act.
The current statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising due to the mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. Amendment 105 to Clause 68 instead defines aftercare services as those services designed to reduce the likelihood of a person requiring readmission for the same mental disorder. It is right that the definition of aftercare services focuses on reducing readmission to hospital and does not lead to confusion or legal disputes about a local authority’s role in this or about what services should be provided under Section 117.
Recent surveys by the mental health charity Mind have shown, generally, that many people with mental health problems are never properly assessed to see if they need social care—such as somebody to help with admin or household tasks, washing, dressing or something meaningful to do with the day. At least under the current legislation, people with mental health problems who have been treated under the Mental Health Act are entitled to receive free aftercare services when they leave hospital, and we must take care to safeguard that entitlement.
We on these Benches strongly support my noble friend’s amendment to ensure that that entitlement is carried through into the Care Bill. My noble friend has both the expertise and the dogged determination to pursue his case, and I hope that the Minister has some very good news for him today that addresses his rightful concerns.
Baroness Northover
My Lords, we understand and respect the desire of the noble Lord, Lord Patel of Bradford, to achieve the best that he possibly can for people with severe mental disorders and pay tribute to his many achievements in the mental health field over many years. We are indeed, as he said, on the same side. We recognise the special vulnerability of this group, and I listened very carefully to what he said.
The Government’s view is that our proposed definition of aftercare services meets the objective of providing clarity on the duty to ensure such provision. That will give greater certainty to those needing or providing aftercare so that it can be provided when it is needed. The inclusion of a definition of aftercare services followed a recommendation by the Law Commission that aftercare services should be defined in accordance with a two-limbed definition from the Mwanza case. This case law defined the services to mean services necessary to meet a need arising from the person’s mental disorder and aimed at reducing the likelihood of the person’s readmission to hospital for further treatment of the disorder.
The Government’s definition of aftercare services builds on the definition recommended by the Law Commission. That was the starting point for the definition. We accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. The clause now clarifies that the Section 117 duty requires services to be provided to meet needs arising from or related to the person's mental disorder, as well as reducing the risk that the person’s mental condition could deteriorate, requiring their readmission to hospital.
Following public consultation, the Government expanded the proposed definition to put it in the Bill in what we feel is a much improved form. The noble Lord’s amendment omits the first limb of the Government’s definition while making changes to the second. In particular, his amendment weakens the connection between the services required to be provided under Section 117—I assure the noble Baroness, Lady Wheeler, that we are fully committed to continuing those—and the specific needs linked to a mental disorder, meaning that the scope of the definition would be unclear.
The Government are concerned that this amendment may confuse rather than clarify the circumstances in which aftercare services should be provided. That would run counter to the purpose of introducing a new definition. If there are disputes over the aftercare services to be provided, the wait that some people would have to endure before the aftercare services would be in place to enable them to leave hospital could be prolonged, something which the noble Lord wants to avoid. In our view, given that it omits the criterion that services must have the purpose of,
“meeting a need arising from or related to the mental disorder of the person concerned”—
I can assure the noble Lord that the definite article does not simply mean something singular but encompasses the plural as well, something to which he briefly referred—the amendment is likely to give rise to more disputes and administrative uncertainty than would be the case with the clause as it stands. Examples of disputes arising under the current Section 117, with no definition, highlight why a statutory definition will add clarity. As highlighted by the Law Commission, having no definition means that the interpretation is left to case law, which has provided varying interpretations.
Nothing in Clause 68 will change the guidance in chapter 27 of the code of practice. It covers housing, employment counselling, and cultural and spiritual needs. The professionals involved include mental health professionals, GPs, employment experts, independent advocates and others. The proposed definition sets out the essential elements and requirements for services to fall within Section 117. The Government do not wish to be more prescriptive as aftercare services should be agreed by health and social care professionals as guided by the code. I hope that that reassures the noble Lord. This has to be done, of course, in the light of each patient’s particular needs.
Finally, the current clause introduces a purpose for Section 117 services to reduce the risk of deterioration in a person’s mental condition, which the noble Lord’s amendment leaves out. I found myself looking at his examples as he went through them. I could not see that they would be excluded by the definition in the Bill, so we see no compelling reason to alter the definition of aftercare from what has been proposed, which is based on research and consultation by the Law Commission and the Government. Perhaps I should propose to the noble Lord that we meet between now and the Report stage to discuss his concerns and make sure that they are not well founded. I am very happy to take this forward and see whether we can involve my honourable friend Norman Lamb in those discussions. I hope that, on the basis of this response, the noble Lord will be happy to withdraw his amendment.
Lord Patel of Bradford
I suppose the only bit of that I was pleased about was the proposal that we should meet. Unfortunately, I disagree with everything the Minister has said. The Law Society, the Mental Health Lawyers Association, Mind, and the Care and Support Alliance—an alliance of over 70 organisations—agree with me that the Mwanza case is completely unique and off the wall. It concerned someone who was sectioned nine years ago and had nothing to do with Section 117 services, but his lawyers were trying to use that as a basis to get free accommodation.
Baroness Northover
Does the noble Lord accept what I have just said: that it was doubt over cases like that which led the Law Commission to come up with a recommendation that there should be a definition as a starting point for where the Government would then take this?
Lord Patel of Bradford
I still have a problem because the definition is very clear, as the noble Baroness has said. It is about being related to “the mental disorder”. I know that the Minister said that this is standard legislative language and that it is not intended to be a singular disorder, but I disagree. First, the definition does not give us a sense that aftercare should be holistic and thus in line with the underlying well-being principle. Secondly, the use of the definitive article in “the mental disorder” is completely out of keeping with the Mental Health Act. I can give a couple of examples from some of the trigger sections of the 1983 Act. Section 1 of that Act defines mental disorder but Sections 2 and 3, which refer to mental disorder, have no definite article. The wording is completely separate from that of the Mental Health Act, so officials should go back to the drawing board and look at it a bit more carefully. It is very unclear and it poses huge legal arguments, as people will say that this is about “a mental disorder”.
Baroness Northover
Under the Interpretation Act 1978, words in the singular may include the plural.
Lord Patel of Bradford
I completely agree that legally that is what it means, but the 1983 Act does not use the word “the” in front of “mental disorder” in any of its important trigger sections. What is important is that it is not in keeping with the 1983 Act at all. Moreover, we have already seen local authorities trying to use this case. We should be dictating what happens. I am not sure whether the judge in that case—I do not know if I should be saying this—was by any stretch a mental health expert. I think he was a family court judge, so it was completely different. The Stennett case, which was appealed to the House of Lords, clearly stated a definition that was very different from this. We should not be dictated to by that; Parliament should dictate. The Bill will dictate what aftercare services are.
I am prepared to look at the definition I have crafted and without doubt there might be something that we can improve on. However, I agree with the noble Baroness, Lady Barker, that this is crucial because it is the only piece of statutory provision we have to make sure that statutory health services, the voluntary sector and social services work together. Time after time over the past 30 years local authorities have used any opportunity they can not to provide Section 117 aftercare services. It goes to legal action and then they back off. Why do it when we can resolve this? We do not need the first bit that says “the mental disorder”. Why introduce that level of doubt? We are on the same side and we can move forward on this, and we do not need to introduce any doubt. I am pleased that we have something to think about and to work together on and I am sure that between us, as we did last time, we will come to an amicable conclusion. In the mean time, I beg leave to withdraw the amendment.
Baroness Northover
“( ) In its application to an adult who is residing in any other premises because a requirement to do so has been imposed on the adult as a condition of the grant of bail in criminal proceedings, this Part has effect as if references to being ordinarily resident in an area were references to being resident in premises in that area for that reason.”
Baroness Northover
My Lords, the Government have tabled a number of amendments in relation to prisons to help clarify the interface between local adult safeguarding boards and prisons. This group of government amendments serves two purposes. Amendments 129 to 136 further clarify the relationship between prisons, approved premises and local safeguarding adults boards. Obviously prisons and approved premises retain a duty of care towards and responsibility for the safety of all their detainees. Mechanisms are already in place to hold them to account if there are concerns about the care or safety of prisoners.
Prisons have their own safeguarding procedures, so we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other prison staff to become members, rather than a statutory duty. This is the intention of the first part of subsection (7), which we believe should remain. As such, local safeguarding boards will not conduct inquiries or serious case reviews in relation to incidents occurring while someone is in prison or approved premises with care and support needs. However, we want there to be open dialogue between prisons and approved premises and local safeguarding adults boards so that the prisons and approved premises receive the information and advice which the board can provide for the benefit of prisoners and residents. This would not be possible with the draft clause as it stands. It is therefore our intention that safeguarding adults boards will be free to invite governors or other prison officers to sit on the board and, whether or not a member, governors, directors or controllers of prisons will be able to approach a safeguarding adults board to ask for advice and guidance in improving their safeguarding arrangements. I hope I have made the Government’s position in relation to prisons and safeguarding clear through these proposed government amendments.
I now turn to the remaining government amendments to Clause 69, Amendments 129 and 137 to 141, which clarify other matters. They make clear that a temporary absence from prison or approved premises will lead to someone continuing to be treated as detained in prison or residing in approved premises or other bail addresses for the purposes of this clause. The amendments also ensure that the rule in subsections (1) and (2), regarding which local authority is responsible for an individual’s care and support needs, applies to people bailed to addresses other than approved premises. Finally, the amendments remove the paragraphs which deem that once an individual has been sentenced to prison they are to be treated as detained in prison for the purposes of this clause. On reflection, the Government believe that these deeming provisions are not necessary. That also removes the unintended consequence that those given a suspended sentence would be treated as detained.
I now turn to government Amendments 105V and 105T. These would implement the recommendations set out by the Delegated Powers and Regulatory Reform Committee in its first report of Session 2013-14 in respect of regulations under Clause 22(2)(b), Clause 49(10), Clause 50(1) and (4) and Clause 59(2). The committee recommended that regulations made under Clause 22(2)(b) should require the affirmative procedure and that regulations for the remainder should require the affirmative procedure on the first exercise of the powers. We are happy to accept these recommendations and I beg to move.
Baroness Browning
My Lords, this is something of a miscellaneous group of amendments. I wish to speak to Amendment 105Q standing in my name and that of the noble Lord, Lord Touhig. I also refer the Committee to my interests in the register as far as autism charities are concerned.
This Bill must ensure that the duties set out in the statutory guidance under the Autism Act 2009 continue to apply to local authorities and local NHS bodies in order to ensure the ongoing implementation of the Act, which remains England’s only disability-specific legislation. The Act led to the publication of the adult autism strategy and the accompanying statutory guidance. When the Bill went through the House—I was on the committee when it went through another place—great play was made by the Minister of the importance of statutory guidance rather than having certain things on the face of the Bill. Ministers therefore have a responsibility to ensure that it is complied with. The guidance commits the Government, local authorities, local NHS bodies and other stakeholders to take action to improve the lives of adults with autism across England. This year, the Department of Health will undertake a statutory review of the strategy. This amendment seeks to ensure that the statutory guidance resulting from the Autism Act is embedded in the new legislation and that nothing that currently gives protection to people with autistic spectrum disorders slips through the net.
Lord Low of Dalston
My Lords, I shall speak more briefly, your Lordships will be pleased to learn, than I have in any of the debates we have held so far in Committee. I wish to speak to Amendment 105R. This is a probing amendment designed to seek clarification as to the meaning of Clause 72. The clause gives local authorities power to delegate some of their functions to other care providers. This raises the question of whether care provided under such delegated authority should be regarded as arranged by a public authority and therefore subject to the Human Rights Act. Clause 72(6) states that:
“Anything done or omitted to be done by a person authorised under this section … is to be treated … as done or omitted … by … the local authority.”.
This means that the local authority remains bound notwithstanding any delegation of its functions. But the Joint Committee on the draft Care and Support Bill recommended that the clause should be amended to state that the person with delegated authority is also subject to the same legal obligations as the local authority itself. It is argued that this should include obligations under the Equality Act 2010, the Human Rights Act 1998 and the Freedom of Information Act 2000. However, subsection (7)(a) puts the whole matter in doubt by providing that this does not apply,
“for the purposes of the terms of any contract between the authorised person and the local authority which relate to the function”.
The amendment seeks clarification as to what this means and an assurance that not only local authorities but also those who provide care under these arrangements will be treated as public authorities for the purposes of the Human Rights Act and other legislation.
Lord Touhig
My Lords, I shall speak to Amendment 105Q in my name and in the name of someone I am proud to call a noble friend, the noble Baroness, Lady Browning, who spoke to this amendment so well and eloquently. As law makers, we can be proud of the Autism Act 2009. It was a significant piece of legislation and it is well embedded. I look forward to the review of the autism strategy that the Government are now undertaking. This amendment will ensure that the duties set out in the statutory guidance continue to apply to local authorities and NHS bodies to ensure the ongoing implementation of the Act. There is much wisdom and common sense in this and I hope that the Government will support it.
Lord Patel of Bradford
My Lords, I shall speak to my amendments 105AA and 105CA, which affect subsections (6) and (7) of Clause 69. Amendment 105AA ensures that people in prison and those residing in approved premises have the same equivalence of care when it comes to safeguarding inquiries by local authorities under Clause 69(6). Amendment 105CA requires a senior member of the Prison Service to be a member of the safeguarding adults board in the area.
We just have to look at the figures in terms of the vulnerability of people in prison: prison suicide rates are 14 times greater than in the general population; over a third of offenders have self-harmed; many have a huge number of delusional disorders and personality disorders and a great many have drug and alcohol problems. This is all compounded by prisoners struggling to get access to services for a range of reasons, and they are impeded by waiting times and transfers within the prison system. Prisoners with complex needs may have too many different agencies to work with when they are released. Prisoners with such problems are particularly vulnerable, and the characteristics I have outlined are the norm rather than the exception. Providing appropriate care and support can have a significant impact on reoffending and greatly enhance people’s ability to rebuild their lives on release.
However, a huge lack of clarity around the provision of adult social care for prisoners has led to care needs not being addressed or identified, and this in turn has increased the risk of reoffending upon release. I welcome the clarity provided by the Government through this Bill, which places the responsibility for the adult social care of prisoners on the local authority where the prison is located. Clause 69 outlines the responsibilities of local authorities towards people in prison with care and support needs and ensures that they are able to access care and support on a similar basis to those in the community. The Bill confirms local authorities’ responsibilities towards this group by applying core duties to assess and meet needs on the same basis as for other groups.
However, I am concerned that, having made such a significant and welcome commitment to the social care of prisoners, people in prison and people residing in approved premises, which means people living in the community, they are not to receive the same equivalence of care when it comes to safeguarding inquiries by local authorities under Clause 69(6). I am pleased that government Amendment 105A allows safeguarding adults boards to provide advice and assistance to protect all adults in its area, including those in prison and residing in approved premises. This is a significant and positive step forward in helping to protect vulnerable individuals wherever they might be, and aids the support staff who work with them.
However, denying prisoners and people residing in approved premises the benefit of “enquiry by local authority” when safeguarding concerns are raised surely places an already vulnerable group of individuals at even greater risk. The offer of advice or assistance is no substitute for statutory inquiry when safeguarding concerns are raised. “Enquiry by local authority” not only protects the individual, it also helps to shine a light on some of the most hidden corners in our society. It is another tool to help ensure that our prisons are safe both for vulnerable prisoners and for the staff who work with them. An inquiry by the local authority does not duplicate the excellent work undertaken by Her Majesty’s Inspectorate of Prisons or by the prison itself. It complements and enhances them and, most importantly, it could help to save lives. While the Minister’s amendment is helpful, I feel that it does not go far enough. I would be grateful if she could give us a clear reason why such changes have not been included.
I am also pleased that the Minister has moved forward in enabling governors or prison officers to be members of safeguarding adults boards. I would say that they should be told to be on a board because we know how busy prison officers and staff are. If it happens on a voluntary basis, unfortunately we will get regular lack of attendance; people will not turn up to the meetings. It is important that we get some joint working between prisons and local authorities. Prison staff can learn from safeguarding boards, as they have done in Surrey, which is a fantastic example of prisons working with local authorities. Prison staff benefit from the expertise of social services and local authority safeguarding teams.
Lord Ramsbotham
My Lords, I support the noble Lord, Lord Patel, on Amendments 105AA and 105CA, and will comment on government Amendments 105B to 105D. I do so as a former Chief Inspector of Prisons who was closely involved with safeguarding inspections of children, which we were able to carry out thanks to there being a social care inspectorate in position at the time. The inspections were joint in that they covered a number of inspectorates, not just the Commission for Social Care Inspection. At the same time, I was conducting a thematic review of the treatment of the elderly in prison, who were causing intense concern. Unfortunately, at that time the social services that were responsible for the elderly in the country did not function in prisons. I had hoped for the adoption of what I understand the Government now intend to do: to make the social services responsible for the oversight of the elderly in prisons. In speaking to these amendments, I am conscious that the Government are almost there, but not quite.
I wonder, too, whether the Ministry of Justice actually consults with other ministries about Bills that affect prisoners. We are about to start the Committee stage of the Children and Families Bill. We have to try to remove a clause that prevents young offenders being subject to the pathways for those with special educational needs. Prisons are allegedly to be excluded. Only last Wednesday, the noble Lord, Lord Dubs, raised a question about jobseeker’s allowance and prisoners not having access to benefits in time. I wonder whether the clause not applying to prisoners was discussed or whether the Ministry of Justice has come to a view on something that will affect an increasing number of people in the prisons: the elderly.
There is an extreme need for local social services to be involved in prisons by statute and by right. With due respect to the Ministry of Justice and the Prison Service, when I listen to the Minister saying that “it will be left to the prisons” and that it “should” be statutory, or that they “can” invite members of safeguarding adults boards into prisons, I do not think that that is good enough. The track record, if you go into prisons over the years, is that it is not good enough.
The other thing is that people are simply not trained enough to be able to conduct the care that is so essential for the elderly element of the prison population. There are many concerns over the fact that too many staff have simply no idea about problems to do with dementia, which is but one of the issues. To phrase this provision loosely and say that somebody from a prison “may” be a member of the board is not good enough. It really should be laid down in statute that somebody must be a member. If it is not the governor, it must be someone from the senior prison management team. The other reason it must be a member of the senior management team is that people change. There is such movement in the staff of a prison that if you are not careful, you will not have somebody who knows what they are doing and knows the people in the local authority to contact if there is a problem with somebody who needs care. It is important to have it statutorily laid down not just for somebody to be responsible within the prison, but so that those who are responsible for delivering support and care know precisely who to make contact with. It is no good leaving it nebulous by just going to the prison and finding somebody. If you do that, you will find that the “somebody” is not there. I believe very firmly that someone should be made responsible and accountable for this.
I welcome the fact that prison officers and prison custody officers may be members of the boards, and mention has been made of the work done by HM Inspectorate of Prisons. That is fine, but only goes half way. I hope that the Care Quality Commission will conduct inspections of the safeguarding of adults in prison. The commission would use the other inspectorates, which will have something to contribute to that. As was done with the safeguarding of children inspections, they would be joint and not merely limited to one part. I very much hope that the Government will carefully reconsider these amendments, perhaps in consultation with the Ministry of Justice—which, I would hope, would have objected to these two clauses anyway.
Baroness Wheeler
My Lords, this is largely a group of government technical amendments, interspersed with amendments from noble Lords probing important aspects. On Clause 69, my noble friend Lord Patel’s Amendments 105AA and 105CA would ensure that local authority safeguarding inquiries do apply to adults in bail accommodation and, in respect of Safeguarding Adults Boards, would enable prison governors or other prison staff to be members of the board.
Government Amendments 105B and 105D address those issues. On safeguarding inquiries, the Government’s proposal to allow SABs to provide advice and assistance to persons in bail accommodation is a compromise. My noble friend has argued that that is not good enough and we strongly support that view. How can local authorities have premises in their areas where abuse or neglect could occur and not have a duty to conduct a safeguarding inquiry?
On prison governors being members of Safeguarding Adults Boards, my noble friend is exploring ways in which governors and prison staff can best participate in and learn about the board’s role and work. I look forward to the Minister’s response on how she thinks the Government’s amendments best facilitate this.
The remaining Clause 69 government amendments include a number of tidying-up measures which we support to reduce the burden on local authorities, such as clarifying local authority ordinary residence rules in relation to bail accommodation, explicitly exempting prisons and bail accommodation from local authority safeguarding adults reviews, and minor technical amendments to change the general language relating to the clause.
Under Clause 71 and Amendment 105Q from the noble Baroness, Lady Browning, we return again to the Secretary of State’s powers in relation to local authorities and NHS bodies. Both the noble Baroness and my noble friend Lord Touhig make a strong case for statutory guidance previously in place to continue to apply under the new legislation until the Secretary of State declares otherwise. The noble Lord and noble Baroness, as usual, speak strongly on autism and the Autism Act being embedded in the new legislation. However, there is a wider issue of ensuring that the Secretary of State retains ultimate responsibility, arguably more important than ever with the tendency of our current Secretary of State to hover above it all and act as if everybody else is responsible but him.
Amendment 105R of the noble Lord, Lord Low, to Clause 72 seeks to prevent a local authority from being able to delegate functions on its behalf under this part of the Bill. He is right to be cautious about how the local authority powers under this clause are used. I look forward to the Minister’s response to the amendment.
Finally, under government Amendment 105V in this group, I again raise an issue that I spoke of during last week’s safeguarding debate on the provider failure provisions under Clauses 47 to 49, designed to address responsibilities and actions in any future provider collapse, such as we saw most recently with Southern Cross residential care homes. The Lords Delegated Powers Committee expressed concern at the Bill’s failure to define what is meant by both “business failure” and “market failure”. Although I got an answer in passing in the following debate when the noble Earl the Minister responded to a question about provider failure from the noble and learned Lord, Lord Mackay, I would appreciate the Minister explaining today in more detail why the Government have chosen regulations to address these two issues, which are fundamental to the operation of the provider failure provisions of the Bill, rather than include the definitions in the Bill.
Baroness Northover
My Lords, I thank noble Lords for tabling the other amendments in this group on these very important issues. On the amendment in the name of the noble Lord, Lord Patel of Bradford, we agree that a person with care and support needs should be protected against abuse or neglect wherever they are. As I have already set out, prison governors and directors have in place procedures to follow in response to allegations of abuse or neglect. Governors and directors will provide assurance to the National Offender Management Service and Her Majesty’s Chief Inspector of Prisons, through their inspection regimes, that those procedures and their implementation provide similar protection to that available in the community. The Prisons and Probation Ombudsman will investigate individual complaints and incidents. I can assure the noble Lord, Lord Ramsbotham, that the Ministry of Justice and the NOMS have acknowledged that there is a need for improved directions to the Prison Service and probation trusts in this area. They will be working with officials from the Department of Health and stakeholders to develop instructions and guidance that will give clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. In addition, prison governors and other prison staff will be able to approach their local Safeguarding Adults Board for advice and assistance in improving their arrangements. The MoJ was, of course, fully consulted on the provisions relating to prisons in the Bill and will be working with the Department of Health and NOMS to develop detailed guidance so that people who are concerned about the safeguarding issue will know exactly how to raise it and get advice on how to approach it. The MoJ is fully involved in the development of all parts of this clause.
The noble Lord, Lord Ramsbotham, also raised the issue of a statutory obligation on the senior management of prisons to take responsibility for the care and support needs of prisoners. The governor or, in the case of contracted prisons, the director, has the primary duty of care for prisoners and is the appropriate first point for reporting concerns. There is an investigations procedure in place for cases in which prisoners suffer significant harm. Prisons are monitored by a range of inspectorates, including the CQC.
Lord Patel of Bradford
I just want to get this point on record and then perhaps we can come back to it. I understand that prisons have a whole range of safeguarding measures in place. When there is a real problem that a prison has not resolved, why can a local authority not have an inquiry for a person who is vulnerable and at risk? That is my first question. If somebody is in approved premises, such as a bail hostel, and living in the community like anybody else, and they have been abused or are neglected or at serious risk, why should a local authority not have an obligation to have a safeguarding inquiry? I just cannot fathom why such a person would be excluded.
Baroness Northover
The point is that if local authorities must also conduct inquiries in prisons and approved premises, we run the risk of duplicating inquiries. Prison governors and directors have the primary responsibility for preventing abuse or neglect of prisoners with care and support needs. Prison governors already have a duty to care for and safeguard prisoners. If we duplicate this responsibility, we run the risk that the lack of clarity will mean that safeguarding concerns fall between agencies. Noble Lords will be extremely familiar with how this has happened in the past in other sectors. Therefore, a decision has to be made as to where the expertise is and where the primary responsibility is. The decision made in discussions with the MoJ and NOMS is that the primary responsibility is with the prisons. We have to make sure that they carry forward that responsibility. Obviously, they will draw on advice in the way that I described, but we need to make sure that there is one body with ultimate responsibility.
We agree that prison staff should have access to local safeguarding expertise if, in their particular circumstances, it would be useful, so we agree that the second half of the subsection, from the second “officer” onwards, should be removed. However, because prisons have their own safeguarding procedures, we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other prison staff to become members of safeguarding boards rather than a statutory duty. That is the intention of the first part of subsection (7).
I now turn to Amendment 105Q, in the name of my noble friend Lady Browning and the noble Lord, Lord Touhig. It raises important issues about how future statutory guidance will be issued under the Bill and how it may interact with existing guidance. The noble Baroness, Lady Wheeler, also asked about this. We intend to develop a single, consolidated bank of guidance for local authorities covering all their care and support functions under this part of the Bill. We will replace all existing guidance that covers this territory to remove the potential for future misunderstanding. Current statutory guidance for local authorities is issued under Section 7 of the Local Authority Social Services Act 1970. Future guidance on adult care and support will be issued under Clause 71 of the Bill. The amendment also proposes to require a consistent application of the definition of an “NHS body”. We agree, of course, that definitions must be clear and consistent in guidance and regulations and we will keep this in mind in drafting regulations and guidance to ensure that key terminology and definitions are consistent. I can assure the noble Baroness, Lady Wheeler, that guidance remains in place until it is superseded by new guidance.
My noble friend Lady Browning and the noble Lord, Lord Touhig, referred to guidance for people with autism. As they said, unlike other statutory guidance related to care and support, this is issued under a specific requirement included in the Autism Act 2009. I can assure noble Lords that it is not our intention to repeal these provisions by this Bill. The duty to issue guidance on autism will continue. I hope noble Lords are reassured by that.
I now turn to Amendment 105R, to which the noble Lord, Lord Low, spoke. The Government believe it is right to allow local authorities the flexibility to delegate their care and support functions to third parties. However, when a local authority chooses to delegate any of its care and support functions, this must not be a way of relieving itself of its responsibilities for how those functions are carried out. This clause does not absolve the local authority of its legal obligations with respect to care and support functions. However, we believe it is necessary that, when a local authority arranges with a third party to carry out a public function, the local authority should have contractual recourse against that third party for breach of contract. Subsection (7)(a) ensures that this is the case. It is not a limitation of the local authority’s ultimate responsibility for the performance of its functions.
The noble Lord, Lord Low, asked to be reassured about the application of the Human Rights Act. I can assure him that the Human Rights Act applies to the discharge of public functions, so even when a local authority delegates its public function to a third party, that function must still be carried out in a way that complies with the Human Rights Act. Local authorities retain legal responsibility for anything done or not done by the third party when carrying out the function. It follows that any failure to carry out the function in a way that is compliant with the Human Rights Act will be considered a failure by the local authority. We do not think that this needs to be specified in law as it is covered. The function must be carried out in a way that is compliant with the Act. By specifically referencing the Human Rights Act in legislation there is a risk that this could imply that the Human Rights Act does not apply in relation to various other pieces of legislation where it is not specifically referenced. I hope that the noble Lord is reassured.
Lord Low of Dalston
Can I just make sure—does that mean that the third party to whom the care function may be delegated is also liable under such legislation as the Human Rights Act?
Baroness Northover
What I have written here is that when the local authority delegates a public function to a third party, the function must be carried out in a way that is consistent with the Human Rights Act. It appears—I will clarify for the noble Lord if it is not the case—that the local authority has to abide by the Human Rights Act, but clearly, if it delegates something to a third party, which does not adhere to it, the third party is not adhering to its obligations to the local authority. By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible. However, I will clarify that if I am wrong.
Lord Low of Dalston
I am very grateful for that further clarification. It is reassuring to hear that the third party is under an obligation to carry out its functions in a manner that is compliant with the Human Rights Act. However, it would offer further reassurance if we were told that there was a remedy against the third party to which the function was delegated as well as against the local authority. I appreciate what the noble Baroness has said about a remedy against the local authority. However, as appeared when we talked about the application of human rights legislation a week ago, for remedies to have a practical effect so far as third parties carrying out delegated responsibilities are concerned, it is desirable—this was the view of the Joint Committee—that there should be a remedy against the third party to which responsibilities were delegated as well as against the local authority. In this instance that is, if I may put it this way, little more than a backstop. The remedy bites much more effectively if it can be seen to bite on the third party, to whom the responsibilities are delegated, and not just on the local authority. I hope that that further clarification of my point will make it easier for the noble Baroness to come back to me when she has looked into the matter further.
Baroness Northover
I will certainly write to the noble Lord and spell it out. Given the local authority’s responsibility for complying with the Human Rights Act, it is very unlikely that it would form a contract with a third party without ensuring that it knows that it will need to carry out whatever responsibility has been passed to that third party in the light of the Human Rights Act, otherwise the local authority will end up in court. I will write to the noble Lord in detail to explain how this operates.
The noble Baroness, Lady Wheeler, asked why the Government have chosen regulations to address the issues relating to provider failures. There is no simple definition of business failure and—we have some very interesting handwriting here; it is worse than a doctor’s. My best bet is to write to the noble Baroness.
To return to summing up on this group of amendments, I hope that I have reassured noble Lords about their amendments in this group, that they will feel able to withdraw their amendments, and that I have persuaded noble Lords that the government amendments I have outlined here should be accepted.
“(6A) An SAB’s objective under section 42(2) does not include helping and protecting adults who are detained in prison or residing in approved premises; but an SAB may nonetheless provide advice or assistance to any person for the purpose of helping and protecting such adults in its area in cases of the kind described in section 41(1) (adults with needs for care and support who are at risk of abuse or neglect).”
“(6B) Section 43 (safeguarding adults reviews) does not apply to any case involving an adult in so far as the case relates to any period during which the adult was—
(a) detained in prison, or(b) residing in approved premises.”
“( ) “Bail in criminal proceedings” has the meaning given in section 1 of the Bail Act 1976.”
“( ) a person who is temporarily absent from other premises in which the person is required to reside as a condition of the grant of bail in criminal proceedings is to be treated as residing in the premises for the period of absence”
Lord Low of Dalston
“( ) A local authority must make contact with adults who have recently been certified sight-impaired or severely sight-impaired and who are ordinarily resident in its area.
( ) Regulations may specify the period after the issue of a Certificate of Vision Impairment within which a local authority must make contact with a sight-impaired or severely sight-impaired adult and the form of such contact.”
Lord Low of Dalston
My Lords, perhaps I will not speak quite as briefly as when I spoke to my earlier amendment to Clause 72, but still, I hope, briefly enough. This amendment concerns registers of sight-impaired and disabled adults. I declare my interest as a visually impaired person and vice-president of the RNIB.
Clause 70(1) places local authorities under a duty to establish and maintain registers of adults who are sight-impaired and severely sight-impaired—blind and partially sighted, to you and me—who are ordinarily resident in their area. Certificates of vision impairment are completed by consultant ophthalmologists and passed to local authority social services departments to decide whether to register somebody as blind or partially sighted. This is intended to provide someone with sight loss with a formal and reliable route to accessing social care services and to assist councils in planning such services. Guidance from the Department of Health and the Association of Directors of Adult Social Services states that it should take no more than 28 days from the health service issuing a certificate to the local authority completing registration. However, we know that this does not always happen, or at least not always promptly.
New registrations have declined sharply over the past 10 years. The number of blind and partially sighted people who receive some sort of community-based provision has declined by 36% over the six years from 2005-06 to 2011-12, with a particularly marked decline after 2009. This compares very unfavourably with the figure for all other adults with physical disabilities, for whom the figure is 23%. It has been suggested that the decline may be due to people not registering because they do not see the point or feel that it would be stigmatising. However, it is difficult to see why this should be. The benefits are just the same as they have always been, and the evidence is that the problems surrounding prompt registration are much more systemic than attitudinal.
The purpose of this amendment is to ensure that local authorities have a duty to make contact with adults shortly after they have been issued with a certificate of vision impairment to ensure a consistent approach to registering adults who have been newly certified as sight-impaired or severely sight-impaired. It builds on a suggestion by the Law Commission in its report of May 2011 on adult social care law. On page 189, the report states:
“The guidance for deafblind people suggests a more proactive role for local authorities in that they are not only required to keep a record but also ‘make contact’ with service users”.
It went on to suggest that the Government should consider extending the requirement to make contact, to other service-user groups. Given the evidence on declining registrations, this would seem to make sense for the visually impaired as well. Only intervention makes a critical difference. Prompt registration can be crucial for accessing services, and effective rehabilitation. Nearly two-thirds of blind and partially sighted people say that because of their sight loss, they need help to get out of the house. However, without mobility training, which makes the greatest difference soon after certification, blind and partially sighted people are at risk of isolation and becoming housebound. There is also growing evidence of the link between sight loss and falls. Local authorities should step in before blind and partially sighted adults’ care and support needs intensify. When people have to wait for someone from social services to get in touch, it can lead to loneliness and depression. At present, ADASS guidance suggests that first contact should ideally take place within 48 hours, and certainly within two weeks. As I have said, the assessment of need is meant to take place within 28 days.
When the registration process works well, people with registrable sight loss access the support they need within weeks. However, the RNIB’s Lost and Found report of 2009 revealed a variation in the percentage of people reporting that they received a visit from social services within six weeks of their appointment at the eye hospital—a variation that ranged from 88% in the best local authority, to only 14% in the worst. In more than one area, patients reported waiting at least seven to nine months for an assessment or a home visit. Dr Stan Lopez, the head of a sensory impairment team in London, said that blind and partially sighted people typically slip through the net at the first stage.
This amendment would help ensure that local authorities reached blind and partially sighted people early, before they become depressed and isolated, and there is deterioration in their well-being. Recently published RNIB research studied the process of certifying and registering people as sight impaired, to understand why registration numbers have been falling. What particularly stood out was the extent to which social services departments can make a difference to the well-being of individuals, simply by making prompt contact. By making contact early, the local authority can arrange low-level and less costly support than if it waits for the individual to reach crisis point following many months of struggling on their own.
The duty laid on local authorities by this amendment would be quite proportionate. The rate of certifications of visual impairment issued per 100,000 of the population in 2010-11 was 43.1. The 22,500 adults certified as sight-impaired or severely sight-impaired in 2010-11 would typically translate into a big metropolitan authority, such as Birmingham, making contact with 430 newly certified adults a year; an inner London borough, such as Westminster, contacting 50; and a largely rural county, such as Cumbria, making contact with 320. Clearly, not all these adults would end up receiving the same level of service or even requiring a needs assessment. When you consider that there are 300,000 adults registered blind or partially sighted in England, this duty is clearly proportionate. It would mean that the roughly 20,000 adults whose sight problems are serious enough for an ophthalmologist to certify them in any given year are contacted by their social services department, and at the very least offered registration, which leads to individual benefits and entitlements, but we hope also speedier access to services which will help support independent living.
When the certification and registration process works well, service users are able to access support quickly, and report that it changes their lives. Building on Clause 70(1), which requires local authorities to establish and maintain sight impairment registers, the amendment would help them fulfil that duty by inserting a new subsection which would require local authorities to keep up-to-date registers by making contact with newly certified individuals. In summary, the amendment would ensure newly certified sight-impaired and severely sight-impaired adults are at less risk of losing out and falling through the gaps between health and social care services. I beg to move.
Lord Hunt of Kings Heath
My Lords, that was a pretty persuasive case, to which I hope the noble Baroness will be sympathetic. The noble Lord made the particular point that early intervention will lead to better outcomes. That could be a message that relates to this Bill as a whole. The noble Baroness knows that we were not able to have our debate on services for deaf people last week because of the lateness of the hour. I wonder whether, between now and Report, she would be prepared to write to me about how she thinks this Bill might specifically relate to deaf people. Clearly, some of the issues the noble Lord has raised are apposite to deaf people in terms of early identification and assessment. I would not expect her to answer that point today, but it would be extremely helpful if she were able to write to me on it in advance of us coming back to the QSD in the early autumn.
Baroness Northover
My Lords, I thank the noble Lord, Lord Low, for his amendment. It raises some important issues. He emphasises that local authorities need to follow up those who have been newly certified as sight-impaired or severely sight-impaired in a timely manner where they have indicated that they wish to be registered or to have an assessment of their needs for care and support. Indeed, we have great sympathy with his concerns. We accept that people who have acquired a visual impairment should have an early opportunity to have access to information and advice so that they can adapt to their situation as quickly as possible and obtain any aids and support that will help them to manage their lives better.
As we have discussed, Clause 4 requires local authorities to make available universal information and advice on care and support, which will of course be relevant here. But people who lose their sight suddenly can also need more time to come to terms with their loss and engage with the support that might be available to them. If that is the case, it might be more appropriate to have a greater degree of flexibility around the timescales for when that support is offered or re-offered. Individuals differ in the way that they respond. We therefore believe that it would be better if the detail of this was covered in guidance, as it is for deaf-blind people, rather than in the Bill or in the regulations. In response to the noble Lord, Lord Hunt, there may well be a parallel here for deaf people, I am happy to write to him in answer to his questions.
Covering this in guidance would allow greater flexibility to update and adapt the arrangements. I can assure the noble Lord, Lord Low, that officials intend to work closely with the RNIB and other stakeholders to ensure that the guidance is as comprehensive as possible. He is absolutely right that the person needs to be at the heart of that guidance. In the light of what I have said to both noble Lords, I hope that the noble Lord, Lord Low, will be happy to withdraw his amendment.
Lord Low of Dalston
I am very grateful to the noble Baroness for her response, and also to the noble Lord, Lord Hunt of Kings Heath, for his support. On what the noble Baroness had to say, I am very glad to hear that the Government propose to work with RNIB on refreshing the guidance. That will be very welcome. On that basis, I shall certainly want to withdraw the amendment. However, I would like to make a couple of points. The noble Baroness drew a parallel between the guidance on visual impairment and that for deaf-blind people. The Law Commission was in favour of upgrading the guidance for deaf-blind people to regulation status. Perhaps when the Government look at that question in respect of deaf-blindness and vision impairment, they may like to revisit it and consider whether guidance or regulations are the best vehicle.
I agree about flexibility, but the fact that somebody may need longer to adapt to sight loss or may need help for longer simply argues, to me, that they need help longer, not that they do not need prompt intervention. Even if you are going to need longer, or take longer to adapt to sight loss, you probably still require prompt intervention and early contact from the local authority to determine as quickly as possible what your needs are to put in place as quickly as possible what is appropriate to be put in place quickly, and to put in place what is needed over a longer time period as and when required.
With those observations, I beg leave to withdraw the amendment.
Lord Warner
“End of life care
After consultation, the Secretary of State may make regulations providing for—(a) the right for an NHS patient to die at the place they regard as home or normal residence;(b) a terminally ill patient who, in the opinion of a registered practitioner, is likely to die within six months to be exempt from local authority charges for adult social care.”
Lord Warner
My Lords, I move Amendment 105P in the name of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Greengross. I shall also be moving Amendment 105PA, in the name of the noble Lord, Lord Patel, as he cannot be here today and he has asked me to speak on his behalf.
The proposed clause, and its amendment, on end-of-life care would enable the Secretary of State, after consultation, to make regulations doing three things. First, it would provide NHS patients with a right to choose to die at the place they regard as home or normal residence; secondly, it would make exempt from adult social care charges a terminally ill patient with six months or less to live; and, thirdly, it would require local authorities to consider the needs of such persons for care and support as urgent. I postponed a Question for Short Debate, which could have been scheduled for tomorrow, so I hope that this magnanimous gesture will get me favourable treatment from the Minister.
Around 500,000 people die each year in England, about two-thirds of them over the age of 75. A century ago, most of us would have died in our own homes; today, most of us die in hospital. In his farewell report as national clinical director for cancer and end-of-life care, Professor Sir Mike Richards, now chief hospital inspector, reported that by April 2012, 42.4% of people were dying at home or in a care home. This is an improvement from 38% four years previously. On present trends, this means that it will be at least the end of the decade before half the deaths occur in a place of usual residence.
The improvement in the national figures conceals considerable regional variation. If you live in the south-west, with 48% of deaths occurring in a place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. There is even wider variation between local authority areas. The great majority of us want to die at home or in the place where we normally live, rather than in the impersonal environment of a hospital ward. Perversely, we end up not only dying in the place where we least want to be but dying in the most expensive place. Marie Curie research has shown that a week of palliative care in the community costs about £1,000, whereas a week of hospital, in-patient, specialist palliative care costs virtually £3,000. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Macmillan Cancer Support polling has shown that eight out of 10 health and social care professionals agreed that community-based, end-of-life care would save money. On top of that, an unusual position is that nine out of 10 MPs believe that their constituents should be able to die in the place of their choice. This produces remarkable cross-party consensus among MPs on this particular issue.
I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible with their friends and family around them. That is more likely to be achieved if people have a statutory right to choose to die at home or in their place of normal residence. This would mean fewer people dying at hospital, thereby saving public money. That is likely to provide more than enough resources for terminally ill patients within six months of death to be exempt from local authority social care charges. Making local authorities give assessment priority to such patients is likely to have minimal extra costs and is much more a matter of humane and good professional practice.
I have no time to recite all the other arguments in favour of this approach in this amendment, as set out by Macmillan, Marie Curie and Help the Hospices, in the excellent briefing that they sent to Members of this House. None of this briefing or the amendment requires the Government to take action immediately. They can complete their pilots, do their own cost-benefit analysis and consult widely before bringing forward regulations. The amendment would put down a clear marker that Parliament wants government to move in the direction that most people want—towards the right to choose to die at home or their place of normal residence rather than in a hospital ward. I beg to move.
Amendment 105PA (to Amendment 105P)
Lord Warner
“Where an adult is terminally ill, a local authority must consider their needs for care and support as urgent.”
Lord Warner
I move this formally, on behalf of the noble Lord, Lord Patel, as I have already spoken to it.
Baroness Jolly
I support the two amendments in the names of the noble Lords, Lord Warner and Lord Patel, and the noble Baroness, Lady Greengross. The House is probably getting quite tired of hearing about the Joint Scrutiny Committee, but this is another area where we completely agreed, and our unanimous report recommended pretty much the contents of these amendments to the Government. Sadly, the Government indicated their willingness to fund end-of-life care, but have not put the amendments in the Bill. So it was a sort of “but not now and not yet” response. The response that came back from the Government to the report was:
“We note the Joint Committee’s endorsement of our position that free social care at end of life has ‘merit’ and note that they strongly endorse the case for its introduction at the earliest opportunity”.
That is the Government responding to the report, but nothing is reflected in the Bill before us.
Both the present system and the new system that we are debating for access to care are really longwinded, and a lot of people in this position, at end of life, do not need a longwinded system of access. The DS 1500 certificate, which indicates that you have a terminal illness, can take weeks to complete. We all know that NHS care is easier to access. However, it does not link up with social care in most cases. A terminally ill patient can get NHS care but it is really difficult to get social care. Bring on integration, really. This is not fair for somebody who needs and wants a dignified death—wherever it should be. As the noble Lord, Lord Warner, has said, most people want to die at home. Often, the inability to cope at home without any support and social care drives people to hospital. Therefore, they find themselves ending up in expensive hospital care in a setting that is just not their choice. The noble Lord, Lord Warner, has quoted some figures so I will quote a few more that support his case. The Nuffield Trust has researched this and a 10% reduction of hospital admissions for people at the end of life could result in savings of £52 million. According to Marie Curie figures, this would easily cover the costs of free care at home for all the people who would die within a year—with some to spare. This also leads into the debate of the noble Lord, Lord Warner, about moving funding from health to care. We are talking about £52 million that would be spent by people dying in hospital. We would save that £52 million if we were able to keep them where they wanted to be. The £32 million assessment by Marie Curie is more than easily covered.
We all die. Most of us will have care needs. Most of us would want to die at home. Funding adult social care at the end of life would go an awful long way to achieve this. I am therefore more than happy to support these two amendments.
Baroness Masham of Ilton
My Lords, I, too, support these amendments. People in the community definitely need better facilities. There is no doubt that people should have choice. My husband would have liked to have died at home. Sadly, that option was not available because he needed an antibiotic in a drip. He died in an A&E department. I therefore greatly support these amendments.
Baroness Wall of New Barnet
My Lords, I, too, wish to support the amendment presented by the noble Lord, Lord Warner. I want to focus particularly on the first part of the amendment and I support completely the sentiments within that. One of the points made by the noble Baroness, Lady Jolly, was very important. It is important to try not to have the elderly patients in the hospital so that their right to die wherever they want to be is where they are before they have to come in. The context here is not just the money. The noble Lord, Lord Warner, is absolutely right to point out that it is hugely expensive. I think that it is more than £3,000 if an elderly person is in hospital and dies in hospital. It is very much evidenced by the fact that they very often feel quite degraded by the lack of privacy when they die in hospital. By definition, it is not the same as being at home or, even, I would suggest a hospice, where people have very good experiences. The evidence provided by the noble Baroness, Lady Jolly, and the noble Lord, Lord Warner, is absolutely crucial.
I can tell the Committee from first-hand experience that people also say this to us. I declare an interest in Barnet and Chase Farm Hospitals. If I or anyone else in the hospital goes around the wards, the patients tell us that they would love not to be there to die. Certainly, the nursing staff would love them to be in a better, more dignified place to die. It is a hugely important part of any of the social care we are looking at.
Baroness Pitkeathley
My Lords, I, too, wish to speak in support of the amendments and to endorse what the noble Baroness, Lady Jolly, said about the recommendations of the Joint Committee. I want to use the opportunity also to consider the needs of family carers as well as those of the person who is dying. I want to emphasise that it is very important that carers are informed about the likely stages at the end of life and that they, too, are able to prepare for the death of a loved one. This includes ensuring that families are well informed when making decisions about where their loved one dies. It has been said by all noble Lords that most people wish to die at home. However, this can put extra pressure on carers, which should be discussed with them by health professionals. These health and care professionals may need further training to ensure that they are identifying and considering the needs of carers at the end of life.
More than 300 carers who have experienced the death of the person they cared for shared their experience as part of this year’s report for Carers Week, which is called Prepare to Care?. Nearly half said that they had not had time to plan about the death. One third of carers stated that they had not given this enough thought and wished that they had planned it better. As one carer said:
“Although you can be aware end of life is coming you have to balance this out with keeping up hope and being positive for the person you care for. Also you just don’t have the time to think ahead. With hindsight I can see that the signs that end of life for the people I was caring for was approaching, but as a carer in that situation at the time I could not see them. I wish the GP had spent some time with me to discuss these things”.
We must bear the carers in mind.
If I may, I would like to say a word about the aftermath for carers of the death of a loved one. Carers often become isolated as result of caring and find it very difficult to maintain social networks and hobbies. When caring comes to an end, so do the carer’s services. The carer is left without any social or emotional support. I never forget the carer who said to me, “I am expected to go from the graveside to the job centre”. Sometimes we expect that of carers. If we could support carers more, I think that more of them would be willing to be part of the team providing end-of-life care and thus gain the advantages which have been so clearly set out by noble Lords.
Lord Skelmersdale
My Lords, I failed to speak at Second Reading and I have failed to speak throughout the Committee stage. However, I believe that this amendment is very important, especially, as the noble Baroness, Lady Pitkeathley, said, the introductory subsection thereof. I emphasise that this is not a Second Reading speech. However, if I had spoken at Second Reading, I would have reminded my noble friend Lord Howe on the Front Bench of my long standing view that it will never really work until we have a combined health and social care budget. If we did have it, most of the amendment would be unnecessary.
Baroness Emerton
My Lords, I support the amendment proposed by the noble Lord, Lord Warner, and agree with what all the other speakers have said. I remind noble Lords that when care pathways were introduced by the previous Government end-of-life care was not a pathway. The noble Lord, Lord Darzi, listened to a group of hospice workers. They said that they very rarely saw a death in a surgical ward and that they believed that we should look at a care pathway for end of life. What has been said today indicates that we need to concentrate on bringing together health and social care, bringing together social workers and health staff and, above all, seeking the choice of patients. As has already been said, most patients wish to live in their own surroundings and the end-of-life care pathway would take care of not only the person whose life is ending but also the relatives and family around them. I suggest that we think about how we progress the care pathway for end of life.
Baroness Wheeler
My Lords, we on these Benches are grateful to my noble friend Lord Warner and the noble Lord, Lord Patel, for bringing forward these amendments which ensure that end-of-life care is discussed in the context of the Bill. The Government have confirmed to the Joint Committee that primary legislation is not required for the introduction of the proposed new palliative care funding system or free end-of-life care once the Bill is passed. It is right to seek up to date information on the progress of the end-of-life care pilots and the proposed timescale for the publication of the regulations and consultation, if the April 2015 deadline for any new systems is to be met.
The amendment of the noble Lord, Lord Patel, endorses the Joint Committee recommendation that assessment of the need for the care and support of an adult who is terminally ill should be treated as urgent by the local authority. We fully support that. As Marie Curie Cancer support says, people get stuck in hospital at the end of life because the system cannot move quickly enough to get a care package for alternative care in place. It is established good practice in some authorities to fast track assessment of people not covered by NHS continuing care. It is a very fundamental requirement for people who are terminally ill and should be a duty reinforced in the Bill.
There is also a strong argument for joining up access to social care and support with the DS1500 system for quick accessing of welfare benefits such as DLA, although it is recognised that some of the degenerative diseases such as motor neurone disease may not be easily dealt with in this way. Will the Minister advise the House of the Government’s view on this, and what work is being undertaken to ensure that benefits and the care and support system work in a more integrated way for terminally ill patients? It is now six years on from the introduction of the 2008 End of Life Care Strategy to help people have the end-of-life care and support they need, in the words of the Nuffield Trust,
“beyond the gates of the acute hospital setting”.
The strategy has made a vital contribution to increasing the profile within the NHS and social care of end-of-life care through such excellent programmes as the NHS End of Life Care, the Marie Curie Delivering Choice Programme and the 2009 Dying Matters campaign to tackle the taboo on discussing death and dying. However, as my noble friend has shown, progress on providing real choice for people to die in the place they want to, whether that is in their home, at a hospice, nursing home or in hospital, if that is where they can receive the best palliative and nursing care appropriate for their condition or personal circumstances, has been frustrating and disappointing.
The current main focus of palliative and end-of-life care is still on cancer patients and hospices, but even then, Macmillan Cancer Support research shows that 91% of cancer patients in England who die in hospital wanted to die elsewhere, with 65% wanting to die in their own homes. Only 29% of people with cancer are able to be at home when they die. The amendment of my noble friend Lord Warner seeks to specify in the Bill that regulations may include the right for an NHS patient to die in the place they regard as home or their normal residence. As he readily acknowledges, this can be achieved only if end-of-life care is integrated across the NHS, local councils and hospices, and if it is properly funded. His case for an integrated service for free end-of-life care for terminally ill people who are likely to die within six months is a convincing one.
Macmillan’s research among health and social care professionals shows that 97% identify the lack of financial integration between the services as a key barrier to people receiving the care they need at the end of life. As the noble Baroness, Lady Jolly, reminded us, the Nuffield’s and other research projects point strongly to the cost-effectiveness and potential savings that could be achieved with greater access to social care and reduced hospital admissions at the end of life. The Nuffield research also found that the use of social care currently varies between local authorities and health conditions—for example, people with dementia, falls and stroke use considerably more social care in community settings than those with cancer, probably because that is where they are already being cared for before terminal illness has been diagnosed. Individuals with the highest social care costs tend to have lower average hospital costs.
We fully recognise how crucial the seven adult palliative care funding pilots are to mapping and understanding current patterns and resource use across health and social care at end of life, and to collecting the vital data from which the costs of an integrated end-of-life care system can be properly assessed. These data span across care provided by the NHS, voluntary and private sector in both acute and community settings. The final data analysis report for the adult pilots and the consortium pilot for children’s palliative care services is due in June 2014, and the Government are committed to introduce a new per patient funding system for palliative care by April 2015. Can the Minister update the House on the progress being made under the pilots, the emerging key themes and whether the timescale has been impacted by the recent transfer of responsibility to NHS England? I understand that there is a problem with progress and that the pilots have only recently been provided with guidance on social care data collection—for example, as regards where data are underdeveloped and will probably take longest to collect. Is the Minister confident that the timescale for pilot reports, evaluation, policy decision and consultation can be met in time for implementation and that the Government will make a decision on free end-of-life care by the end of this Parliament?
Finally, two further issues need to be added to the debate. First, my noble friend Lady Pitkeathley reminded us of the recent Carers UK Carers Week survey which shows that much more support is needed for carers to help them plan for the end-of-life care of the person for whom they are caring. Many do not know how to plan for the death of a loved one and how to look ahead to life when caring ends in terms of returning to or taking up work, making social contacts and managing financially. My noble friend was right to underline how crucial it is to get this support right.
Secondly, it is as well to remember the findings of last month’s report from Public Health England and Marie Curie Cancer Care on palliative and end-of-life care for black, Asian and minority groups in the UK. It is a timely reminder that, with black, Asian and BME groups aged 65 and over set to treble in the next 25 years, there is urgent need to address the reasons for their low levels of use of palliative and end-of-life care services. The report identifies major problems, including lack of knowledge about services, misunderstandings, mistrust and lack of cultural sensitivity on the part of service providers. How are the Government addressing this issue and including it in their work to assess future service needs and funding? Are the pilots collecting data on these vital issues?
Earl Howe
My Lords, I thank the noble Lord, Lord Warner, for tabling these amendments which bring us to an important and sensitive set of issues. The Government have great sympathy with these concerns and I hope that I can reassure the Committee on them.
Amendment 105P would give the Secretary of State a power to introduce regulations for two specific but related issues—a right for NHS patients to die in the place that they regard as their home and an exemption from local authority charges for care and support for adults who are in the final six months of their lives. The Department of Health’s End of Life Care Strategy provides a blueprint for improving quality and choice in palliative and end-of-life care, and NHS England, which is now responsible for end-of-life care, is pressing on with its implementation, including aspects relating to the pathway to which the noble Baroness, Lady Emerton, referred.
We made a commitment in Liberating the NHS: Greater Choice and Control to move towards a national choice offer to support people’s preferences about how to have a good death. This is not an easy task and it cannot be done overnight. For example, commissioners need to be sure that the right services are available in the community to support people to be looked after at home. A lot of work is needed to make choice in end-of-life care a reality. We shall take all the evidence into account and review progress this year to see how close we are to being able to introduce a national offer on the choice to die at home. The noble Lord, Lord Warner, rightly pointed out that there are variations across the country as regards people’s ability to die in the place of their usual residence. I take that point completely. However, if we are to solve that disparity, it is important that we do not act prematurely. If an area is not ready to roll out a better system for palliative and end-of-life care, it will serve no one’s purposes, so we must take the necessary time to do this.
On the issue of palliative care funding, as the noble Lord is aware, in the Care and Support White Paper, published in July 2012, we stated:
“We think there is much merit in providing free health and social care in a fully integrated service at the end of life”.
This followed the report of the independent Palliative Care Funding Review in July 2011, after which the Government set up seven adult and one children’s palliative care funding pilots. The pilots are running for two years, with the aim of having a new funding system in place by 2015, a year sooner than the review proposed. From April 2013, we gave responsibility for this work to NHS England. We need to analyse the evidence from the pilots thoroughly before the details of the new funding system are finalised. Any changes to social care palliative care funding could be made by secondary legislation under Clause 14(1) in due course and will not require an amendment to the Bill.
My noble friend Lady Jolly referred to the cost savings in hospital admissions at the end of life and suggested that this might cover the cost of nursing care at home. This is a point made cogently by Marie Curie. The issue we need to bear in mind here is the readiness of the service to cope with sudden changes in services that an amendment would entail, so we still think that it is better to gather the evidence, as the pilots are now doing, and allow services to be properly planned for.
I turn to Amendment 105PA. The Bill allows local authorities to treat a person’s care and support needs as urgent, as set out in Clause 19(3). We believe that in end-of-life cases a person’s needs would be highly likely to be considered “urgent” and therefore should be fast-tracked so that needs are met as quickly as possible. We do not believe that the Bill should set out a list of urgent situations where a local authority can meet an adult’s needs without having yet carried out a needs or financial assessment, or made an eligibility determination. The problem is, as we have debated on many occasions in the past, that such a list could never be exhaustive and might suggest that only certain situations could be treated as urgent. Local authorities must have the flexibility to determine themselves which situations they consider to be urgent, depending on the facts of each individual case. The wording of Clause 19(3),
“which appear to it to be urgent”,
enables this. However, I can say that we intend to refer to end-of-life cases specifically in statutory guidance.
I can readily identify with the questions asked by the noble Baroness, Lady Pitkeathley, about carers and the need to support them after the death of the person they have been caring for and to make sure that they are informed about the stages at the end of life, the additional pressures that may be placed on them and the need to plan. The duty on a local authority to provide information and advice in Clause 4 very definitely includes information and advice relating to support for carers, including in these circumstances.
The noble Baroness, Lady Wheeler, asked about end-of-life care for BME groups in particular and the need to address the low use of palliative care services among those groups. She asked how we are addressing that. I shall write to the noble Baroness on that point, as I do not have information in front of me on whether the pilots are collecting those data specifically. However, I agree that it is a material issue. The noble Baroness also asked whether the palliative care funding pilots had been impacted by the transition to the new NHS system and whether we would meet the timescales. I can reassure her that the work of the pilots is on track.
I hope I have demonstrated that the Government are committed to offering patients the support to facilitate their dying at a place that they regard as their home, when the system is able to meet this commitment and where this is the person’s wish. I hope that the noble Lord, Lord Warner, will be sufficiently encouraged to withdraw his amendment.
Lord Warner
I am grateful to all noble Lords, across the Benches, who spoke in support of this amendment. I will, of course, consider carefully the noble Earl’s points in his constructive response. I will discuss them with my co-signatories and the voluntary sector. However, I want the noble Earl also to ponder something. The idea of giving people a right to die where they choose is one of the major social right breakthroughs. It is on a par with some of the other things that Parliament has spoken on and passed legislation about. In my view, it is more than about waiting for the bureaucracies to give their blessing that there is a state of readiness for this change to take place. This is an issue where the political parties and Parliament should show their willingness to press on as a top priority. I will certainly consider what the noble Earl has said, but I hope he will consider what I have said. We did not have everything ready when Parliament decided to ban smoking in public places and the workplace. It thought it was the right thing to do and it did it. This issue of people’s right to choose where to die is in the category where Parliament should say, “It is the right thing to do and we are going to get Governments to do it”.
I may be wrong. The Government may bring forward these changes in good order. But I take a different view from the noble Earl about the issue of local variation. They need to put a marker in legislation to make jolly sure that those parts of the country actually deliver the goods on a similar timescale to everybody else. I do not think that we could rely on strong messages from NHS England necessarily to deliver that. In the meantime, I will consider carefully and I beg leave to withdraw my amendment.
Lord Warner
“Employment practices
(1) Where the Secretary of State has evidence that employment and payment practices used by service providers of adult social care are not consistent with the well being requirements in section 1, he may, after consultation, direct the cessation of such practices by making regulations.
(2) Such regulations may provide for financial penalties in respect of continued use of prohibited practices.”
Lord Warner
My Lords I will not detain the House long on this amendment. It gives the Secretary of State a regulation-making power to ban employment practices in the care sector that are inconsistent with the well-being principle in the Bill and to impose financial penalties for continued use of prohibited practices.
We all know about the practice that has grown up in recent times of 15-minute home visits to frail and vulnerable people, where the care-giver is not paid for travel time and is pressurised to fit more visits into a day than is reasonable. Practices of this kind are an affront to the care sector and it is a disgrace that any public agency should have been willing to collude in it, whatever the financial pressures. It is bad for the recipient, bad for the care-giver and bad for the reputation of all the agencies involved. It is, however, the kind of practice that can creep into low-wage sectors where a workforce is vulnerable to poor employment practices. It is what I call the “Morecambe Bay cockle-pickers syndrome”.
The front page of the Guardian today has an example from another sector, with its story of Sports Direct’s zero-hours employment contracts for part-time workers. These contracts, which appear to go to 90% of the company’s 23,000 employees, mean staff do not know how many hours they will work from one week to the next, giving them no guarantee of regular work, as well as no sick pay or paid holiday. I would not want to take a bet that somewhere in the care sector there is not an equivalent to Sports Direct.
The care sector is inevitably likely to continue to have relatively low-paid jobs and be vulnerable to entry by unscrupulous employers. Those giving care need to be more fairly paid and better trained, and to become a more reliable workforce that is able to spend enough time with those needing care, without cutting corners in the care they give. Experience so far suggests that we cannot always rely on commissioners of care to do the right thing. They need a bit of buttressing.
My amendment gives a power to the Secretary of State to intervene when there is evidence to suggest that intervention is necessary, and provides the back-up of financial penalties should a bad employer prove obdurate. The presence of the new clause would also be a deterrent to bad behaviour. If we are serious about safeguarding the vulnerable, we need a provision of this kind in the Bill’s armoury. I beg to move.
Lord Hunt of Kings Heath
My Lords, very briefly, I support my noble friend. In a sense, we have already had two debates on the employment practices of providers that are contracted by the local authority. The first was on Clause 5, regarding the local authority’s market-making role. We have also discussed under Clause 80 whether the Government, through regulations, will ensure that the CQC’s oversight of local authorities’ commissioning will be treated as a major priority.
The challenge for us on Report will be to deal with this issue by bringing it all together. There is no doubt that there is real concern about the employment practices of a number of companies that work in the adult social care sector and the lack of monitoring by local authorities in their commissioning. One way or another, the Bill will be very much enhanced if we can get to grips with this problem of poor employment practice. I have no doubt whatever that the general use of zero-hours contracts and the fact that those workers who are often low-paid have to pay the cost of travel themselves and are not paid for the time they take to travel from client to client leads inevitably to an impact on the quality of care, however worthy those people are. We will have a great opportunity on Report to do something about it and we will do so.
Earl Howe
My Lords, these are indeed serious issues and I am grateful to the noble Lord, Lord Warner, for raising them. Those who work directly providing care and support play a vital role in helping and supporting vulnerable people. Organisations that provide care must do all that they can to make sure that their workforce provides compassionate care and that people are treated with dignity, consistent with well-being principles.
Although the majority of care and support provided is good, I am aware that in some cases the practice of both providers and commissioners of care risks a negative impact on the well-being of those cared for. For example, the recent report of the Low Pay Commission has warned of lack of compliance with the national minimum wage, such as by not paying for travelling time between appointments. I am also aware that some local authorities’ contracts with care providers may lead to inappropriate practices, such as very short visits.
I agree entirely with the noble Lord’s intent to see a move away from such practices, which can undermine well-being, independence and dignity, as well as disempower those responsible for providing care and support. The question is how to do that. I believe that addressing these issues requires a broad range of approaches, some of which are already included in the Bill, but I am doubtful that further legislation is appropriate.
The terms and conditions of care and support workers, including pay, are set by employers within the existing requirements of employment legislation, with the same enforcement through HM Revenue and Customs, penalties and sanctions as in other sectors. All providers must, of course, pay at least the national minimum wage. This is law, and failure to meet the requirement is never acceptable. However, the law need not be repeated in the Bill or, indeed, in separate regulations that effectively duplicate those that we already have.
Where care and support is funded by the state, it is allocated through local authorities, which must ensure that the providers they commission from offer good value for money and a high-quality service. Clause 5 establishes a new duty on local authorities to promote a sustainable, diverse and high-quality market for care and support in their area, and is clear that an authority’s own commissioning practices must be in line with this duty. The Department of Health is working with the Association of Directors of Adult Social Services, the Think Local, Act Personal partnership and local authorities to embed this duty and improve commissioning generally.
We are providing firm leadership in this area. The Minister of State for Care Services, my colleague Norman Lamb, recently announced a home care challenge, whereby we will work with the sector to generate new ideas around improving quality in home care services and local authority commissioning. The department is also offering support to local authorities to develop their market-shaping capacity, and encourage high-quality provision and an understanding of market capacity and capabilities.
I am sure that the noble Lord, Lord Warner, will appreciate, without my needing to say this, that wages and associated employment practices are not the only determinant of service quality and a range of factors affect care workers having the right attitude, values and skills. The Department of Health is working on a number of initiatives with partners to develop a code of conduct and a recommended minimum training standard. Further work includes supporting workforce training through a workforce development fund and working with Skills for Care and the National Skills Academy for Social Care to improve the capability and skills of care workers. For the first time, this will now include support and training for personal assistants as well as people working for more formal providers. The department is also working with Skills for Care to develop a sector compact to promote culture change and skills development in the sector.
More broadly, through registration and monitoring, the Care Quality Commission enforces standards in this sector. The CQC requires that employers ensure that staff are well managed and have the opportunity to develop and improve their skills. Once services are registered, the CQC continues to monitor and inspect them against essential standards.
Lord Hunt of Kings Heath
I have never really been able to tempt the noble Earl to comment on the priority to be given by the CQC to the role of the providers and the responsibilities of local authorities in commissioning services. Can I tempt him to say more? Clause 80 clearly states:
“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social services provided or commissioned by the authorities”.
Would the Government be willing to say to the CQC, “We will prescribe regulations that make it clear that this will indeed be a priority”? I have long felt that the way to deal with this is through the CQC’s own monitoring of how local authorities commission those services. It would be a way through if the Government were prepared to say that. The more I listen to our debates, the more I begin to think that this ought to be, of all the things that the CQC does, its number one priority.
Lord Warner
Supplementary to that, my simple view of the world is that if the situation is so bad, the CQC ought to be able to deregister someone who persistently engages in these kinds of employment practices. Do the Government share that view?
Earl Howe
My Lords, I am the first to agree that these are very important issues. I cannot do justice to explaining where we are with them at the moment and I ask both noble Lords for their indulgence. I will write to both of them and provide more information on this subject.
I was referring to the role of the CQC, which has the power to act in response to any concerns and to take enforcement action where services are failing people. Failure to comply with the requirements is an offence and, under the Health and Social Care Act 2008, CQC has a wide range of enforcement powers that it can use if the provider is not compliant. These range from issuing a warning notice and fines through to cancelling a provider’s registration. The new Chief Inspector of Adult Social Care will be in post from October and will provide additional focus on quality issues in care and support.
I repeat my reassurance to the noble Lord, Lord Warner, that the Government fully agree with the intention behind the amendment—that employment standards and workforce issues are fundamental to quality care—but I hope I have demonstrated that there is a wide range of activity bearing down on poor practice and that the variety of existing law and other non-statutory approaches mean that further legislation is not required. I hope the noble Lord will feel reassured enough to withdraw the amendment on that basis.
Lord Warner
I am grateful to the noble Earl for his reassurances. However, like my noble friend Lord Hunt, I am still uneasy about the extent to which there is, if I may put it this way, a clunking fist that could be used to stop such practices in their tracks, possibly by the regulator.
It would be helpful if before Report we could meet, perhaps with David Behan or someone from the CQC, to satisfy ourselves that, possibly by using guidance and advice from the department to the CQC, enough priority will be given to this issue and systems will be put in place to take action swiftly when concerns are raised. However, in light of the possibility of further discussions, I beg leave to withdraw the amendment.
Baroness Deech
“Unpaid carers and co-dependants: financial rights and obligations
(1) The Secretary of State must arrange for a review of the legal and financial rights and obligations of—
(a) unpaid carers and those they care for, and (b) co-dependant family members who share a house,and who in the case of paragraphs (a) and (b) are adults within the prohibited degrees of marriage and who have lived together in the same household for a period of at least five years.(2) The review referred to in subsection (1) shall be for the purpose of considering the creation of a legal status that is non discriminatory and the review shall include rights and obligations arising on the death of one of the adults included in subsection (1)(a) and (b).
(3) The Secretary of State shall report to Parliament on the outcome of the review and the arrangements made by the Secretary of State must provide for the review to begin as soon as practicable and include a full public consultation.”
Baroness Deech
My Lords, I return once again to the treatment, during life and at death, of elderly siblings or close family members who have lived together for years but whose position vis-à-vis each other and the state is fragile. Noble Lords may recall that I addressed this issue twice during the passage of the Marriage (Same Sex Couples) Act and that I have spoken about it on several occasions in debates. You wait for years for the right Bill to turn up and then two come along together.
In 2004, the House agreed to an amendment that would have extended civil partnerships to family members in view of the financial disadvantage they suffer under inheritance tax, but not only inheritance tax. Civil partnership structures may have been overkill, yet the Government acknowledged the importance of the issue even though the amendment was overturned in the other place. Still nothing has been done. I have tried to persuade the House more than once to take heed of the unfair way in which carers and siblings are treated in our law—indeed, they perceive themselves as being treated unfairly—compared with those in a sexual relationship.
In the course of the Civil Partnership Bill 2004, some Members of this House said that it was not the Bill through which to right an injustice. During the passage of the Marriage (Same Sex Couples) Bill the same argument was made. However, where there is a wrong we should hasten to take the opportunity to remedy it without resorting to technical or process arguments.
The unfairness has increased. Every adult in this country can now marry or enter a civil partnership, for whatever reason, with concomitant legal advantages. Only family members cannot benefit. Today I received a letter from two such people. They live together in their family home—one is divorced, the other never married—and when the surviving parent died six years ago they paid a great deal of inheritance tax. They feel that the current law treats them unfairly and fear that the son, who will inherit from both of them, will again have to pay a vast amount of tax. They say there is nothing they can do about this. Cohabiting couples can choose to marry and thus benefit; and same-sex couples can marry or enter a civil partnership. However, because they are blood relations there is nothing that they can do.
Baroness Hooper
My Lords, I need only add very little to the case proposed by the noble Baroness. In the interests of fairness and equality in relationships, whatever the relationship, this is worthy of consideration. I emphasise that the noble Baroness has talked about a review. There are of course a lot of practical details which could affect this situation which would have to be worked out, but the important thing is that this type of relationship should have the same sort of consideration as has been given to others.
Baroness Barker
My Lords, I return to this subject yet again, having discussed it every time it has come before your Lordships’ House. I take a very different view of this proposal not because I wish in any way to denigrate people who care, but because a fundamental flaw and a serious danger lurk within it. Let us remember that it originally came from organisations such as the Christian Institute, as part of its continuing campaign against civil partnerships and same-sex marriage. It is not a proposal which emanated from the carers’ movement. I have spent 15 years in this House discussing various pieces of legislation which apply to carers. This did not arise. This has never arisen from the carers. It is very much part of a different campaign.
The proposal equates two fundamentally different sorts of relationship: those entered into freely and voluntarily as adults, and consanguine, family relationships. Those two types of relationship have always been treated differently in law, for very good reason. You cannot choose your family, you are born into it. You have relationships with people in that family which are wholly different, and your obligations to those people are wholly different, from those in the families which you create. That is why you do it. Also, you cannot leave a family into which you are born in the same way that you can divorce a partner to whom you are married.
That is important because behind this lie two key questions. First, if there are several siblings, how do you choose which two people enter into the relationship and benefit? Secondly and more importantly—the question which the noble Baroness, Lady Deech, has not answered although the noble Baroness, Lady Howarth, and I have put it every time this issue has arisen—how do you stop weaker members of the family being put under duress and compelled to protect the family property by stronger ones? Within that lies the potential for gross and horrible abuse.
I understand that the noble Baroness, Lady Deech, has weakened her proposal this time by asking for no more than a review. If there is a review and report which does not address that issue, it will have done the citizens of this country a disservice. I hope that at that stage, if not now, we can put an end to this campaign.
Carers already have recognition in ways that matter. We have carer’s allowance. We have attendance allowance. We have all sorts of things which recognise the particular status of carers without tying them into relationships around property which are very difficult to disentangle. If this is a way of dealing with the inequities of inheritance tax, so be it, but it is one containing dangers which should be appreciated before we go ahead with it.
Baroness Northover
My Lords, I thank the noble Baroness, Lady Deech, for tabling this amendment. This would place a duty on the Secretary of State to arrange a review of legal and financial rights and obligations of adult carers, adults they care for and codependent adult family members who share a house, with a view to considering the establishment of a specific legal status for such people that would include rights and obligations arising at death of one of the adults concerned.
The noble Baroness, Lady Deech, and my noble friend Lady Hooper emphasised the human side of this challenge, and of course one sympathises with the cases that they mention. Noble Lords will remember that we had an extensive debate recently on these issues both for the Marriage (Same Sex Couples) Bill, and in 2004 for the Civil Partnership Bill, as my noble friend Lady Barker has set out. In the recent debate, the noble Baroness, Lady Deech, sought to include carers and cohabitees in the proposed review of civil partnerships. We had some debate then about the Government’s support for carers. The point was also made that this was in essence a tax point.
I note that during the debate we recently had, the noble Baroness, Lady Deech, said that, having studied the Care Bill, she had not seen in it a hook on which to hang such a review. We believe that interpretation was correct. Such a review would be enormously complex and range much further than the provision of care and support.
As the noble Baroness, Lady Hollis, stated in Committee on the Marriage (Same Sex Couples) Bill, inheritance advantages on death would need to be balanced by responsibilities and financial dependencies during lifetime. There would need to be a fundamental root and branch review of social security and pensions policy and the provision of means-tested benefits, as well as a review of rights and obligations on death. Such questions about legal rights and responsibilities, arising from specific family relationships and friendships, are not related to the subject matter of the Care Bill. Nor do they fall within the responsibilities of the Secretary of State for Health. Indeed, Carers UK has said that forming some kind of formal legal relationship between a carer and the person they care for is not the right way to solve the challenges that carers currently face, a point that my noble friend Lady Barker has emphasised.
Parents, children and siblings already have a legally recognised relationship to each other that affords certain rights—for example, in the laws of intestacy. The Government, of course, value the contribution of carers in supporting family members and friends, recognising that they may often be caring for many years. That is why the Care Bill provides for significant improvements for carers in terms of offering them support in their caring role and in having a life of their own alongside caring. The noble Baroness, Lady Pitkeathley, in Committee on 3 July, said of the attention given to carers in the Bill:
“In the history of the carers’ movement, with which I have been associated for nearly 30 years, it is truly the most significant development that we have seen”.—[Official Report, 3/7/13; col. 1311.]
She said today that it is all she could have dreamed of in terms of the rights of carers. The noble Baroness, Lady Greengross, said that it is one of the best Bills we have seen in a long time. New and simplified assessment procedures will focus on the impact of caring on individual carers and families, on how to support carers to look after their own health and well-being and on the outcomes carers wish to achieve in their day-to-day life, including employment.
We also intend to provide carers with similar rights to support as those for whom they care. This new duty has been warmly welcomed as providing parity of esteem with those who need care and support. They will, of course, benefit from other provisions within the Bill, including the provisions that a local authority must promote an individual’s well-being in all decisions made with and about them and the requirements on what local authority information and advice services should include so that people understand how the care and support system works, what services are available locally, and how to access those services. The cap on eligible care costs will help to reassure everyone that they have a level of protection if they or members of their family have the most serious needs and incur very high care costs. I hope that I have reassured the noble Baroness of our support for carers.
Baroness Deech
My Lords, we start from the position that the European Court of Human Rights found that the situation was discriminatory. As far as I am concerned, it has nothing to do with the Christian Institute or attacks on civil partnership. I have nothing to do with the Christian Institute. I got interested in the Burden sisters’ case because two of my former students were their barristers and the two ladies wrote to me. I then remembered all the other situations that I knew about.
This is not a question of forcing a relationship on anyone. We all know of situations where two people choose to live together: no one has forced them to and either of them could have moved out years ago. There are many of these situations around the country. Two family members have lived together voluntarily and feel slighted when death and other difficult legal situations pop up and there is no proper law for them. That is why I said in my amendment that I was referring to adults who have lived together for five years—I could easily have said 20 years and it would have come to the same thing. I am no longer pushing for a relationship because that has been seen by many in the House to be inappropriate. However, I think it would be heart-warming to those who have written to me and taken an interest in this if the House were to be a bit more generous-spirited towards people who find themselves in this situation. It is a question of equality in a situation where the European court did find that there was discrimination.
People are not tied to each other in such a way that one might take advantage of inheritance tax relief—they have chosen to live together and would expect a hand of equality to be offered to them. The noble Baroness, Lady Northover, pointed out that only a very small number of people pay inheritance tax. The other side of the coin is that, if there were some generosity, for example towards siblings in this situation, a very small number would be affected. As far as I understand it, avoiding inheritance tax is rather more complicated than the noble Baroness has indicated. It takes quite some confidence to start making gifts when you think that you only have seven years to go. As far as I know, if you carry on living in the house, it could hardly be regarded as a gift that you have handed over to someone else; you would have to move out to make it plain that it was a gift.
I hope that between now and Report, the Government would at least give some indication that they will look at inheritance tax in the situation that I have described. Otherwise I might well choose to come back to this in the interests of those who have written to me and who feel that they do not get the same generous treatment on death as others. In the mean time, I beg leave to withdraw my amendment.
Baroness Barker
Before the noble Baroness does that, I would just make a point of fact. If people make arrangements in respect of their property for the purposes of minimising their inheritance tax, they do not have to move out. That is a matter of fact—they can continue to live in the property. I would not like people watching our debate to take what the noble Baroness has said as fact. I believe that she is wrong.
“(ca) regulations under section 22(2)(b) (services or facilities which a local authority may not provide or arrange);”
“(da) the first regulations under section 49(10) (meaning of “business failure”);(db) the first regulations under section 50(1) (criteria for application of market oversight regime);(dc) the first regulations under section 50(4) (disapplication of market oversight regime in particular cases);(dd) the first regulations under section 59(2) (exercise of power to meet child’s carer’s needs for support);”
“( ) Before making an order under this section bringing section (Temporary duty on Health and Social Care trust in Northern Ireland) (provider failure: temporary duty on Health and Social Care trusts in cross-border cases) into force, the Secretary of State must obtain the consent of the Department for Health, Social Services and Public Safety in Northern Ireland.”
“( ) sections (Section 47: cross-border cases), (Temporary duty on local authority in Wales), (Temporary duty on Health and Social Care trust in Northern Ireland) and 49 (provider failure: temporary duty in relation to cross-border cases);”
Civil Procedure (Amendment No. 5) Rules 2013
(10 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Wallace of Tankerness
That the rules laid before the House on 27 June be approved.
Relevant document: 7th Report from the Joint Committee on Statutory Instruments
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I beg to move that the Civil Procedure (Amendment No. 5) Rules 2013 and the Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 be approved. The Civil Procedure (Amendment No. 5) Rules 2013 amend the Civil Procedure Rules 1998 to make provision for closed material procedures in civil proceedings in England and Wales pursuant to the provisions of Part 2 of the Justice and Security Act 2013. The Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 similarly amend the rules of the Court of Judicature to make provision for CMPs in civil proceedings in Northern Ireland brought in under the same Act.
I am sure that many of your Lordships present will be very familiar with the background to these rules: the provisions of Part 2 of the Justice and Security Act, which were debated thoroughly and considerably in your Lordships’ House, but perhaps I may set the context. Part 2 of the Act makes provision establishing a closed material proceedings regime for civil proceedings in the High Court, the Court of Appeal, the Court of Session, and the Supreme Court. CMPs allow national security-sensitive material which is held by a party and relevant to the proceedings to be taken into account through its disclosure to the court and a special advocate representing the interests of the other party. The other party cannot themselves see the material.
It is worth reiterating at the outset that CMPs will be available only in civil proceedings—cases where someone is suing or challenging the actions or decisions of the Government. They will not be available for inquests or for criminal trials and will not allow a person to be found guilty of a crime without knowing the evidence against him or her.
A CMP will be available in relation to any proceedings only if the court makes a declaration that the proceedings are ones in which it should be possible to apply to disclose material by way of a CMP. This can happen only if the court is satisfied not only that the material in question is relevant and that its disclosure would be damaging to the interests of national security but that it would be in the interests of the fair and effective administration of justice for a CMP to be available in principle in those proceedings. In cases where the availability of CMP has been requested by the Secretary of State, the court must also be content that he or she has first considered a claim for public interest immunity in respect of the sensitive material in issue.
If those tests are met, the court may—but, equally, may not—grant a CMP declaration which establishes the principle that closed proceedings may be used in the relevant parts of the case where sensitive material would be in issue. Of course, a special advocate will already have been appointed to represent the interests of the other party. The party holding the sensitive material must then apply again for individual pieces of material to be held in closed proceedings and, in each instance, the judge must decide whether or not the disclosure of the material would damage national security. If not, it is heard in open proceedings; and, if it would and should be heard in closed proceedings, whether it may be summarised by a gist disclosed in open—that is, to all parties to the litigation.
Once that stage—known as pre-trial disclosure—is complete, the judge must review the original declaration to ensure that the tests are still met. If not, he must revoke the declaration. Indeed, the judge may revoke the declaration at any point if he or she considers that it is no longer in the interests of the fair and effective administration of justice.
Turning to the specific rules, the rules before your Lordships’ House this evening insert a new Part 82 in respect of England and Wales into the Civil Procedure Rules and make consequential amendments and modifications.
Section I of Part 82 contains rules about the scope, interpretation and application of the part. Rule 82.2 modifies the overriding objective of the Civil Procedure Rules for the purposes of Part 82 by placing a duty on the court to ensure that information is not disclosed where such disclosure would be damaging to the interests of national security and by requiring that the overriding objective be read and given effect in a way which is compatible with that duty.
The overriding objective continues to apply, so the court must still further the objective of dealing with the case justly, but it must also ensure in doing so that information is not disclosed where such disclosure would be damaging to the interests of national security. That, and the rest of Part 82, is, moreover, subject to Section 14(2) of the 2013 Act or in rules made by virtue of them is to be read as requiring the court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights.
A recent briefing published by Justice on the rules appears to suggest that new Rule 82 provides for the overriding objective and other provisions of the Civil Procedure Rules to be set aside. This is not the case. The overriding objective of the Civil Procedure Rules is still applicable, and is still the objective of,
“enabling the court to deal with cases justly”,
and, since the amendments made pursuant to Lord Justice Jackson’s recommendations, “at proportionate cost”. The court is still enjoined to deal with cases justly, subject to new Rule 82.2. It is not enjoined to ensure non-disclosure at the expense of dealing with the case justly.
Lord Beecham
At end to insert “but that this House regrets that the rules do not reflect the significance of the introduction of closed material procedures to civil proceedings or the concerns expressed by Special Advocates”.
Lord Beecham
My Lords, in moving the amendment in my name, I begin by thanking the noble and learned Lord, as I am sure other noble Lords would wish to do, for his thorough and comprehensive introduction of the rules—without so much as a pause for breath in the 12 minutes or so that he addressed the House. It was, as ever, a compelling performance.
The controversial proposal to extend closed material procedures from the limited category of cases where they previously existed into the area of civil law claims involving the Government evoked much anxious debate in and well beyond this House. Today is not the occasion to revive that debate but rather to consider the nature and effect of the rules of court designed to implement Parliament’s decision, enshrined in the Act which received Royal Assent on 25 April. Notwithstanding the noble and learned Lord’s closing remarks, it must be said that the process itself might be described as something of a closed and rushed parliamentary procedure, since the rules were tabled on 26 June after what appears to have been a minimal consultation period of a mere 10 working days after draft rules were placed in the Libraries of both Houses, and that without any prior announcement.
Given the long gestation period of the legislation, it is surprising that more time was not made available to consult on rules which, on any view, reflect a substantial departure from the principles of our jurisprudence, as does the Act. In particular, they appear to qualify the overriding principle, set out in Civil Procedure Rule 1, that the courts will deal with cases justly and at proportionate cost. Did the Government think to consult, for example, the Joint Committee on Human Rights, the Constitution Committee of this House or the Justice Select Committee, all of which expressed significant views on the legislation in the course of its parliamentary journey? Who else was consulted and with what response? The noble and learned Lord referred to the Delegated Legislation Committee and so on. Were other bodies consulted? Did any body in fact respond in this rather quick consultation period?
As ever, the Government have been quick to find justification for their haste. There are, we are told, some 20 civil cases and some applications for judicial review waiting in the wings—one of which, we understand, has now been initiated. Are these the cases that we heard about between the publication of the Government’s Green Paper and the subsequent passage of the Bill, complete with dire warnings about the likelihood of having to pay millions of pounds, which might find their way into the hands of unidentified terrorists? If so, can it really be the case that a few weeks longer to consider the rules would have made much difference? If not, a fortiori, there would surely have been even less of a problem.
Before I return to the important issue of the effect of the rules as drafted on the principles enshrined in the Act, governing the basis on which the courts have to determine whether to grant an application of closed material procedures, it is necessary to consider some other important issues. The Ministry of Justice effectively appears to have transposed to this new arena of civil law cases the procedures applying in the very different world of special immigration appeal courts. In so doing, as Justice and the Law Society have pointed out, they have paid no regard to the way in which ordinary civil claims are conducted. How, for example, could the so-called Part 36 procedure work, under which an offer to settle can be made by a party, with adverse financial consequences for the other party if the offer is refused and not subsequently beaten at trial? Should this procedure be available where closed material procedures apply, when by definition the adverse party cannot properly assess the strength of the other’s case? If so and it could apply, what modification could be made to it?
A number of other issues have been raised. For example, Rule 82.7 requires notice of hearings to be served on the parties and the special advocate. There was considerable support in debate in your Lordships’ House for the media to be informed of the intention to use CMPs. Will the Government consider a further amendment to the rules to this effect, or will they provide an extra parliamentary process to secure that possibility?
Paragraph (3) of Rule 82.12 permits the court to receive evidence not otherwise admissible. Section 6(4)(b)(iii) of the Act provides that intercept evidence will become admissible. What other categories of inadmissible evidence does the noble and learned Lord envisage will be permitted under this rule or, conversely, what will continue to be excluded under this rule? Paragraph (7) of Rule 82.14 allows but does not require a summary of material not disclosed under CMP to be provided to a party, even where national security material is not included. Again, will the noble and learned Lord look at this, especially where national security material will not be involved? The rule may follow the wording of the Act, but it is open to the Government to indicate that they would not rely on a merely permissive obligation.
Of perhaps greater moment, there is the complete failure to address in these rules the concerns expressed by the special advocates during the deliberations over the legislation. The Justice brief, to which the noble and learned Lord alluded, cites nine major concerns. I will cite just two of them: the lack of any formal rules of evidence and the lack of a searchable database of closed judgments. If the noble and learned Lord has not seen the list, will he undertake to look into the matters raised and respond by way of letter? It is true that the special advocates chose not to revive those concerns, in the context of this limited period for consultation, but they are on the record. In my submission, they should have been dealt with in the course of preparing the rules which we are debating today.
Lord Pannick
My Lords, during the passage of the Justice and Security Bill, I argued for stronger protections for open justice, as the noble and learned Lord may possibly recollect. This is not an appropriate occasion to revisit that battle, but there has, as the noble Lord, Lord Beecham, explained in his compelling speech, been one important recent development which is relevant to this debate on the contents of the rules now before the House. I refer to the recent judgment of the Supreme Court in the Bank Mellat case.
Your Lordships will know that, under the Counter-Terrorism Act 2008, the Treasury took measures to shut down the operations in this country of Bank Mellat, an Iranian commercial bank. The Supreme Court overturned that decision on procedural and substantive grounds. During the appeal to the Supreme Court, the Treasury asked the Supreme Court justices to hear part of the evidence in a closed session. By five votes to four, the Supreme Court agreed to do so. The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, speaking for the majority, explained that,
“on instructions from his clients, counsel for the Treasury told us that a closed session could make a difference to the outcome of this appeal”.
Despite the court having what the noble and learned Lord, Lord Neuberger, described as “real misgivings”, the majority concluded that in the light of the submissions made on behalf of the Treasury, the court had to look at that material in a closed session. After looking at the material in a closed hearing, all the judges agreed that it made no difference to the issues in the case. The Supreme Court justices then made plain that they felt that they had been misled by the Treasury into allowing a wholly unnecessary closed hearing, about which all of them were uneasy, and which some of them thought was wrong in principle. The noble and learned Lord, Lord Hope of Craighead, said that the Treasury’s plea to the court to go into a closed hearing was,
“a misuse of the procedure”.
This is a very troubling episode.
It is particularly troubling because the noble and learned Lord and others assured noble Lords during the passage of the Bill that closed hearings would be sought only where strictly necessary. The Bank Mellat case demonstrates that, on that particular occasion, that principle was not respected in the highest court of the land. In the light of the criticism made by all nine judges of the Supreme Court of the request made by counsel for the Treasury for a closed hearing when, in the opinion of all the judges, there was no justification whatever for making such an application, will the noble and learned Lord tell the House what general guidance has been issued within the Treasury, within other government departments and to lawyers acting on behalf of the Government that in future they should be more careful to ensure that applications for closed hearings should be made only when there is a proper basis to do so?
The only benefit of this unhappy episode is that it led to some useful statements of principle by the Supreme Court which were designed to restrict the use of closed hearings in future cases. Can the noble and learned Lord assure the House that the statements of principle by the noble and learned Lord, Lord Neuberger, to which I am coming, are not overruled or undermined by anything in the rules now before the House for consideration? I should explain that I believe that that is the case; that is, that these rules must be interpreted and applied by reference to the principles set out by the noble and learned Lord, Lord Neuberger. That is one reason why I shall not oppose the rules today. However, I would very much like to hear the noble and learned Lord’s views on these points.
I shall identify the five central principles that the noble and learned Lord, Lord Neuberger, emphasised as important from a common law perspective. First, the noble and learned Lord said that any public High Court judgment must identify every conclusion which has been reached by reference to closed evidence. Will that remain the case under these rules? Secondly, he said that the open judgment must say as much as possible—consistent, of course, with national security—about the relevant closed material. As he noted,
“the more the judge can say about the closed material in the open judgment, the less likely it is that a closed hearing will be asked for”.
Are these rules consistent with that principle? Thirdly, he said that the court must consider whether it is possible to hear argument about the confidential material in open court without referring to any secret detail. Again, are these rules consistent with that basic principle? Fourthly, he said that advocates have a duty to the court to consider whether it really is necessary to ask the court to go into a closed hearing on an appeal. The same principle must apply, I think, to hearings in lower courts. Again, does the noble and learned Lord agree that this principle will apply under these rules? Fifthly, and finally, the noble and learned Lord, Lord Neuberger, for the Supreme Court expressly agreed with the comment of the noble and learned Lord, Lord Hope of Craighead, that judges,
“must be astute not to allow the system [of closed hearings] to be over-used by those in charge of that material”.
Does the noble and learned Lord agree that this principle is also applicable under the rules that we are now debating?
Each of these five principles identified by the noble and learned Lord, Lord Neuberger, is designed to ensure that, because of the vital interest of open justice, closed hearings should occur only when, and to the extent that, they are strictly necessary. My view is that these principles remain valid in relation to decisions under these rules. If the noble and learned Lord thinks otherwise, will he please so indicate to the House and explain why?
Lord Goldsmith
My Lords, my noble friend Lord Beecham has done the House a service by ensuring that we debate openly some of the issues around this procedure and these rules, and he has done so in a very effective and trenchant way. The noble Lord, Lord Pannick, has raised some important questions. I will not repeat them, but I look forward to hearing what the noble and learned Lord has to say in response. In the light of the way that he has presented those arguments and referred to the Bank Mellat case, I can be relatively short in my remarks, but I have two questions that I want to put.
I thank the Minister for the clarity with which he explained the safeguards that are in place and the emphasis he put on the requirements for the interests of justice still to be served notwithstanding these procedures. That is important because, given the rather stark way in which Rule 82.2 reads:
“The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security”,
some could mistakenly reach the view that that has become the overriding objective in this category of case. The noble and learned Lord, in remarks that will be carefully looked at—indeed mined by advocates, special advocates and, I hope, judges—has underlined that notwithstanding that statement, there are clear indications that the interests of justice remain paramount. He referred to the duty or requirements under Section 6 of the Human Rights Act, under Section 6(5) of the 2013 Act itself, and the fact that the first paragraph of the overriding objectives will continue to apply. Overall, what that indicates, if I understood correctly what the noble and learned Lord said—I hope that he can confirm this—is that, in the Government’s view, judges will still need to be guided by the requirement to ensure that cases are dealt with justly in the interests of the litigants.
Having said that, I was one of those who was unhappy about this procedure. I had had experience of closed material procedures when I was in office and I had spent time talking to special advocates. In the end, the House and Parliament were persuaded that the requirements were such that it was necessary to have such a procedure for a limited number of cases. I agree with the noble Lord, Lord Pannick, that this is not the occasion to go back over that question.
I have two questions, apart from those that have been raised by other noble Lords. First, going back to one of the safeguards which was required by the Act, the requirement for a report which now is to be found in Section 12 of the 2013 Act, will the noble and learned Lord please consider with his colleagues what it is that the report is going to contain? We know that by statute it has to contain numerical details of applications and judgments, but what else is it going to contain? One of the difficulties with these procedures is that because aspects of them will not take place in open court, we will not know what the issues are that have been given rise to by such proceedings. The Secretary of State has the power under Section 12(3) of the Act,
“to include in the report such other matters as he may consider appropriate”.
I hope, therefore, that the noble and learned Lord and his colleagues will consider whether matters that are considered “appropriate” would be the sort of thing that show how well the Act is working and whether it is giving rise to the problems that my noble friend Lord Beecham referred to, such as applications under Part 36 and so forth. I hope he can tell us that there will be a real attempt not to limit the reports made under the Act to mere numbers of matters dealt with and declarations made.
The second issue I want to raise derives from the Bank Mellat case. It is very troubling that the Supreme Court felt it necessary to say what it said. I do not know to what extent the Attorney-General was involved in the decision to make the application for a closed material procedure, but it would be a very useful safeguard to ensure that, at least at a certain level, whenever applications are to be made for a closed material procedure, the Attorney-General is involved. That will avoid the situation where counsel who is instructed by his client, which is the way the relationship otherwise works, simply has to accept the view of the officials who are instructing him that the particular matter gives rise to national security issues. It is very easy to say and it is very easy to say it quite convincingly, but it is important that there should be really independent scrutiny of whether it is justified. There will not necessarily be cases where a Supreme Court is in a position to look at it and say as trenchantly as the Supreme Court did in the Bank Mellat case that the application was not justified. I look forward to hearing what the Minister can say about the question of the involvement of the Attorney-General.
Lord Marks of Henley-on-Thames
My Lords, I fully respect the concern of the noble Lord, Lord Beecham, to scrutinise these rules, and I share his view that they are of considerable importance. However, while of course we all accept that these rules ought to be debated, I find this regret Motion and its terms somewhat puzzling.
Along with many others on these Benches, I spoke and voted during the passage of the Justice and Security Bill for amendments that implemented recommendations of the Joint Committee on Human Rights, many in the name of the noble Lord, Lord Pannick, and others. However, I also ultimately accepted that with the safeguards we secured, it was better to enable those few cases which otherwise could not be heard at all, because open hearings would jeopardise national security, to be determined using CMPs. Since then, as the noble Lord, Lord Pannick, has pointed out and the noble and learned Lord, Lord Goldsmith, has amplified, we have had the Bank Mellat case with the trenchant criticisms by the Supreme Court that the application was made. However, those criticisms were applicable to the particular circumstances of that case. It is important and significant that the case nevertheless gave the Supreme Court the opportunity to spell out the principles that ought to be applied when the courts are considering closed material proceedings. I join the noble and learned Lord, Lord Goldsmith, in welcoming those principles, and with the noble Lord, Lord Pannick, in seeking clarification that they still apply. For my part, it seems that they can and do apply under these rules. It was interesting to note that the first Section 6 declaration application has been a claimant’s application, thus vindicating in a startling way our important “equality of arms” amendment.
The reason I find the noble Lord’s regret Motion puzzling is that the rules as drafted contain nothing that we would not expect and omit nothing that we would expect, given the Act we passed and the safeguards we built in. I will briefly give one or two examples. The central point of Part 2 of the Act is to permit CMPs to enable security-sensitive material to be used in litigation without compromising national security. The rules provide for a modification of the overriding objective, as has been pointed out, to ensure that information,
“is not disclosed in a way which would be damaging to the interests of national security”.
The court must still deal with cases justly and in accordance with the overriding objective. I suggest that the modification is the minimum necessary to bring the overriding objective in line with the decision of Parliament to enact the legislation. Furthermore, the court is still specifically bound, as the Minister pointed out, by Section 14(2) of the Act to give effect to the fair trial requirements of Article 6.
Earlier today, Liberty circulated a briefing which suggested that the amendment of the overriding objective is,
“an attempt to undo the modest amendments made to section 6 of the Act as it passed through Parliament. Namely Parliament’s insistence that before an application for CMP can be granted, a court must be satisfied that ‘it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration’”.
That is simply wrong and I regret that I must disagree with the noble Lord, Lord Beecham. The rules are subordinate. They must be read subject to the statutory second condition which he quoted, that it must be,
“in the interests of the fair and effective administration of justice in the proceedings for a declaration to be made”.
That is a precondition.
Section 7 of the Act requires the court to keep any CMP declaration under Section 6 under review and permits the court to revoke it at any time, and requires it to do so following pre-trial disclosure if it no longer considers the fair and effective administration of justice test to be met. That is a very important safeguard which, as my noble and learned friend pointed out, was achieved in this House. The rules in Section 4 provide the mechanisms for those reviews and implement the safeguard fully and accurately.
Finally, the rules provide a comprehensive code for the involvement of special advocates. They give the court judicial control at every stage to ensure that a specially represented party’s interests are compromised as little as is consistent with national security. This was one of the cardinal demands of those of us who believed that it should be for the court to determine when CMPs should be permitted and how they should be regulated. In particular, a special advocate will be able to apply to the court for directions under Rule 82.11, enabling him to communicate with the specially represented party so far as national security allows.
It is a matter of record that the special advocates opposed this legislation. They did so understandably, because CMPs are contrary to the principles of open justice that lie at the heart of our common law system, in which we hear and test evidence made available to all parties in open court. No one disputed then or disputes now that CMPs represent a derogation from those principles. No one, I suggest, underestimated the significance of the decision we took. In passing the Act, Parliament acted on the basis that it was better for the few cases to which it applied to be determined with CMPs than for them never to be determined at all, which was the alternative.
My central point is that these draft rules do no more than fairly and comprehensively implement the will of Parliament. The special advocates have had an opportunity to comment on the draft rules since 3 June, but they have not done so. For those reasons, I cannot see that the noble Lord’s regret Motion is fair or justified, and I therefore oppose it.
Lord Bew
My Lords, I will speak only to the Northern Ireland section of the Motions before the House tonight. I will ask the Minister two questions in the spirit of the remarks that have been made, particularly by my noble friend Lord Pannick, not in opposition in principle to the Minister’s proposals this evening but with a sense that we ought to proceed with great care, caution and circumspection in what is undoubtedly a significant change.
The Minister, in his introductory remarks, referred to consultation between the Lord Chancellor and the Lord Chief Justice of Northern Ireland, and I was delighted to hear that. However, there is also a question in my mind as to whether there was any consultation with the Northern Ireland Human Rights Commission, either by the Lord Chief Justice or through the Lord Chancellor’s office, and just how wide that consultation actually went in Northern Ireland.
My second question very specifically relates to the special advocates, and to vetting procedures for special advocates in Northern Ireland, where I think it is a more difficult matter perhaps than in the rest of the United Kingdom. When the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) came before this House at the end of January 2009, I asked the noble Lord, Lord Bach, who was then the Minister, about the vetting of special advocates in Northern Ireland. He replied that there was a high level of vetting. He referred to credit checks, checks on criminal convictions and so on—similar to those for a civil servant. The documents that I have received so far, either in that case or in the case of the Motions before the House tonight, refer not at all to the special advocates and the level of vetting. I just want reassurance that it is still regarded as a high level of vetting, given the sensitivity of the matters, which inevitably come under the purview of the special advocates, and I ask whether, in the difficult circumstances of Northern Ireland, that level of vetting is, in fact, sufficiently high.
Lord Phillips of Sudbury
My Lords, I will make one brief comment. I start by commending my noble and learned friend the Minister for the way in which he has dealt with this extremely complex set of issues and for the way in which he opened the debate tonight. It is commonplace to observe that closed material procedures touch on matters as sensitive, in terms of the fundamentals of our system, as anyone can imagine. Having heard the extremely thoughtful contributions of fellow Peers tonight, it occurs to me that, if it were at all possible, it would be advisable—if I can put it that way to the Minister—to take away the issues that have been raised here tonight rather than push them through.
There are only a dozen of us in the House at this time. We have heard some extremely thought-provoking points made by the noble Lord, Lord Beecham. The noble Lord, Lord Pannick, referred to the five Neuberger principles—if I may call them that—which all require, I think, considerable further thought. The noble and learned Lord, Lord Goldsmith, raised the issue of potential vetting, so to speak, of applications by the Attorney-General of the day. I hope my noble friend the Minister will not have any fear of going against precedent if he considers it advisable to postpone passing these rules tonight so that the matter can be further considered and brought back immediately after the Recess, because the issues could scarcely be more important.
Lord Wallace of Tankerness
My Lords, first, I thank all noble Lords who have contributed to this debate. As my noble friend Lord Phillips said just now, we are dealing with very sensitive issues, which, in the debates on the Bill during its passage, received considerable attention, not least because of the very fundamental issues of the administration of justice to which they give rise. I think my noble friend Lord Marks of Henley-on-Thames was fair in saying that these rules that we now have are a fair and proper reflection of the architecture and detail of the statute that was passed by Parliament. The fact that it is in the form it is owes in many respects a lot to the work of your Lordships’ House, which the Government had no alternative but to pay heed to after the amendments were passed. The legislation that is in place is the better for that.
A number of important issues were raised. I will try to respond to them but I am conscious that, as the noble Lord, Lord Beecham, said, I spoke without pausing to draw breath. He made a number of important points which I hope I will be able to capture. If I do not cover everything, I will certainly write to him and circulate it to all noble Lords who took part in the debate. I will also address the point he made about the various points in the Justice briefing, although he identified only one or two of those.
Not only was the statutory consultation followed with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland, but we sought also to allow an opportunity for your Lordships who had comments to feed those in, and for Members of the other place to do the same. I simply do not know whether the Northern Ireland Human Rights Commission was engaged in this, or whether the Lord Chief Justice of Northern Ireland consulted. Certainly, he was under no legal duty under the Act to do so. I can also say that the rules were being prepared as the Bill was going through and had to be very substantially changed in the light of the amendments that were passed. That was probably why they were not available at an earlier stage. Notwithstanding that, there was an opportunity for consultation, and, as my noble friend said, the rules we have are a proper reflection of what is in the Act.
Specifically, the Joint Committee on Human Rights and the Constitution Committee were not consulted. At this stage, when we are dealing with rules, the appropriate bodies of Parliament are the Joint Committee on Statutory Instruments and your Lordships’ Secondary Legislation Scrutiny Committee. Those are the appropriate committees to consider the court rules and, as I said, neither of them wished to draw any particular matter to the attention of the House.
In regard to the important point raised by the noble Lord in respect of Part 36 of the rules, Rule 36.14 provides for costs consequences for a claimant who fails to beat the defendant’s offer,
“unless it considers it unjust to do so”.
Therefore the court will, as set out in Rule 36.14(4), take into account all the circumstances of the case, including information available to the parties, and it is expected that the court will be very alert to any issues that might make it unjust to follow the normal rule where a CMP is involved.
It is also important to say that these rules are not set in stone. While the initial set of rules had to be submitted to Parliament for approval as a requirement of the Act in respect of Northern Ireland and England and Wales, any amendment to the rules will proceed by the normal course of amendment to Civil Procedure Rules. If, at a future date, there were to be a change in the rules as a result of representations, that might well be something that could be included in the annual report to which the noble and learned Lord, Lord Goldsmith, referred.
The noble Lord, Lord Beecham, asked about further amendment; as I said, there is a procedure for that to happen. He asked what other forms of otherwise inadmissible evidence there might be. I recall that we went over this during some of our debates. He will find that the answer is in Section 6(4)(b), which says that,
“a party to the proceedings would be required to make such a disclosure were it not for one or more of the following”.
It may well be that if, for example, there had been,
“the possibility of a claim for public interest immunity in relation to the material”,
which could otherwise have excluded the material from closed material proceedings, that, of course, would not happen as a result of this. Therefore, that is another example, in addition to the obvious one he gave in terms of intercept material.
The noble Lord also asked about the database of closed judgments. The Government have sought to improve the database of closed judgments that is available to special advocates, and that work has been ongoing. I will come in a moment to the other important issues about judgments, which the noble Lord, Lord Pannick, mentioned. Of course, the judge’s discretion is there throughout. Whenever the disclosure has happened under Section 8, the judge is then required under Section 7 to look again to see whether it is still in the interests of the fair and effective administration of justice in these proceedings for the initial declaration for closed material proceedings to continue. Almost every step along the way, the interests of fair and effective administration of justice are brought into play.
The noble Lord, Lord Pannick, referred to the recent judgment of the Supreme Court in the Bank Mellat case. What he said in many respects reflected what was said many times during the debate, not least by me. It was there from the very first Green Paper that the intention of the Government is that closed material proceedings should be used in just a very small number of cases. At the time when the Bill came before your Lordships’ House, in the 12 months from October 2011 to October 2012, the figure of 20 was talked about. I do not have an up-to-date figure, but I understand that it has not changed much. Some cases may settle and new cases come in, but that is roughly the order of the cases. It is certainly our view that these cases should arise only where we believe it is strictly necessary. I do not believe that there is anything in the rules that is contrary to the principles identified by the noble and learned Lord, Lord Neuberger, as President of the Supreme Court. I have no doubt, too, that in considering applications for closed material proceedings, these will be drawn to the attention of whichever judge is dealing with it. I am sure that the special advocates involved will be very astute and keen to do so.
However, the important point is that these will be matters for the judiciary, and the judiciary has indicated in that case at the highest level that the threshold is quite a high one. I have no doubt that in the months and years ahead there will be litigation on provisions of this legislation when there will be an opportunity for judges to indicate—with specific reference to this legislation—how it should be interpreted. However, as I indicated, I do not believe there is anything in the rules which run contrary to the principles that have been identified.
The noble and learned Lord, Lord Goldsmith, asked me about what might be in the review as opposed to just numbers. I will give him an indication. For example, if there were a change to the rules of the court—which would not come before your Lordships, it would come before Parliament—that might be reported. In terms of development there would be an indication from the Secretary of State as to how he sees this law working out in practice. Maybe not in the first year, but after one or two years when there is some experience of how it works. I certainly would not see anything wrong in having a bit of a narrative, which can perhaps be expanded, as is possible consistent with the information and national security. The noble and learned Lord, Lord Goldsmith, also asked me whether the Attorney-General was consulted with regard to the Bank Mellat case. I simply do not know and cannot remember being told. He and I know that there is some delicacy as to what you say the Law Officers have been asked; but his comments about the involvement of the Law Officer comes from a distinguished former Attorney-General, and therefore I will certainly ensure that his comments on this are drawn not only to the attention of my right honourable friend the Attorney-General but generally to those who are going to be involved in these cases.
The further point, which the noble Lord, Lord Bew, made, was with regard to special advocates. I have no detailed knowledge of this, but I have no reason to think that the vetting is any less now. Of course, special advocates in Northern Ireland are appointed by the Advocate-General for Northern Ireland, who is of course one and the same person as the Attorney-General for England and Wales, a position which the noble and learned Lord, Lord Goldsmith, has previously held. Therefore, I think he can be assured that the scrutiny that is applied is done to the highest level. I hope that he has that reassurance.
The noble Lord, Lord Beecham, raised a number of points, and I hope that I have covered most of those raised in this debate. I believe that what we have here are rules that fairly and faithfully reflect the diligence of both Houses of Parliament in putting together a piece of legislation which we all recognise is hugely sensitive. In those circumstances, I commend them to the House.
Lord Beecham
My Lords, I am very grateful to the noble and learned Lord and I look forward to hearing further from him on some of the outstanding matters. He may well be right about Part 36 offers—well, of course, he must be right—and that the possible problem that might have existed in relation to costs of a Part 36 application is covered by Rule 36.14, as he says. But of course, that does not leave the party in any better position to assess whether to accept a Part 36 offer. There may not be a cost implication, but he is not in any position to assess the strength or otherwise of a Part 36 offer, which rather distinguishes it from the general case.
I am very grateful to noble Lords who have contributed to the debate, especially to the noble Lords, Lord Pannick and Lord Bew, to the noble and learned Lord, Lord Goldsmith, and to the noble Lord, Lord Phillips, who broadly expressed support for the Motion. The noble Lord, Lord Marks, affects not to understand the reason or terms of the amendment. It is really fairly straightforward, I would have thought. The thrust of the argument that I sought to make, in which I was in various ways supported, is that we are seeing the transposition of a set of rules applicable to immigration cases under SIAC to ordinary civil procedure, as I said in opening the debate. That is the thrust of the first part of the amendment.
The second part of the amendment refers to the points made by the special advocates, to which the noble Lord, Lord Marks, chose not to direct his mind at all. I cited a couple of their concerns, but there were others—and I shall quote them, as we are not holding up a debate on the Care Bill by so doing. For example, among the points that they make, they talked about the,
“inability effectively to challenge non-disclosure … The lack of any practical ability to call evidence … The lack of any formal rules of evidence, so allowing second or third hand hearsay to be admitted, or even more remote evidence; frequently with the primary source unattributed and unidentifiable, and invariably unavailable for their evidence to be tested, even in closed proceedings … A systemic problem with prejudicially late disclosure by the Government … the Government's approach of refusing to make such disclosure as is recognised would require to be given until being put to its election, and the practice of iterative disclosure … The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them … on the basis of the Government’s unilateral view of relevance”.
These were all matters that were raised, and none of them appears to have been dealt with—
Lord Marks of Henley-on-Thames
Does the noble Lord accept the point that I was making, that the special advocates’ objections went to the legislation and were considered by Parliament during the passage of the legislation? The special advocates have not objected to these rules as implementing the legislation. If that is right, that is the query that I raise about the point of this regret Motion, which is directed to the rules in particular.
Lord Beecham
But the points that the special advocates have raised go to the process, which is the subject of these rules. The points that I have made could and should have been taken into account in the drafting of the rules to implement this procedure other than simply on the basis of applying to these circumstances of civil claims the rules that apply in entirely different and non-analogous circumstances of special immigration appeals.
Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013
(10 years, 9 months ago)
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Lord Wallace of Tankerness
That the rules laid before the House on 27 June be approved.
Relevant document: 7th Report from the Joint Committee on Statutory Instruments.