House of Lords
Rights of the Sovereign and the Duchy of Cornwall Bill [HL]
(10 years, 6 months ago)
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Lord Wallace of Saltaire (LD)
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Rights of the Sovereign and the Duchy of Cornwall Bill [HL], have consented to place their prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purpose of the Bill.
Lord Berkeley (Lab)
My Lords, I am very grateful for the Minister’s statement, which means that I can now proceed.
Before I get into the substance of the Bill, noble Lords might be interested to hear that I found out recently that an ancestor of mine, the third Earl of Berkeley, who was later the First Lord of the Admiralty, was a leading member of something called the Kit-Cat Club. I do not know how many noble Lords know about the Kit-Cat Club but in the early 18th century it was one of those organisations—largely a Whig one—which were united in their belief in the authority of Parliament over the monarchy. One has to consider how much has changed.
This Bill proposes comparatively small changes to the relationship between the monarchy and Parliament, and perhaps starts the process of what I hope will be quite a long discussion over the coming years. There are three clauses in the Bill. The first one amends the Sovereign Grant Act 2011 in respect of royal travel. This is a serious issue because there is a question over how many royals and royal duties should receive taxpayer-funded travel, as well as the scrutiny that Parliament has over these arrangements. I have been following this for some years, as noble Lords will probably know, and have noted that Parliament gets less and less detail of how many journeys there are by air and rail and how much they cost.
I noted that Prince Andrew flew to Jeddah for a funeral, chartering his own aircraft at a cost of £86,000 to the public purse, when the return fare for two people, first class, would cost four grand. Is there an argument for having your own plane to go to a funeral when there is a scheduled direct flight? At the other extreme, Princess Anne does an awful lot of good for transport particularly, but I noted that she took a helicopter to visit two gymkhanas in one day. That is fine if you are horsy but is it really necessary that the taxpayer pay for it?
What worries me is that the arrangements seem to have become open-ended. They used to be confined to 12 members of the Royal Family, but I got a Written Answer on 3 September that said:
“It is for Her Majesty The Queen to decide which members of the Royal Family receive support from the Sovereign Grant to meet travel costs”.—[Official Report, 23/9/13; col. WA 441.]
However, there seems to be no proper independent scrutiny where taxpayers’ money is involved. That obsequiousness seems to affect many of the dealings between Parliament and the royal family, and needs to change.
Clause 1 suggests that the costs should be kept under control and scrutinised. Six members seems a good number. Many years ago, when the Queen was a princess, there were probably only six members of the family performing royal duties; should there be any more? Royal travel arrangements, if funded by the taxpayer, should be scrutinised by Parliament in the same way as Ministers’ travel.
Clause 2 addresses two issues. The first is comparatively minor. It seems reasonable that the heir to the Throne should inherit the title of the Duke of Cornwall, whatever their sex. We debated that when discussing the Succession to the Crown Act, and it seems perfectly reasonable.
Turning to the second half of the clause, as a resident of Cornwall, I hear a lot of views about the Duchy, some good, some bad, but there is an awful lot of correspondence. I see the second half of the clause as tidying up some history. I suggest that the present status and structure of the Duchy remains pretty feudal, and that it is intentionally so, as it seems to suit all those involved not to rock the boat and incur what one might call royal displeasure.
We start with a big debate about whether the Duchy is in the private or the public sector. There is secrecy, obfuscation, Crown immunity and a failure to respond to questions. It is worth going back a bit in history. The Duchy has been around for a very long time, but I discovered that the Duchy of Cornwall Act 1860 states:
“All the provisions of the said Act of the ninth year of King George the third now applicable to Her Majesty, her Heirs and Successors, shall be extended and be applicable to the Duke of Cornwall, in like manner as if the same were re-enacted and the Duke of Cornwall were throughout mentioned or referred to where the ‘Kings Majesty’ or ‘His Majesty’ is in the said Act mentioned”.
That means that the Duke of Cornwall is effectively in the position of King of Cornwall. We can debate whether that appeals to the people of Cornwall, but it is confirmed in a preliminary statement by the Duchy of Cornwall in a foreshore dispute in 1856. It suggests that the three Duchy charters are sufficient in themselves to vest in the Duke of Cornwall not only the government of Cornwall but the entire territorial dominion.
It is also interesting to note that, whereas the sheriffs of the counties of Britain swear an oath of allegiance to the sovereign, the Sheriff of Cornwall swears an oath of allegiance to the Duke of Cornwall as sovereign of Cornwall. Those examples appear to provide strong confirmation that the Duchy is a public body and, as such, subject to environmental, housing and other laws. That was confirmed in a judgment concerning Port Navas on the Helford river on the question of whether the Duchy should be subject to environmental legislation. The Duchy lost the case, perhaps influenced by evidence from the Duchy which said that,
“the Duchy is not democratically accountable in any meaningful sense”.
The Duchy is appealing; that appeal is still pending, but it must be comforting for it to have the free advice of the Treasury Solicitor. The man who made the original complaint has to fund his own legal costs; we are funding the Duchy's costs.
There is an issue of tax. The Public Accounts Committee published a report last week which, I thought, was very deferential. I am sure that if I or any other noble Lord had been questioned by the Public Accounts Committee about not paying tax, we would not have received the response that, yes, there ought to be a bit more investigation by the Treasury. The Treasury responded even more deferentially. That was an opportunity lost to get things on a proper footing. Then there is the question of Crown immunity. The Duchy does not pay capital gains tax or corporation tax, and Duchy income is taxed on a voluntary basis. Would not we all like to be taxed on a voluntary basis?
The Duchy accounts state that, in accordance with the memorandum of understanding of 1993, the Prince of Wales pays rent on Highgrove, his house in Gloucestershire. There is no lease in place and, as I understand the evidence given by Sir Bertie Ross for the Duchy, the Prince is entitled to the income from the Duchy, so it would be a matter of the Prince taking money from one pocket and placing it in another, so he does not actually pay rent. He can claim tax relief on that proportion of the rent which relates to Highgrove being used for public purposes, so it appears that he is claiming tax relief in respect of rent which is paid in theory but not actually paid or which, having been paid, is returned to him. I hope that noble Lords can follow that.
On the issue of housing, Mr Alan Davis, who lives in the Isles of Scilly, wants the right to buy his leasehold property from the Duchy. He is challenging the Prince on his decision in the Prince’s Council to resist that because the Leasehold Reform Act does not apply to the Duchy because of Crown immunity. There is an awful lot of confusion and documents have been lost. Mr Davis’s case comes before the tribunal in Truro, so I shall not comment on it further. It seems wrong that people who live in houses leased from the Duchy cannot buy their own houses in the way that other people can because the Duchy claims that it wishes to manage the built and national environment. There is legislation to do that. The Leasehold Reform Act may not be perfect, but the exclusion of the Duchy from it is a matter of concern.
The next issue is the rents that the Duchy charges for its properties. According to Richard McCarthy, who is chair of the Duchy Tenants Association, average Duchy rents in 2011-12 were £130, whereas council rents averaged £70 and housing association rents averaged £100. The average household income on the Scillies is just £277 a week, compared with the national average of £390, so those rents are very hard for tenants in the Duchy to afford.
My last example is something called bona vacantia. It applies to people who die in Cornwall without a will. Their estate then goes to the Duchy. It is worth about £500,000 a year. I think that the people of Cornwall think that that money should be spent on good causes in Cornwall, but it appears from the Duchy accounts that it is distributed to Strata Florida in Wales, Gordonstoun School, which Prince Charles attended, and a Kennington residents’ association. Because the money came from Cornwall, there is a feeling that the funds should be distributed to good causes in Cornwall.
I have been able to give just a snapshot of the obfuscations, uncertainties and spurious claims by the Duchy of being in the private sector or in the public sector and having Crown immunity, which seems to vary on the time and the subject, all coupled with the secrecy from both the Duchy and, sad to say, the Government, whose obsequiousness sometimes seems more appropriate to a feudal era, when the Prime Minister would get his head chopped off if he did not do whatever the sovereign or the heir to the Throne wanted.
I have had lots of support from the people of Cornwall about this; many of them fear that they cannot speak out, and one can understand why. So my solution is to separate the Duchy estate from any historical link with the monarchy and turn it into a public trust for the benefit of the people of Cornwall and the Isles of Scilly. There is over 600 years of history to unravel and that is not easy, so this would need secondary legislation and perhaps some primary as well, but the opportunity should be taken to clear up all the anomalies about the status of the Duke of Cornwall and his rights. In this context, my Bill would ensure that the Prince of Wales should no longer be King of Cornwall in the feudal sense. I think that he should retain his links with Cornwall as he does with Wales—but he does not own Wales. That is the purpose of that clause.
Clause 3 has rather been overtaken by events. It concerns the issue of consent from the Queen or the Prince of Wales before a Bill receives Royal Assent. The Minister kindly indicated the consent at the start of this debate. I do not need to go into this topic in any particular detail because, in evidence to the Political and Constitutional Reform Committee on 31 October, the Clerks of both Houses of Parliament basically said that Parliament could change that; it would not need any legislation but if it wished to stop this, it could do it. To demonstrate why we need to change the current arrangements, I have a couple of examples of cases where approval was not signified for a Bill. The Clerks’ evidence is that this has happened twice. Although the legislation was not refused—this is a deferential way of “not saying no but meaning no”—two Private Member’s Bills were affected. One was the Second Reading of the Military Actions against Iraq (Parliamentary Approval) Bill on 16 April 1999, in which Tam Dalyell tried to require Parliament to give approval of declarations of war, which did not go ahead because the Prime Minister of the day almost certainly advised the Queen that it would not be a good idea to go ahead, perhaps because he might want to bomb Iraq without getting the approval of Parliament —we can debate that. The other was the Third Reading of the Pig Husbandry Bill on 3 May 1991. I do not know whether the Royal Family keep pigs in Windsor Castle, but why that did not go ahead I also do not know. All I can do is quote John Kirkhope, a public notary and chartered insurer who has given me a lot of help with this information:
“I am surprised Parliamentarians tolerate this situation which means, in effect, if you introduce a Bill to Parliament someone taps you on the shoulder and says you need the consent of the Duke of Cornwall because it may affect his private interests!”.
So I hope that when the Political and Constitutional Reform Committee reports it will be a lot more robust and less deferential, and will recommend the end of this feudal period.
In conclusion, there is much that needs doing, sorting out and cleaning up in many areas of the relationship between the monarch, the Prince of Wales and Parliament. I hope that the constitutional monarchy survives and prospers but at the moment the Prince of Wales in particular is put in an impossible position in seeking to do what he believes is best in a kind of feudal environment that started 600 years ago but in the 21st century is not appropriate. Change is necessary, but we have to get away from this deferential relationship of obfuscation and silence that is hampering the debate. I hope that the Bill, covering only a small part of that relationship, will start an open debate and eventually some very necessary change. I beg to move.
Lord Cormack (Con)
My Lords, I suppose you could call that a Duchy original. I know that the noble Lord, Lord Berkeley, is a very genial man outside this Chamber, but I have to say this morning he reminded me of that wonderful character from ITMA, Mona Lott, in that it is being so cheerful as keeps him going. What we have had this morning is an extraordinary series of disconnected accusations and observations. He referred to Clause 3 of his Bill and said that legislation was not needed. I would say that legislation was not needed on this particular subject, full stop. While I yield to no one in my admiration for the noble Lord and recognise that he is the last person that anyone would dare to call obsequious, nevertheless I think that today he has got it wrong.
The noble Lord has a reputation for being a fine engineer. I am sure that he is. As a fine engineer, though, he knows that precision is very important. He knows that if you are called out to repair something, you do not go along to repair modern machinery with a bag of wooden tools. That is in fact what he has been doing today.
I would just make a few points to your Lordships in opposing the Bill, which I am delighted to do. Yesterday we were debating Magna Carta and the importance of the rule of law. Earlier, my noble friend Lord Norton of Louth had an interesting debate in the Moses Room on commencement orders, to which my noble friend Lord Gardiner, sitting on the Front Bench, gave a most excellent reply. The theme of that debate was that legislation must be demonstrated to be necessary and designed to solve a specific problem or provide a proper remedy, and then it must be properly enforced. One of the underlying themes of that debate, particularly emphasised by the noble Baroness, Lady Royall of Blaisdon, was that pre-legislative scrutiny was really a necessary precondition wherever possible—one accepts terrorism legislation sometimes, and things like that—for all legislation. If ever there was a need for pre-legislative scrutiny, it is here.
I do not believe that legislation is necessary, and I certainly do not think it should be embarked upon without the most careful examination. I suggest to the noble Lord, Lord Berkeley, that what we should be doing is referring some of the matters that give him concern to the Constitution Committee of this House and there should be a proper, thorough and objective examination. Merely to base one’s case on a number of isolated examples, as happened towards the end of the noble Lord’s speech, is no way to proceed to legislation in this House, particularly on a very sensitive matter.
I refer again to the noble Lord’s career as an engineer—a very illustrious and successful one. He knows as an engineer that a delicate mechanism can be thrown completely out of gear by the removal of one apparently insignificant part. One often finds this quoted particularly in the case of clocks and watches. If there was ever anything that was delicate and needed the most careful handling, it is our British constitution. It is not a written constitution. Some may wish that we had one, as some did in last night’s debate, but we do not. We therefore have to look very carefully at what we are doing when we come to constitutional reform.
This Bill is, in a sense, the son of the Succession to the Crown Bill, because during the passage of that Bill the noble Lord, Lord Berkeley, moved amendments, referred to his concerns about the Duchy of Cornwall and advised the House that, at some stage in the future, he would seek to introduce legislation. On 14 May, he was as good as his word when he produced a Bill which had its First Reading on that day.
Many of us were concerned about the Succession to the Crown Bill because we believed it had not been sufficiently thought through. There were implications for the Church of England—the established church—which concerned the Bench of Bishops. Indeed, the Minister, the noble and learned Lord, Lord Wallace of Tankerness, who had charge of that Bill in this House and handled it with great skill and sensitivity, was at pains to ensure that, in answer to a Parliamentary Question, certain correspondence with the Roman Catholic church was published.
Those of us who felt that that Bill had perhaps been a little rushed were not against the essential principle about the succession of a woman—of course not—but we were concerned about some of the implications. It was suggested that because the Duchess of Cambridge was with child, it would be as well to get this Bill through quickly. Of course, the child arrived, the child was a boy, there was great rejoicing, and the sense of urgency—if ever there was one—disappeared, so there is no urgency about this. That underlines the point I made a few moments ago, that if these subjects are to be looked at, they need to be looked at carefully and deliberately, and if there is to be legislation of any sort, it needs the most careful pre-legislative scrutiny. The whole issue would benefit very much from the considered observations of the Constitution Committee of this House.
Lord Forsyth of Drumlean (Con)
I have been thinking about my noble friend’s watch analogy. Does he not think there is something of an irony about a hereditary Peer given a life peerage attending a House which is not subject to democratic accountability and in which we are given tax-free allowances complaining about tax privileges and a lack of accountability?
Lord Cormack
My noble friend Lord Forsyth, not for the first time, puts his finger on a number of interesting issues upon which the noble Lord, Lord Berkeley, might reflect. When he is contemplating the illustrious past of his family, and its contribution to the Kit-Cat Club, the portraits of whose members hang in Brooks’s Club to this day, he might just wonder whether, in fact, he has not been guilty of a little inconsistency.
There is one part of the Bill that I find particularly niggardly. It is the part dealing with travel. The noble Lord wants to restrict those who can have official travel to six members. He bases this on the fact that the Succession to the Crown Bill specifically mentions the six next in line who have to seek the permission of the sovereign to marry. We had debates on this and amendments were moved, including, if I recall correctly, by my noble friend Lord Lang, to extend the number to 12, but the Bill went through with six in it. However, there is no analogy. One has to realise that there are many members of the Royal Family who give unstinting public service and whose presence at public events is greatly welcomed. I do not want to be invidious and give a long list, but I single out particularly the Duke and Duchess of Gloucester. The Duke of Gloucester is punctilious in fulfilling a range of engagements. I have attended a number of engagements which he has attended. The pleasure that he gives by going and the interest that he takes in the people he meets are of enormous value and worth. I believe that it would be niggardly in the extreme to say that only six members of the Royal Family should be allowed to travel to fulfil their official duties at the taxpayer’s expense.
In his concluding remarks, the noble Lord referred with what seemed a less than enthusiastic endorsement to constitutional monarchy. I believe very passionately in our constitutional monarchy. For well over 60 years now, Her Majesty the Queen has served this country absolutely impeccably. I believe that we are all enormously in her debt and that of members of the Royal Family, and I do not believe that now is the time to be nitpicking about the Duchy of Cornwall. The Duchy of Cornwall goes back 600 years. That, in itself, may be a reason to say we should have a look at things, but it is no reason to embark with a rather blunt instrument on an attack on an institution that has served us very well.
It is good to have debate in this House, and it is important that when issues such as this are raised, there is an opportunity to comment on them from both sides of the argument. I do not believe that the noble Lord, Lord Berkeley, has this morning made a case for this legislation. I believe it would be hasty and ill considered and that, if we are to look at these subjects, they need to be looked at in detail and in depth, dispassionately, objectively and carefully. All those qualities can be brought to bear by your Lordships’ House. They should be brought to bear. There should be no question of letting this Bill proceed anywhere near the statute book. I am confident that it will not.
Lord Teverson (LD)
My Lords, I am very proud to be a resident of Cornwall. I represented Cornwall, together with the Isles of Scilly—which are mainly a Duchy possession and are very proud to be separate from Cornwall—in the European Parliament and was a member of the unitary authority for Cornwall when it was first established in 2009.
What has come over from the speeches from noble Lords so far is an argument about the position of royalty and the monarchy, and all that rather contentious area. I am sure that that was intended by both noble Lords. I rather support the Bill because it covers a number of very sensible issues in a very short way. I do not necessarily agree with all of it, but there are certain areas where changes make an awful lot of sense. Such changes would, ironically, probably strengthen the monarchy in the way that it operates in the future. I shall very briefly look at a couple of points that are brought up in the Bill.
The first is consent. I was interested to read the excellent briefing put together by the House authorities. I had never realised that it is a convention that both Houses of Parliament consult the monarch or the Duke of Cornwall on legislation that would affect their interests. I find that quite strange. I was pleased to see that the Clerk of the Parliaments and the Clerk of the House of Commons made clear that there is no need for legislation, as this could be changed by resolution of both Houses. Having said that, I think it is a good issue to bring up. It is strange, and most people would find it quite at odds with the way that a sovereign Parliament would be expected to act. The issue is well worth pursuing, and I would be very much in favour of removing the requirement of consent. It seems to unnecessarily put a question about the way that the sovereign or the Duke of Cornwall acts before legislation comes before Parliament. I would have thought that it would be useful to everybody if that process no longer happened.
In terms of who the title of Duke of Cornwall can pass to, Parliament has decided that the royal succession should now be gender-neutral, and it is obvious to me that that principle should be applied to the Duchy of Cornwall. It seems to be a complete anomaly. I understand absolutely why the Government did not include that in the Succession to the Crown Act 2013, because they needed to keep that Bill as narrow as they could to meet the needs of other Commonwealth nations that have the Queen as head of state. However, I see absolutely no reason why we should not move forward on that. In fact, that would be extremely positive.
The future of the Duchy of Cornwall estate is perhaps far more contentious. As it is currently, it does not sit comfortably. Particularly in the Isles of Scilly, there is the practical issue of residents feeling that they are in quite a difficult position in terms of how the Duchy operates, the agent and all the issues which affect the lives of the islands’ citizens and families. I am not sure that it is as comfortable or correct as it should be. In a constitutional monarchy, it makes sense that the heir to the Throne and the sovereign should have similar or identical budgetary and financial procedures. I do not see why we should have a separate Duchy of Cornwall estate any longer. Having said that, I am absolutely sure, knowing Cornwall very well indeed, that even if the estate went into a public trust, that would not send away all the arguments about it and about how the money should be used. Would it stop my honourable friends in the other place, including my own MP, from receiving letters about how this money is used and assets are distributed, disposed of or developed? I am absolutely sure that it would not. It would certainly not be a silver bullet. However, it would be an improvement. These areas all deserve further investigation. They are sensible suggestions and would in fact strengthen the constitutional monarchy in this country, which is perhaps ironic for the noble Lord, Lord Berkeley.
One thing I will say, from my experience in Cornwall, in business and as an elected politician, is that the Prince’s Trust, which I have worked with a number of times, has been absolutely excellent. The work that it undertakes is extremely good, in terms of helping younger people enter business and make a much greater contribution to society. Those programmes have been excellent and most successful. The issues in the Bill need looking at, although how important they are is perhaps another matter. I suspect that the Bill will not take up a huge amount of the House’s time between now and the next election. The issues are important in principle.
Lord Stevenson of Balmacara (Lab)
My Lords, we owe my noble friend Lord Berkeley a vote of thanks for raising an issue of this nature. It has not been an easy debate for him to launch, but he has struggled on with it. As he said, he has been following these issues for some years. The note from the Library which came around earlier certainly exemplifies that, with the number of questions that he has been asking and the detail that he has been trying to dig out.
The noble Lord, Lord Cormack, obviously takes a different view and did so in his very interesting style. As somebody on these Benches said to me, it was a speech that could have been made at any time in the past 400 years. There is credit in that; it is a compliment, not necessarily an attack. He referred to yesterday’s debate on Magna Carta, which was extremely interesting because, among the issue that we talked about—how Parliament would celebrate Magna Carta in June 2015—there was a current about the constitutional issues.
There is no doubt that Magna Carta in its original form and various manifestations since then—something like 14 different charters were issued until it died out in the mid-15th century—was and is a particularly important document for the way we organise and run our society. Is it a constitutional document? Almost certainly, and two clauses in it are still extant in our laws. However, the point is that we do not really understand where our constitutional documents lie. People often ask for a written constitution. As I said yesterday, that is a mistake: most of the constitutional arrangements are written down, but the difficulty is that they are not brought together in a codified form. Even if that were to happen, as I strongly believe it should, difficulties would remain with the royal prerogative and other areas of our constitution which are not as well exposed as they could be.
That is my point about this Bill. My noble friend Lord Berkeley makes a number of specific proposals, but the general point is about trying to throw a light on activities which affect individuals up and down the country, but particularly in Cornwall. That plays to a larger concern about the extent to which those areas of our constitutional arrangements which are not as well scrutinised as they might be can sometimes affect particular aspects of the process of government in which we are all involved. It may well be that pig husbandry is not the most important issue. However, this is probably not the only Bill—there was another one—in respect of which thought was given to whether, if put forward in its present form, it might need to be changed later. My noble friend Lord Berkeley is pointing up, in this section of the Bill, the hidden areas of activity which make up the law-making and governing of our country.
Other parts of the Bill will apply in other ways to different areas. However, it seems to me and these Benches that we should not miss the chance to have a good look at some of these areas and the specifics that my noble friend has raised in his Bill. We should be concerned about whether or not this is the right way of proceeding with this sort of legislation. The noble Lord, Lord Cormack, is right to say that all legislation would be better if it were subject to pre-legislative scrutiny. I wish his party could put more effort into that—I am thinking in particular of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which is a classic. The noble Lord nods well, but I wish that he would join us in discussion sometimes. I look forward to seeing him on those Benches on Monday when we will talk about Part 3, which was subject to no consultation whatever before being introduced. Is this the way to govern a country? No, it is not.
We accept pre-legislative scrutiny. The Bill has not been subject to that, although it is hard to see how it could be, given that it is a Private Member’s Bill. To the extent that it could be discussed, we wish it well.
Lord Wallace of Saltaire (LD)
My Lords, this is the second of two Private Members’ Bills we have had in this Session which attempt to “tidy up”, as the noble Lord, Lord Berkeley, said, our history. I have mixed views on this. The noble Lord himself holds a feudal title which is old enough to descend along the female line. As a liberal, in many ways, I am thoroughly in favour of a rational and written constitution. I think I am right in saying that the Act of 1863, one of the first of the modern Acts which regulate the Duchy of Cornwall, was passed under a Liberal Government at the same time that that Government proposed for the first time that the Law Lords should be separated from the House of Lords—something which took only 160 years to carry to its conclusion.
The Duchy goes back nearly 700 years. I have a sense from debates on Lords reform that there is not an enormous appetite in the Chamber for rationalising our constitution. I have myself come up against some interesting historical anomalies. Many years ago, when I was first in this House, I asked some questions about the Crown dependencies. The chief executive of Jersey came to see me the following week and started by saying very vigorously, “I hope you understand that we were promised in 1204 that the Channel Islands would be a low-tax jurisdiction”. Some while later I asked to see the charter which had promised that and was told that it has been lost in the late 13th century. If one starts trying to rationalise the constitution, a number of issues come into play.
I associate myself with what the noble Lord, Lord Teverson, said about the good work of the Duchy of Cornwall—the Prince’s Trust. There was a remarkably positive article in the Financial Times last weekend about Poundbury and how, in spite of all its critics, it is a working local community with a great deal to offer, particularly in environmental terms, as a place for people to work as well as live.
The Bill has three separate parts. The first proposes restrictions on the use of the sovereign grant for travel. The noble Lord, Lord Berkeley, made a number of pointed criticisms of current members of the Royal Family, which in some ways we should as a House regret as they got relatively personal. Her Majesty the Queen asks a number of members of her family to stand in on her behalf as engagements demand and some of these, as has been said, are members of the Royal Family who are lower than sixth in the line of succession. The Royal Family carries out a large number of public duties and the sovereign is well placed to assess who can best take her place at functions—particularly as she still carries out a great many duties but obviously not as many as she was able to do some 20 or 30 years ago.
The second part proposes amendments to the Duchy of Cornwall estate. The Duchy of Cornwall is an interesting anomaly. It is a private estate that funds the public, charitable and private activities of the Prince of Wales and his family but, as the noble Lord, Lord Berkeley, has commented, it is nevertheless governed by a number of Acts passed in the past 150 years, the combined effect of which has been to place the Duchy’s assets in trust for the benefit of the present and future Dukes of Cornwall and to govern the use of the assets. Many of the assets are in Cornwall but quite a large number of them are outside Cornwall. Mention was made in this debate of the Kennington estate.
His Royal Highness the Prince of Wales and Duke of Cornwall is entitled to the annual net income of the Duchy. He is not entitled to the proceeds or profits from the sales of the Duchy’s capital assets, which are retained in the Duchy to provide income for the Duke and future beneficiaries. Since it was established in the early 14th century, the Duchy’s main purpose has been to fund an income independent of the monarch for the heir apparent. The current Prince of Wales chooses to use a substantial proportion of his income from the Duchy to meet the costs of his public and charitable work. At present the Duchy funds the public and private lives of four members of the Royal Family—the Prince of Wales, the Duchess of Cornwall, Prince William and Prince Harry. The Bill’s proposal to place the assets of the Duchy of Cornwall in public trust is an unacceptable encroachment on private property rights as currently established. If the Duchy were to be taken away from the heir apparent, it would still be necessary to fund their activities through the sovereign grant.
The next part touches on succession to the Duchy of Cornwall and this overlaps with the previous Bill we were discussing on the succession to the Crown. I have some sympathy with the anomalies at stake and the peculiarity of this charter. There are many peculiarities in succession. I was talking to the noble Countess, Lady Mar, yesterday about the succession to her Earldom and the noble Lord, Lord Berkeley, himself benefits from a particular sort of succession. Rationalising all of these may be part of what we need to do in the 21st century and I recognise that, when it comes to the Royal Family, this is a particularly interesting issue to attack. However, if we look back at recent history there have been long stretches when there has been no Duke of Cornwall and the Duchy has continued to manage its affairs well. There is nothing to stop a female heir having an active role in the running of the Duchy should the sovereign so wish. I can also reassure the House that a female heir apparent will not find herself at a financial disadvantage because the Sovereign Grant Act 2011 broadly ensures that financial provision equivalent to the income from the Duchy is made for the heir apparent.
Then we come to the removal of the Queen’s and Prince’s consent—a rationalisation of one of the ancient practices of the two Houses of Parliament. It is a long-standing parliamentary requirement that the consent of the Queen and the Prince of Wales should be given for certain Bills. The parliamentary authorities decide which Bills require that consent, not the Government. Signifying the consent of the Queen and the Prince of Wales for certain legislation is a parliamentary requirement and the Government will continue to do that for as long as Parliament requires it. The Government’s role is to ensure that consent is sought for government and Private Members’ Bills when it is required by Parliament. This requirement reflects the unique relationship between the sovereign and the legislature which is rooted in the historical royal prerogative and provides for a formal parliamentary process by which the sovereign can be informed of, and consulted on, legislation which affects the sovereign’s prerogative and interests. The Government will generally seek consent for Private Members’ Bills even when they oppose the Bill on the basis that Parliament should not be prevented from debating a matter on account of consent not having been obtained.
Lord Berkeley
My Lords, I am very grateful to all noble Lords who have taken part in this debate. It has been a very interesting debate and, unsurprisingly, not everyone has agreed with each other or with my Bill. I am not going to respond in detail to all the issues raised by the noble Lord, Lord Cormack, but he said that pre-legislative scrutiny for something like this was essential, which is not very different from my purpose in moving the Bill. We need to have a discussion. We can decide how it is done but we certainly need to debate it further. I have looked into the Duchy of Cornwall in a bit of detail and there is no way that a Private Member’s Bill could ever seek to change what is there because of all the historical issues that have been discussed today and probably many more. My purpose was to start a debate on it and I think we have had a good debate.
I am grateful to the noble Lord, Lord Teverson, for his support. He said that if the Duchy was converted into a public trust it would not stop the debate. He is absolutely right. It would continue between all his different Members of Parliament in Cornwall, but at least there would be a public debate, which is one of the most important things.
It was not my intention to say that we should not do anything until we have a written constitution. It gives the impression of opening a can of worms almost and that is always a danger in doing something like this. Something could probably be done about the Duchy and some of the other issues if there was a will to have further discussion, which could happen rather more quickly.
Finally, the Minister said that the Duchy was a private estate. From the information I have, this has never been debated and it has never been tested in court and I do not think there is any legislation to say whether it is. I think that probably needs to be reviewed because out of it—I tried to give a few examples—come a number of anomalies that need sorting out. We have had a very useful debate which I wish to continue.
Health and Social Care (Amendment) (Food Standards) Bill [HL]
(10 years, 6 months ago)
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Baroness Cumberlege (Con)
My Lords, I declare my interests, which are in the register. I am the executive director of two companies, Cumberlege Connections Ltd and Cumberlege Eden & Partners Ltd. I thank noble Lords who are taking part in this debate, in particular my noble friend the Minister, who I know is sympathetic to the cause. I hope that I will not be too disappointed. He may be interested to know that many other noble Lords very much wanted to take part in this debate. However, Friday is a difficult day for your Lordships as we are a voluntary Chamber, and many noble Lords have commitments that they fulfil on Friday when the House does not usually sit.
I thank the hospitals I visited, which generously, and perhaps with some courage, allowed me to see and taste the hospital food and to talk to patients. On the whole, I was disappointed. When the food is frozen and has to travel from Wales to hospitals in England and is then reconstructed by steam, is it surprising that fish and chips are soggy and that other food is not quite what you anticipate it will be? Finally, I thank the excellent briefings I have had from the Campaign for Better Hospital Food, whose supporters exceed 5,000 individuals and many other organisations.
At the age of eight I was sent to boarding school, and the most precious item in my trunk was my ration book. School food in post-war Britain was not good. Fish on Fridays was no surprise, because you could smell it at 10 in the morning. Jam was either red or yellow, and made with mangels, and resurrection pudding lived up to its name. After decades of prosperity, however, British food has now changed enormously and beyond all recognition. For instance, whatever happened to gravy? Gravy now masquerades as jus, and leek and potato soup is now vichyssoise.
Virginia Woolf said,
“One cannot think well, love well, sleep well, if one has not dined well”.
When in hospital we do not expect to dine well, but expect to have delicious, appetising and nutritious food—food that aids recovery. In the past 20 years successive Governments have spent more than £50 million of taxpayers’ money issuing guidance to hospitals about how to improve patient meals. When I was a junior Minister I was one of those who tried. I was responsible for food—that was before the Food Standards Agency was established—and introduced the nutrition task force, which in turn set up a hospital catering project team that produced nutrition guidelines for hospital food. Those were launched by the celebrity chef Albert Roux. In the foreword he wrote:
“Food should be regarded as an integral part of hospital service and treatment … Food provides us with the nutrients essential to our existence and general health … In providing comfort, food can also help to make patients feel more at home, reduce stress, and actively contribute to an ambience that can enhance the quality of medical treatment”.
Despite my efforts and those of successive Governments, in many hospitals the food is unappetising, non-nutritious and does nothing to aid recovery. Six out of 10 patients say that they rely on family and friends to bring them food because the food is of such poor quality, and sometimes barely edible. At many hospitals patient meals are viewed as a bureaucratic necessity and not as an integral part of care. Hospital life is boring. When in hospital, patients want three things. They want to go home, they want visitors and they want good nourishing food, because it is food which punctuates the day. That should be something to look forward to, but many patients dread it. The Francis inquiry into Mid-Staffordshire was deeply concerned about the attitude by staff towards meals, mealtimes, nutrition and dehydration. The witnesses’ comments are heartbreaking. I could quote many but will quote only one:
“On examining the food and fluid intake chart, mum had only had half a cup of tea over the last 20 plus hours. Some days nothing was marked as being taken, today there were three cups of fluid on the table, all of which were full. She couldn’t have drunk them if she tried because all three of the cups were placed way outside her reach”.
I do not underestimate how difficult it is to serve meals to large numbers of sick people three times a day. People who choose a meal one day are discharged the next, so that an incoming patient is welcomed by a meal they may detest. Some people may have uncompromising diets or have an appetite which changes from day to day due to the medication they receive. Hospital food is complicated, but there are hospitals where they really think through these issues, have a love of food and organise it well—while in similar hospitals in the same city, of the same size, almost in the same catchment area, the food is simply appalling. I am sure that noble Lords will agree with me, and I know that the majority of people in this country find it unacceptable for hospital food to be unhealthy. However, much of the food served to patients is of a poor nutritional standard.
In 2012, a nutritional analysis of commonly served hospital meals showed that they often contain more saturated fat and salt than meals served at fast-food restaurants, including McDonald’s and Burger King. Hospital food which is high in fat, sugar and salt, is not helping to nourish patients, and much of it is wasted. Government figures suggest that as many as 50,000 people a year could be dying with malnutrition in NHS hospitals in England, and at least one in every 10 meals is thrown into the bin uneaten.
The British Association for Parenteral and Enteral Nutrition estimates that three out of four patients are not eating enough during their hospital stay, and that the majority of them lose weight while in hospital. This problem is particularly rife among elderly patients. Only today, the Campaign for Better Hospital Food published new data showing that hospitals in England spend more on nutritional supplements for patients than on the meals served to them during their stay. While of course I recognise that nutritional supplements are vital in the cases of some patients, should they have become the routine prescription given to patients who are unwilling to eat hospital meals, or failing to gain nourishment from them? Patients should be nourished with enjoyable food rather than by nutrient and vitamin pills administered as medicine.
We look forward to hearing later in this debate from my noble friend Lady Miller of Chilthorne Dormer, who has expertise in this area and chairs the All-Party Parliamentary Food and Health Forum, the noble Lord, Lord Rea, the previous chairman, and other noble Lords who have experience or knowledge of this issue. I suspect that my noble friend might be tempted to address in his reply the subject of foundation trusts in the context of mandatory standards for hospital food, which is the purpose of this Bill. Both Scotland and Wales now benefit from mandatory standards for hospital food.
The Government have given hospital trusts greater control over how they manage and care for patients and have given them the opportunity to influence the shape and direction of the NHS. That is absolutely right, and I strongly support it. However, it is no less important to have a safety net to ensure that the NHS does not fall below acceptable levels and that standards of care are regularly monitored and enforced. Standards are not goals; they do not restrict a hospital’s freedom. They provide basic levels of assurance for organisations commissioned to provide healthcare. So we are not setting a precedent; there is an abundance of standards already in place in the NHS, which reflects the important role that they play, including employment standards; care standards for patients with specific ailments, such as diabetes; and standards for financial auditing, to name but a few. Standards for hospital food should be no exception.
The Bill requires the Secretary of State to appoint a body of experts to draft hospital food standards and make it mandatory for all patient meals to meet those standards. The Care Quality Commission and the Chief Inspector of Hospitals will be required to check that the standards have been adopted and are met. If they are not, it gives the CQC power to act, ultimately by withdrawing a hospital’s registration. The CQC is working hard to increase the regularity and effectiveness of its monitoring exercises, and is ensuring that patients participate in them. The CQC already evaluates patient satisfaction with meals, so this Bill would require only that monitoring is carried out to assess adherence to more specific standards. This solution does not in any way necessitate burdensome regulation, and does not require the Government to take greater administrative control over the provision of hospital meals. In fact, patients themselves are likely to take a leading role in monitoring hospital food, as more and more of them sign up to join inspection teams, as encouraged by the Care Quality Commission’s new Chief Inspector of Hospitals, Professor Sir Mike Richards.
Finally, I address the issue of cost. At the moment, taxpayers are being doubly charged for poor hospital food. Not only are they paying for the cost of patient meals but they are funding the associated costs that bad hospital food incurs, such as food waste, malnutrition and longer recovery times. I frequently hear people say that good hospital food is expensive and costs too much for hospitals to afford, but the facts do not bear this out. It has been shown that there is no correlation between the cost of patient food and its popularity with patients. Many of those hospitals serving the best food, produced and prepared to very high standards, are actually paying less for it than are hospitals where patients are dissatisfied with what they are being served and where food is wasted. For example, according to data from NHS Estates, Ipswich Hospital NHS Trust spent an average of £13.59 on food for each patient per day in 2012, yet less than half of patients at the hospital surveyed by the Care Quality Commission rated the food as good. In contrast, the Royal Marsden NHS Foundation Trust in London spent £5 on food for each patient per day in the same period, and more than seven out of 10 patients surveyed by the Care Quality Commission described the food as good. So those public sector organisations that have set standards for their food have done so without incurring extra cost.
In 2010, the Department for Environment, Food and Rural Affairs carried out an extensive evaluation of the costs of introducing government buying standards for food served in central government, including prisons and government departments. The standards mandate was that organisations buy more organic food, more fresh fruit and vegetables, and sustainable fish. The evaluation concluded that the organisations would not pay more—and, indeed, they do not now pay more—for higher quality food. If patient meals contain high-quality ingredients and are cooked by highly skilled caterers, they are more popular with patients, more likely to be eaten and therefore less likely to be wasted.
In conclusion, this Bill has widespread support from the public and from 97 national organisations, including Age UK, the British Heart Foundation, the Hospital Caterers Association, the Royal College of Physicians and thousands of members of the public. I contend that hospital food standards must be made mandatory if all patient meals are to be of a sufficient high quality, are to be nutritious and made to minimum standards of production.
This is a modest but sensible Bill with widespread support, and I urge my fellow Peers, as well as my noble friend as the Minister responsible on behalf of the Government, to support it. I look forward to my noble friend’s sympathetic response. I beg to move.
Baroness Gibson of Market Rasen (Lab)
My Lords, first, I thank and congratulate the noble Baroness, Lady Cumberlege, on claiming this spot in a very busy parliamentary calendar to raise a subject that is very important to so many people. Her work in and knowledge of the National Health Service, its triumphs and drawbacks, make her the perfect person to raise the issue of hospital food. I am not an expert in this area, but I have over recent years been a patient.
People are taken into hospital at one of the most vulnerable times of their lives. They become patients in a second, and face the illness itself, the shock of hospitalisation, disorientation and the feeling of being alone to face sudden and apparently insurmountable problems. For many of us, it is a traumatic and frightening experience, even for those of us who are usually confident and sure of what we are about and how to react to what is happening around us. At such a time, we need comfort; food should be part of that comfort and something to look forward to—but, alas, too often it is not.
I am pleased to say that I have not spent much time in my life in hospital. I had been reasonably lucky with my health over the years until about three years ago, when I was diagnosed with leukaemia. For the first period of my illness, I had to remain in hospital in a room set aside from the main ward, because I was very vulnerable to germs and needed a sterile environment. The medical care that I received was second to none; I am still receiving it, and it is wonderful. The problem arose when I was confronted with what I can describe only as “food from hell”. I did not expect cordon bleu cookery, but I expected to eat nutritional food and some thought being given to which foods patients may fancy—especially as medicines can affect appetite and change taste buds.
The food in my hospital was brought in each day by the catering company employed and reheated on the premises. It looked, smelled and tasted awful. There was a choice of food, but not an appetising one. The soup was more water than soup powder; the main courses bore little resemblance to what they were supposed to be; and the sweets were just that—sickly sweet beyond belief. On one occasion, the Irish stew, as it was described, was so awful that, had I been Irish, I would have been tempted to sue the hospital on the grounds of the insult to the Irish nation. When I first went into hospital, there was a choice of cheese and biscuits, but it was quickly removed on the grounds of cost. There was no fresh fruit offered, and the vegetables were cooked to a uniform standard of what I can describe only as grey mush.
Since 1992, successive Governments have introduced more than 20 initiatives, which have all failed to improve hospital food in England, costing the taxpayer more than £54 million. Such initiatives have relied on hospitals to adopt voluntary food standards rather than such standards being mandatory. The result is that one in every 10 meals served to patients is returned to the kitchen uneaten. A BBC programme in 2008 that investigated the unhealthy state of hospital food revealed that £1 million worth of food each year is wasted.
Among eminent people who have attempted to improve hospital food have been Simon Rimmer, who sought to revamp food in Liverpool hospitals, and Jamie Oliver, the latter stating that the failure to provide the nutrients that could help the healing process seemed completely crazy to him. It does to me also.
The Soil Association has drawn public attention to the sorry state of hospital food, saying it was more likely to contribute to a disease service than a health service. This is a cause for national concern and yet it need not be so. This was proved when James Martin, a well known and respected TV chef, recorded a programme about Scarborough General Hospital, where he undertook to improve the food in both nutritional value and presentation. He first won over a very sceptical workforce in the hospital kitchens. He then explained and taught about nutritional requirements for vulnerable patients and, finally, produced menus that were practical and popular.
This Bill is not asking for the moon. Most food served in our public sector institutions has to meet mandatory standards, including that served in hospitals in Scotland and Wales. All the Bill asks for is the same standards in our English hospitals, together with a body of experts to specify hospital food standards, and the CQC to ensure compliance with those standards. I hope that the Minister agrees with that.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I start by paying tribute to my noble friend Lady Cumberlege not only for her excellent presentation of the Bill, but for all the work that she has done in preparing for today’s debate and in pursuing this matter over the years.
I also pay tribute to the Sustain organisation, which plays an important part in the Campaign for Better Hospital Food and has provided us with a lot of information and briefings. That organisation deals with every aspect of food from growing and procurement to sourcing local food. The campaign to make us healthier and keep us healthy through eating healthier food is one element of what that body does.
Amid all the gloom about the failure of voluntary initiatives in this area over decades, there are a few shining examples of good practice. I first came across one of them when I was a Somerset county councillor and the council was looking at food procurement. The Royal Cornwall Hospital took a very different approach by procuring its food locally, thereby ensuring that it was fresh and that it contributed to the local economy. It also commissioned a completely different approach to hospital kitchens by putting catering staff at the heart of making people better. As a result, the hospital’s food became much more appetising and the amount of waste went down. Food waste is still a tremendous issue. I think that that hub now supplies three other hospitals in Cornwall. It is an amazing example of what can be done when the will is there and the leadership of the hospital makes that effort. However, voluntary initiatives are not always sufficient, given that the Royal Cornwall Hospital initiative was introduced back in the early years of this century and if other hospitals had wanted to follow that example they would have done so by now. That is why I think the Bill is very important because unless we have mandatory standards nothing will happen. The Campaign for Better Hospital Food summarised the history of the past two decades as one in which every year a high-profile initiative is introduced by either a Minister or a celebrity chef, but one, two or three years later it bites the dust.
The people to whom I have spoken about the Bill have found it jaw dropping that there are no mandatory standards for hospital food. They find that incredible. As the noble Baroness, Lady Cumberlege, mentioned, I have the privilege of chairing the Food and Health Forum. Back in January 2012, we listened to presentations on this subject and I was struck by two points in particular. One of the presentations was given by members of the Royal College of Nursing, who forcefully made the point that hospital food contains too many harmful elements—salt, sugar and saturated fat have been mentioned in the debate—and far too few of the elements that provide good nutrition. For example, the noble Baroness, Lady Gibson, mentioned the lack of fresh fruit. We listened to another presentation from the charity Heart of Mersey, which seeks to combat heart disease. That charity has campaigned very hard to improve hospital food because diet is very much implicated in hospital admissions for people with heart disease. How on earth are they meant to get better if hospital food exacerbates their health problems?
Clause 3(b) of the Bill is very important. The Government may say that it is too onerous to impose requirements relating to good procurement and other issues. However, the clause asks only that account is taken of the food chain, animal welfare, fair trade and food waste. Those are all very important elements. The example of good practice I cited at the Royal Cornwall Hospital proves that these issues can be addressed.
The status of catering staff is a key issue. All too often they are seen as being at the bottom of the food chain, if noble Lords will excuse the pun. However, they play a key role in ensuring that patients recover. When I was talking to my husband about this debate, he reminded me that he is one of the closest living relatives of Florence Nightingale. She ensured that one of the key elements in her nursing regime was to give soldiers hot food every day instead of the old, putrid food they had received hitherto. That was a key element in improving the mortality rate in the relevant hospitals.
This small, modest Bill is absolutely key in this area. I hope that the Minister will welcome it as the efforts of medical staff are often undermined by the poor hospital food being given to their patients.
Lord Rea (Lab)
My Lords, not only the Members of your Lordships’ House but the whole country should be grateful to the noble Baroness for securing this debate.
For too long the topic of hospital food has been a running sore. It has a reputation for being of poor quality and indifferently served, as borne out so clearly by my noble friend Lady Gibson. Often too little help is given to those who have difficulty feeding themselves. This is not to say that nothing has been done about it. As all the previous speakers have said, a large number of initiatives have been launched over the years at considerable cost but with, by and large, disappointing results. Governments of both political persuasions have launched initiatives and guidelines but these have all been on a voluntary basis with no sanctions for non-compliance. Although there have been a number of successes where good standards have been reached, as has been mentioned, many more remain far from satisfactory. Many of us are grateful for the briefing provided by Alex Jackson of Sustain, co-ordinator of the Campaign for Better Hospital Food, which has been referred to. He has drawn up details of no fewer than 21 voluntary initiatives since 1992 which have come to nothing after initial fanfare, as the noble Baroness, Lady Miller, said.
At least four celebrity chefs have been called in to advise the Department of Health. Sadly, their hard work has not had a lasting effect. Albert Roux, for example—to continue the quotation given by the noble Baroness, Lady Cumberlege—said:
“If we have learned anything from the last 20 years it is that meetings, speeches and gimmicks do not work—what we need now is change to the whole hospital food system, starting with the introduction of food standards for every patient meal”.
This lack of progress is shameful when the results of a number of studies demonstrate that good nutrition has a beneficial effect on patients, thereby speeding recovery from infections and other diseases as well as from surgery.
Good, enjoyable food, as has been pointed out, boosts morale, which in itself has healing qualities. A surprisingly high proportion of NHS in-patients have some signs of malnutrition—around 40% by several estimates; an amazingly high number—which delays recovery and lengthens hospital admissions. There is evidence that this has improved little over the years. Good nutrition is likely to save the NHS a lot of money. A recent international study published in the Lancet has shown that faulty or inadequate nutrition plays a part in 40% of deaths world wide. That applies not only to the developing world but to our main problem—chronic, non-communicable disease, which is also very much diet-related.
Another important possible benefit from good nutrition in hospital is that it could act as an example of good practice, or a beacon—an overused word—demonstrating the principles and practice of providing a nutritionally sound diet. In other words, good nutrition could play an educational role in helping patients and their carers to improve their diet after they are discharged. This would be an appropriate task for any institution looking after the nation’s health.
Of course, providing for large numbers of patients in an average-sized hospital on a limited budget is not easy; the logistics of the operation can be formidable. Quality tends to be inversely proportional to the size of the hospital. However, there are examples of good systems in large units that work. Earlier this year I spent a week in UCLH having a knee-joint replacement, and it was clear that thought had been applied to the catering on offer. For one thing there was a choice of menu, although you had to decide on this a day in advance. The food was unexciting and rather too substantial for my post-operative appetite, but was of fairly good quality, courteously served and adequately hot, having been reheated on the ward. A healthcare assistant was on hand to help those with a problem feeding themselves. I am not too sure of the food’s nutritional credentials, however. I found that the halal choice was the most attractively presented and tasty, though a bit too spicy for a westerner. But the experience of friends and relatives in NHS hospitals has not been so good, as my noble friend Lady Gibson most graphically pointed out.
The ward kitchen has an important role. While it is mostly not used for the actual preparation of meals, it is important in their presentation to patients. Its role could perhaps be expanded to include the preparation of simple meals such as a boiled egg or piece of toast for those unable to eat the main meal provided. Perhaps ambulant patient should be able to use the kitchen, when convenient, with the help of their visitors, relatives and friends. They could make a cup of tea, for instance, when they felt like having one.
Sadly, poor nutritional standards are still to be found in some hospital food, as has been graphically pointed out. Recently, as the noble Baroness, Lady Cumberlege, mentioned, one hospital meal was found to have a higher fat and salt content than a Big Mac. As we all know, the diet of many people in England is far from optimal and contains too much sugar, saturated fat and salt, and too few of the vitamins and trace elements found in fresh vegetables, fruit, fish, lean meat and eggs. Dietary intake is more often than we realise too low in many older people. In hospital there is a captive audience, an ideal population on whom to demonstrate how well cooked good food can be attractive, delicious and not too expensive. The food will taste better and may have better nutrient value if it comes from sustainable sources with good animal welfare standards. I am glad that there is provision for that in the Bill.
Why have so many initiatives failed? My guess is that hospital food is of low priority on the agenda of hard-pressed managers who are often struggling to meet targets and stay within budgets. The effects of poor diet do not show up in most hospital statistics, whereas mortality rates or waiting times can easily be measured, and executives and clinicians held to account. The considerable benefit that good nutrition can have is not fully appreciated. Poor ward diets are often complacently tolerated by management because their quality and acceptability is often not monitored. The introduction of mandatory standards with strong sanctions for non-compliance would eliminate any complacency because the relevant manager would be held to account. As the noble Baroness, Lady Cumberlege, said, other public sector institutions and schools are now required to conform to and have adopted mandatory nutritional standards, as has the National Health Service in Wales and Scotland. Interestingly, Compass, probably the largest catering firm in the country, has said that it supports mandatory standards because they level the playing field among suppliers and caterers while maintaining a high standard.
I am puzzled as to why the Government have been so reluctant to adopt mandatory standards for hospital food. A response to Sustain’s hospital food standards campaign was published by the Department of Health in September this year. It does not directly give the reasons for the Government’s reluctance, given that mandatory standards have been widely adopted elsewhere in the public sector. However, I hope the noble Earl can report that the Government are coming round to the idea and will agree to support the Bill.
Before sitting down, I have one question for the noble Baroness, Lady Cumberlege. Clause 1(6) states that the Bill,
“applies to … food provided to patients at a hospital”.
Does this apply to a private hospital as well as an NHS one?
Baroness Masham of Ilton (CB)
My Lords, I thank the noble Baroness, Lady Cumberlege, for bringing to your Lordships’ House this Bill to:
“Make provision for the regulation of food standards in hospitals”.
I feel that the least solution is to have a minimum standard.
I must declare an interest. I have had to spend some time in hospital at various times and can say from first- hand experience that if it had not been for high-protein drinks and blood transfusions, I would have spent much longer recovering. The hospital was Stoke Mandeville; it gives excellent care but is let down by the food, which is so unappetising and tasteless that it is often discarded. I am not surprised that around 30 million hospital meals in England are not eaten each year.
On one occasion when I was doing my visit as a member of the board of visitors of a young offender institution, the inmates were complaining about the food, which happened to be a rather good-smelling macaroni cheese. I said to them, “You should spend a week in the hospital I have just been in and then you would have something to complain about”. There was silence.
This Bill is long overdue. There is a desperate need for regulation of food standards across the country as there is so much variation in hospitals. I am sure that your Lordships will agree with this statement:
“It is crucial that patients receive tasty, nutritious food as part of their care. Although the NHS is spending more on patient meals, there is still too much variation across the country”.
The Government say that the NHS should be a patient-centred health service. Accepting this Bill would help to demonstrate their sincerity and prove that it is not just a matter of words.
Katherine Murphy, chief executive of the Patients Association, of which I am a member, said that the huge disparity between low and high spending on food in hospitals could not be justified and that the best patient meals are often those that are freshly cooked in a hospital’s own kitchen. Patient meals cooked in this way are often also the cheapest to make because they give hospital cooks the option to find the best deals from local suppliers. I am told that the Royal Brompton Hospital falls into this category.
There should be flexibility in hospitals over the availability of food and the giving of medication. This is necessary for people with Parkinson’s disease, when medication should be taken before meals, and patients with diabetes, who should not go without food for long periods. Nurses should learn how important food is for the health of patients.
One of my nephews spent a month in Glenfield Hospital in Leicester after a heart operation and he praised the food. I have not heard such sentiments about the food at Stoke Mandeville Hospital. There, the patients’ food is pre-cooked in Wales and brought to the hospital, where it is reheated and served up to patients in an unappetising and tasteless state, which does nothing for their morale and recovery. An example of that concerns one of our spinal injury members who was very ill. A few days before he died, he telephoned a friend asking for some decent food which he could eat. His friend could not get there but arranged for one of the doctors, who was sympathetic, to bring him something he could eat and enjoy. I dedicate my contribution today to Stephen and all ill patients who need good, nourishing hospital food.
Yesterday, one of your Lordships told me about the time when his mother was in hospital. It was a teaching hospital here in London. When her food was brought in, it was put down and left, but she needed help to eat it. So concerned was her son that he arranged to come in at meal times so that he could help her, but some people do not have friends or relatives who can do this. On one occasion, my husband was in the local hospital, which had just changed over to a housekeeping service. The housekeepers brought the food to the patients. I told the housekeeper who brought my husband’s lunch that he had a problem with swallowing and I explained his condition. She was very interested and told me that nobody had ever told her anything. She wanted to help.
I am sure that the arrangements for feeding patients who need help should be much better organised. Kind, responsible people may be better than nurses, who very often seem too busy to help. There should be a foolproof system so that all patients get fed with care and compassion. Maybe there should be an amendment to the Bill in Committee so that there is a foolproof system for patients who need help with feeding and drinking.
I wish the Bill a speedy and successful journey through Parliament.
Lord Turnberg (Lab)
My Lords, I, too, am extremely grateful to the noble Baroness for bringing forward this Bill. There are many people out there who believe that she deserves a medal, and I would certainly subscribe to one for her for having introduced the Bill.
Ever since I started working as a young doctor in the NHS in the 1950s and 1960s, 50 or 60 years ago, hospital food has been something of a joke—a joke that is not particularly funny for patients, many of whom either refuse to eat it because it looks so unappetising or, having tasted it, can eat very little of it. No one who listened to my noble friend Lady Gibson and the noble Baroness, Lady Masham, could possibly doubt that. It is hardly surprising to find that many patients lose weight in hospital and that there is enormous waste as so much has to be thrown away. I fear that it is becoming pretty obvious that I, too, have read the excellent briefing that has been placed before us.
However, that is not for want of trying to improve matters. According to the report by the Campaign for Better Hospital Food entitled Twenty Years of Hospital Food Failure, there have been numerous government initiatives, over many years, urging hospitals to pay attention to the standards of their food. There have been no fewer than 21 different initiatives in 20 years, which is more than one a year and two for each of the 11 Secretaries of State for Health who have held office during that time.
Each of those initiatives has urged a voluntary improvement by hospital trusts but these seem to have fallen on deaf ears. We are just as bad as ever, according to reports from Age Concern and the Royal College of Nursing. And it is not just the appearance and attractiveness of meals that are wanting; the nutritional value is even more problematic. Insufficient fresh fruit, vegetables and fish, and too much fat and salt, as we have heard, are far too commonplace. It is hardly surprising that patients often rely on family and friends to bring in food for them, and this is all happening despite efforts to enlist the help of a number of celebrity chefs. Sending now for Jamie Oliver without some form of regulation or legislation will simply not work.
It is the case that fewer than half the meals are cooked on site and that only a minority are made from British produce. There is of course an additional problem which is not tackled in the Bill and that is the complaint made, in too many places, of either food and drink being placed out of the reach of infirm patients at the end of their beds where they can see it but not reach it, or perhaps the food is within their reach but they need help to cut it up and spoon it into their mouths. Age Concern found that over 40% of patients needing this sort of help actually got it. That problem has to be solved by better training and the culture change that we keep banging on about in this House.
So far as the Bill of the noble Baroness, Lady Cumberlege, is concerned, there seems little doubt that voluntary initiatives have not worked and that we desperately need something more. We need to mandate better food and catering, and it is clear that this will not cost any more. We also need a proper inspection system. It is interesting to note that food standards are mandated in prisons and schools but not in our hospitals. It is even more interesting that there are mandatory standards for hospitals in Scotland and Wales, and that much of the food offered in English hospitals would not meet their standards. We need also a robust inspection regime, although perhaps not too robust. Perhaps the CQC in its regular inspections could simply sit down to lunch or dinner with the patients and make an assessment. That should not impose too much bureaucracy. It might cause some nausea.
I am strongly in favour of the Bill. We have spent far too long on voluntary initiatives. They just do not work. We must do more to correct this dangerous and seemingly everlasting problem. As my friend, the noble Lord, Lord Willis, who I met when coming in this morning, said, “It is a no-brainer”.
Baroness Thornton (Lab)
My Lords, I thank the noble Baroness, Lady Cumberlege, for this comprehensive Private Member’s Bill and I commend all speakers in this knowledgeable debate. Clearly, despite many initiatives and endeavour over a long period of time—it has to be said that there has been some improvement in the quality and nutritional value of hospital food because of the focus of the previous Government and this—this Bill and this debate show that there is still a great need for improvement. The Library note about the Bill was immensely helpful, as was the publication, Twenty Years of Hospital Food Failure, in February 2013 by the campaign group Sustain, an alliance of organisations. It outlined government hospital food initiatives since 1992. As my noble friend Lord Turnberg mentioned, an enormous number of initiatives have been taken.
I read with interest the Government’s guarded response to that report. The report said that,
“public spending on government voluntary initiatives has failed”,
and called on the Government to set mandatory health and sustainability standards for hospital food in England. The Department of Health issued a response to Sustain’s hospital food standards campaign, which states:
“The government’s preferred approach remains to encourage the adoption of Food GBS”—
government buying standards—
“within the NHS through incentives, signposting and assessments”.
That does not sound to me to be consistent with the noble Baroness’s Private Member’s Bill and the tone of this debate.
I volunteered to speak on this issue, partly because when I was appointed to a ministerial job in January 2008 as the health Whip, my first question in your Lordships’ House concerned nourishment and nutrition in hospitals. I can still recall my nervousness at the time but the House was kind to their new Front-Bencher and I survived. We all know that the noble Baroness, Lady Knight, is very concerned with these issues and she asked the Government:
“How they will respond to the recent reports about the levels of malnourishment of patients in NHS hospitals”.
At the time, I spoke about the fact that the then Government had published in October 2007 Improving Nutritional Care: A Joint Action Plan to outline how nutritional care and hydration should be improved in NHS hospitals and had introduced protected mealtimes and focused on nutritional screening. I concluded:
“There are three strong mechanisms for assessing the quality of food and nutritional care: the Healthcare Commission’s annual health check, in-patient services, and the annual Patient Environment Action Team inspections. These show how seriously the Government are taking the issue”.—[Official Report, 30/1/08; col. 619.]
I wonder whether the Minister is about to say something along the same lines in his response to this debate.
I was very struck by the huge list of initiatives over 20 years that have tried to raise the standards and quality of hospital food. My noble friend Lady Gibson told us a sorry and miserable story. Her example of Scarborough Hospital was most heart-warming. Recently, I met the head of catering for a hospital who explained to me how it produces high-quality meals, how it uses hotel nutritional and food standards, how much of its food is locally sourced and how much as it could possibly manage was freshly prepared.
My noble friend Lord Rea spoke about changing the whole hospital food system and he is right. We know that those beacons of good practice exist and that it is entirely possible to achieve a satisfactory outcome for patients and their families. My most recent experience of hospital food was when my daughter had a short stay following the birth of our first grandchild. I suppose that, because there are lots of relatives on maternity wards who bring food, cakes and all sorts of things, there might not be quite the same problem. However, I was very impressed by two things. First, there was access to the kitchen on the ward for patients and their families to make toast, warm drinks and so on. Secondly, the food was very plentiful and nourishing, and a lot of fruit was available. I am referring to a very large London teaching hospital. If large teaching hospitals can achieve that, I cannot see why any other hospital cannot do so.
My noble friend Lord Turnberg pointed to the problem of the voluntary approach so far. We know that voluntary approaches can work but they will work only if management and hospitals have the will to make them work. The issue that we face with this Private Member’s Bill is whether we have reached the end of the road of the voluntary approach on this matter.
I can understand why the noble Baroness exempts outlets in hospitals that sell food, including cafes, shops and such like. I wonder whether we might find ourselves in a similar position to that of Jamie Oliver when he introduced nutritional standards to school meals and stopped children from going out to buy their lunches. We then saw parents pushing burgers and pizzas through the railings of the school.
I have a serious question to ask the noble Baroness, Lady Cumberlege, and the Minister. Is this Private Member’s Bill and its proposal consistent with this Government’s resistance to statutory regulation, the setting of standards and the administration and monitoring of those standards in other areas of the NHS? I draw the attention of the noble Baroness and the Minister to the Government’s resistance to statutory regulation of healthcare assistants, which we believe would have a beneficial effect for patient care in the NHS. Will they explore the consistency of their arguments in this matter?
Finally, why is this Private Member’s Bill about only hospitals? Why is it not inclusive of the other areas, such as care homes, under the aegis of the CQC? I ask that question particularly given the campaigns of organisations such as Age UK on the nourishment of older people, people with mental health problems and such like in places of residential care.
On these Benches, we welcome the Bill. We believe that we have to keep pushing on this issue until we have it cracked and sorted. I hope that the noble Baroness will have some words of encouragement from the Minister in his response to her Private Member’s Bill.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin by congratulating my noble friend on securing the introduction of this Bill, which seeks to set standards for healthy and sustainable food in hospitals. The Government warmly welcome the role that my noble friend’s Bill has played in bringing this important issue to the attention of your Lordships’ House. Few subjects matter more than food and drink. Poor diet can cause serious illness and even increase the risk of early death. My noble friend has a supporter here when she talks about high standards. We both want nutritious food that meets the recovery needs of patients and the health needs of staff and visitors, and sustainable food that supports our farmers and accounts for the needs of our livestock. Above all, we want tasty food that that looks good and is available whenever it is needed. My noble friend and I are at one on this.
We agree that more needs to be done to be certain that hospitals comply with high standards. We are proposing a series of measures that include instruction, incentives and inspection—the three Is. These build on the work announced last year by my right honourable friend the Secretary of State for Health and will raise awareness and increase transparency so that there can be no excuse for poor food.
The cornerstone of this approach will be our hospital food standards panel, under the chairmanship of Dianne Jeffrey, chairman of Age UK. The panel, which I can tell my noble friend Lady Miller includes Sustain as well as patient representatives and others, will start with the needs of patients, especially older people. It will look at nutritional quality, mealtime experience and the help given to patients to eat. It will check the evidence on food production systems to understand how a meal can leave the kitchen as an attractive, tasty dish, but arrive at the patient cold and unappetising. Noble Lords who share my own frustration when struggling with a sachet of sauce or pat of butter, will be pleased to hear that the panel will not let such small details escape its scrutiny.
The panel will also consider sustainability. This year, around 80% of food commodities purchased through NHS Supply Chain will be UK-produced, but the panel will look at how we can further reduce our environmental impact, including waste from food and food packaging. The panel will also consider animal welfare.
In this way, we address my noble friend’s main concerns. However, our ambitions go further. We have asked Dianne Jeffrey to consider food served to staff and visitors, including food sold in vending machines. Noble Lords may be surprised to learn that less than half of the food served in hospital is eaten by patients. The majority goes to staff and visitors. We must not neglect their needs.
We have a serious obesity problem in this country and so have a responsibility to help people make healthier choices. That does not have to mean banning chips and fizzy drinks, but should certainly mean delivering healthier options to make it easier for people to choose healthily as well as simple to understand information and labelling on food—using the calorie labelling and front-of-pack schemes increasingly evident on our high street and in supermarkets.
This is not about undermining personal autonomy. What freedom exists in choosing between two meals if both are high in saturated fats and salt? Where is the freedom in choosing between a standard chocolate bar and a king-sized one? We are asking the panel to examine how the NHS can increase choice, not reduce it, and enable informed choice.
Twenty-one trusts have committed to measures for encouraging healthier restaurants, vending outlets and buffets under the responsibility deal’s pledge on healthier staff restaurants. We want more to do the same. How will we make all these things happen? Like my noble friend, we have been frustrated to see continued variation in food standards across our NHS. That is not because hospitals do not know what good food looks and tastes like. Good guidance and standards already exist, and the best hospitals are using them. For instance, government buying standards for food and catering were introduced in 2011, covering nutrition, sustainability and animal welfare. We have the British Dietetic Association’s guidance on nutritional content of patient meals, and we have our own guidance on healthy eating. So rather than produce new standards or guidance, our panel will identify which existing guidance should apply as a matter of routine, which should be aspired to as best practice and which should be left for local determination.
Standards are important but compulsion, in our view, is not. There is no evidence that making standards mandatory in Scotland or Wales has led to food that is any better than in England. Indeed, patient satisfaction ratings with hospital food in Scotland have actually gone down in recent years. Nor should standards relate to whether food is prepared in-house or not. Each NHS provider must decide for itself how to deliver its food services. What matters is not who provides the meals or how but that they are of high quality and meet the needs of patients. We are unaware of any clear relationship between the quality of food and whether it is cooked on-site or delivered frozen or chilled and regenerated. I agreed with the noble Lord, Lord Rea, on that point. There are many ways to produce food in hospitals. All can deliver good food.
We are determined to make sure that this happens. However, this Government have committed to creating new regulation only as a last resort, as the noble Baroness, Lady Thornton, observed. Because of that, we have identified other, highly transparent ways of delivering the change that my noble friend wants to see. Of course, legislation has a role. All healthcare organisations must register with the Care Quality Commission, whose powers are enshrined in law. The department is updating the CQC’s registration requirements to include new fundamental standards of care that all providers have to meet, and the CQC is developing compliance guidance. We will ensure that the work of the panel aligns with that.
Crucially, we have asked NHS England to amend the NHS standard contract so that it helps to deliver improvement. In the new contract, due out next month, hospitals will be required to have regard to guidance on the provision of catering services, including government buying standards for food and catering. We will work with NHS England to ensure that the panel’s work is appropriately highlighted in later contracts and technical guidance. Commissioners of NHS-funded services have the power to require remedial action to be taken where there is clear evidence that providers are failing to meet the terms of the standard NHS contract.
There are also incentives for excellence. Under the system of commissioning for quality and innovation, which we call CQUIN, commissioners can reward providers for delivering high food standards. For instance, providers might be rewarded for improving food quality, or meeting external standards such as those of the Soil Association’s Food for Life Partnership.
My noble friend also calls for a new inspection regime. We can respond to her call in the following way. The CQC has appointed Professor Sir Mike Richards as Chief Inspector of Hospitals and he is establishing a robust system of registration, regulation and inspection. The programme is not a rigid one-size-fits-all process, but a more measured, risk-based approach. This requirement has all the power of the Health and Social Care Act 2008—we do not need further legislation.
The Care Quality Commission has pledged to start rating NHS acute trusts and foundation trusts from December this year and aims to complete this process before the end of 2015. It will introduce a more specialised inspection model with a greater focus on culture and leadership and teams that include clinical and other experts and people with experience of care. It will use information and evidence in a more focused and open way, including listening better to people’s views and experiences of care in order to predict and respond more quickly to services that are falling short.
However, we need strong monitoring. We now review the food served in every single NHS hospital via annual patient-led assessments of the care environment —we call them PLACE inspections. This year, a small army of more than 5,000 patient assessors, including a patient who is a member of our panel, took part in PLACE assessments, including tasting the food on offer. If the vegetables were overcooked, or the gravy was cold, they reported it. If the custard was lumpy or the sandwiches dry, they reported that too. Their feedback directly helps hospitals to improve. As my noble friend said, there is no evidence of a direct link between cost and the quality of food. We are looking further into this to see if we can establish any link. Our PLACE inspections have given us detailed information directly from patients, which will help us understand how good food can best be produced without wasting money.
We also use PLACE to record whether hospitals comply with recommended guidance. We already ask about the government buying standard for food, and next year we will ask about the Soil Association’s Food for Life catering marks. Once the panel has reported, we will include a question about other recommended standards. Commissioners and providers together can use this information to improve services.
We know that this approach can work. In 2011, government buying standards for food and catering services were launched. They were compulsory for central government departments, but voluntary within the NHS. Yet already around half of all hospitals comply, with another quarter pursuing compliance. My colleagues at Defra are reviewing these standards, and members of the panel are involved in that.
My noble friend also asked for action where hospitals fail to comply with standards. The CQC already has these powers and can take action through civil enforcement or under the criminal law. As I said, commissioners can also act where the standard contract terms are breached by requiring providers to take remedial action and, in the case of serious failures, they can escalate that action. However, it is not just about punishment. What my noble friend wants, quite rightly, is improvement. Our approach is designed to achieve this, which is why PLACE requires hospitals to publish an action plan to show how they will address any problems. This has already started. In Sheffield, hospitals already score well on food but plan to increase menu choice with a £7 million capital development of their catering infrastructure. East Lancashire Hospitals NHS Trust plans to review ordering systems and improve service delivery by opening a second food production belt. It is also reviewing its vending machines. These are tangible improvements, identified by patients and planned and delivered locally. They are evidence of success.
The noble Lord, Lord Turnberg, spoke about the sourcing of food, a subject I mentioned a moment ago. He may like to know that some 60% of the food ingredients supplied to the NHS is procured under contracts negotiated at a national level by the NHS Supply Chain. It requires suppliers to provide information on product quality and provenance and to have a verification process in place. It is working with its contracted food suppliers to identify products that meet the food GBS and make the information available through its website. However, it is important to remember that, under public sector procurement rules, the NHS cannot promote or appear to promote a buy-British policy.
My noble friend Lady Cumberlege referred to the use and cost of nutritional supplements. It is always better if patients can get the nutrients they need from proper food rather than supplements—there is no argument about that—but some patients cannot digest normal food, or need extra calories, and they need supplements. The cost of £320 million that noble Lords may have read about is actually related to spend in the community, not in hospitals. It also includes the provision of real food such as gluten-free bread or low-protein biscuits. I would not want noble Lords to be misled by any press reports they may have seen on that score.
Malnutrition has many causes, a theme that was taken up to the noble Lord, Lord Rea, but it is most often seen in conjunction with other illnesses. The British Association for Parenteral and Enteral Nutrition estimated the cost in 2007 at more than £13 billion, but it did acknowledge that some of these costs may be unavoidable. This is because serious illness and injury will always result in loss of appetite associated with changes in the body’s metabolism, which in turn results in tissue breakdown and muscle loss. These costs are linked to malnutrition rather than being direct costs, so they cannot be assumed to translate into potential savings in the cost of care.
The noble Lord, Lord Rea, and my noble friend Lady Cumberlege referred to unhealthy foods being served to patients, such as foods that are high in fat and salt. The best food does no good if it is uneaten. For very ill patients who cannot eat large amounts, it may be better for them to eat high-calorie, higher-fat food. Our panel will work hard to strike the right balance between long-term health needs and the short-term requirement for high-calorie food. The noble Baroness, Lady Masham, and the noble Lord, Lord Turnberg, referred to the problem we hear about so often of food being left out of reach and patients not being given the help they need. It is unacceptable for food to be left out of reach. Where a patient is at risk of malnutrition, specific plans of care are introduced such as serving food on a red tray, which signals to the team that extra support is required. We support the notion of protected mealtimes whereby all non-essential clinical practices are avoided during those periods. Family members and volunteers who have had additional training are often invited to help patients with their meals.
Success is what we want. This Government want food that boosts health and recovery, that tastes good and impacts lightly on our environment. Our approach rests on what I referred to earlier as the three Is: instruction, incentives and inspection. Instruction is provided through registration standards and the NHS standard contract, incentives via the CQUIN scheme and inspection by PLACE and the CQC. These, we believe, are the way to success.
Baroness Cumberlege
My Lords, I thank my noble friend Lord Howe for his comprehensive reply. What the Government are doing is extremely encouraging, but I am still not convinced that all this voluntary work and the emphasis on guidelines will achieve what we want. We will need to press for some mandatory standards. I want briefly to comment on some of the very knowledgeable contributions that have been made by noble Lords.
The noble Baroness, Lady Gibson of Market Rasen, started by saying that she is not an expert, but in her contribution she showed real clarity about her expertise as an expert patient. There is nothing more compelling than personal testimony. She did say that this is not asking for the moon, and I agree with that. It is a simple Bill and, indeed, a modest one.
It has been clear throughout the debate that noble Lords have been diligent about reading their briefing, and pretty well everyone described the 21 initiatives that Governments have put in place over 20 years as being extraordinary. In no way do I underestimate the concern and commitment of successive Governments, and we have heard about that again today. All Governments want to improve hospital food, but it is a question of how that is done: how do we make it happen? We know that the NHS is very good on policy, on discussions and on—what do they say?—paralysis by analysis, but it is the implementation that it is weak on, and that is what particularly concerns me about hospital food. I have a quote from one of those years: “It is good food, not fine words, that keeps me alive”.
My noble friend Lady Miller and the noble Baroness, Lady Thornton, gave us some shining examples of the good food being produced in hospitals. I am pleased to see that because it is very good for patients, and I would bet that it raises the morale of the staff as well. The Royal Cornwall Hospital was highlighted. I have not had time to visit that hospital, but I know that my noble friend Lady Jolly speaks of it often. I understand also that the Royal Brompton Hospital and others are good. However, my noble friend Lady Miller said that what really makes a difference within a hospital is the will to do well and good leadership; that is very important. Today, I am asking the Government for a bit of strong will and the leadership to bring in this legislation.
Catering staff are, of course, key to this. One of the things I have noticed when visiting hospitals is that different institutions approach this differently. That is great and I am all for them using their initiative and seeking their own ways of doing things. Some places have integrated nursing and catering staff, while in others there are dedicated catering staff who have an absolute love of food, and you can see the difference. There are merits in each of the different ways of approaching this, and that is right. Having talked to nurses and to catering staff, I am interested in the following question: where are the doctors? I am delighted that the doctors are here today and I thank them both, the noble Lords, Lord Rea and Lord Turnberg, for their contributions.
It is very interesting to look at the obesity plan that the Royal College of Physicians has produced; hospital food does not seem to enter into it. Bariatric surgery does, and the need for more nurses to be trained in bariatric surgery—all those things—but surely doctors should be looking much more closely at the whole condition of their patients, what they are receiving and how they are getting better.
The noble Lord, Lord Rea, said that sanctions are missing and the lack of progress has been shameful—I so agree. This is an opportunity to improve, as he was saying, not only the quantity and quality of food in hospitals but the education so that people can better understand food in general. I was asked whether the Bill includes private hospitals. No, it does not; it applies to the NHS.
I thank the noble Baroness, Lady Masham, very much. I know that Stoke Mandeville is seared on her heart. I am very pleased that I have escaped on my visits there but she certainly told us a great deal about how disappointing the food is. I was interested in what she said about having kitchens on the wards and in hospitals generally, and not food brought from Wales. The noble Lord, Lord Turnberg, also made that point.
There is a very nice quote from Elizabeth David, that great pioneer of good cooking:
“Good food is always a trouble and its preparation should be regarded as a labour of love”.
When the food is produced on an assembly line in Wales, frozen and then reheated on the ward, how can the people who are producing that food love it? They never see a patient. Whereas if hospitals have their own kitchens, you see chefs going round and asking the patients what they like, what they do not want, what size of portion they want—all the rest of it. That is the labour of love.
I was very distressed to hear the noble Lord, Lord Turnberg, say that many patients lose weight in hospital. He also went on to say that celebrity chefs are not the answer. I agree: that is another thing we have tried and tried and it does not work.
I was interested to think about how patients can use their power to improve hospital food. We have tried and tried. Age UK tried the “Hungry to be Heard” campaign, which was all about food in hospital. As nothing happened, it revamped it as “Still Hungry to be Heard”. I really do not think that across the country the food has improved that much, despite some of the good examples we have been given. It is interesting that two-thirds of staff would not eat the food given to patients. That says everything, as far as I am concerned.
I thank the noble Baroness, Lady Thornton, for volunteering for this debate. I had no idea she had such a long-standing interest in this subject. Her contribution was outstanding. I agree with her: I am afraid we have reached the end of the road on volunteering and now we need to really grip this subject. She asked me about the consistency of government policy. I fear it is not consistent and I fear that will be our struggle. I am trying to think of other ways in which we can perhaps introduce something if this Bill does not get through the House of Commons. The noble Baroness also mentioned care homes. I was very conscious that in the NHS you really need to focus on the subject to get it done and I thought that if we went much more widely, we would certainly fail.
Finally, I am delighted that I and my noble friend the Minister are at one in that we want to support high standards and we agree that more needs to be done. The Government are certainly not inactive and I have been impressed by the response he has given us today, starting with this new panel he has set up. It has a huge task ahead. He highlighted the remit of the panel and what it will do. It looks very ambitious. I hope it succeeds. When will it report? How can we monitor progress? We need to see that this is not the 22nd initiative that the Government have produced in 20 years. We really want it to succeed.
On the question of staff and visitor food, I appreciate that less than half the food in hospital is served to patients: it goes to visitors and staff. I visited a hospital and asked to see the kitchens. They said, “Why do you want to see the kitchens? The food is brought in from miles away”. I said, “I still want to see how you are going to regenerate it”. As I went into the kitchen area, I met two chefs. One chef was cooking for private patients. I thought, “That’s fine, they’re paying for it; fair enough”. The other chef was cooking for the staff. I went into the staff restaurant, which was superb. You could have chosen anything; the food looked lovely. Then I tasted the hospital food given to patients—I say no more.
It has been a very interesting debate. Again, I thank my noble friend for his summing up. I understand that there are a lot of initiatives; it is how they work in practice that concerns me. I will certainly keep an eye on this Bill. I am not totally persuaded. I want to continue. I commend the Bill to the House.
Age of Criminal Responsibility Bill [HL]
Lord Dholakia (LD)
My Lords, my Bill is designed to raise this country’s unusually low age of criminal responsibility from 10 to 12. At present, in England and Wales, children are deemed to be criminally responsible from the age of 10. That means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”—that includes serious violent and sexual crimes but can also include burglary—can be tried in the Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the adult Crown Court.
At 10 years old, the age of criminal responsibility in England, Wales and Northern Ireland is the lowest in Europe. In Ireland, in 2006, the age was raised to 12 with exceptions for homicide, rape or aggravated sexual assault. In Scotland, in 2010, legislation provided that children cannot be prosecuted below the age of 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In France, Greece and Poland, it is 13. In Germany, Spain and Italy, Austria, Belgium, Hungary, Bulgaria and Romania, it is 14. In the rest of Europe, it ranges between 14 and 18.
The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997, the committee said:
“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level”.
I do not wish to be misunderstood on this point. Of course, taking 10 or 11 year-olds out of the criminal justice system would not mean doing nothing with children who offend. It would mean doing what other countries do with 10 and 11 year-old offenders. It would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of those children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, that can mean long-term detention in secure accommodation, but that would be arranged as part of care proceedings, rather than as a custodial punishment imposed in criminal proceedings.
Those who oppose increasing the age of criminal responsibility often argue that children of 10 and 11 are capable of telling right from wrong, as though it automatically follows that they should be dealt with in criminal courts. That does not logically follow at all. Most six year-olds have a sense of right and wrong, but no one suggests that they should be subject to criminal proceedings or prosecution.
The point was made very well in 2012 in a report by the Centre for Social Justice, which was set up by my right honourable friend the Secretary of State for Work and Pensions, Iain Duncan Smith. The centre produced a report on the youth justice system in 2012 entitled Rules of Engagement: Changing the Heart of Youth Justice. It states:
“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process and this raises the question of whether the current minimum age of criminal responsibility, at ten, is appropriate”.
The evidence from international research is overwhelming. Anyone who has sat in youth justice courts or family courts and knows that it is clearly demonstrated. It shows that children of 10 and 11 have less ability to think through the consequences of their actions, less ability to empathise with other people’s feelings and less ability to control impulsive behaviour. That does not mean that children aged 10 or 11 have no responsibility for their actions—that is not what I am trying to say—but on any reasonable interpretation of the evidence, they must be regarded as less responsible than an older adolescent or an adult.
It cannot be right to deal with such young children in a criminal process based on ideas of culpability which assume a capacity for mature, adult-like decision-making. There is no other area of law—whether it is the age for buying a pet, the age for paid employment, the age of consent to sexual activity or the age for smoking and drinking—where we regard children is fully competent to take informed decisions until later in adolescence. The age of criminal responsibility is an anomalous exception. Ironically, a 30 year-old who had a mental age of a 10 year-old child would probably be regarded as unfit to plead and yet, by some twisted freak of logic, a child of 10 is seen as capable of participating in the criminal justice process. How absurd.
It is sometimes argued that there is no need to raise the age of criminal responsibility because the number of 10 and 11 year-olds who receive youth justice disposal is small—we are given the figure of about 2,000 a year, a very small number. Even though this represents a small proportion of those going through the criminal justice system, however, what happens to 2,000 vulnerable children can hardly be regarded as a matter of little importance. The fact that the numbers involved are relatively small is in fact a strong argument for the Bill; it means that it will not be a huge burden in terms of resources to make alternative provision through welfare interventions and, where necessary, family court proceedings for the children who would otherwise have been charged and prosecuted.
Nor can it be argued that dealing with these children through non-criminal processes would put the public at risk. On the contrary, dealing with 10 and 11 year-old children through non-criminal procedures would be more effective than using the criminal justice process. The evidence shows that children who are dealt with through the criminal justice process are more likely to reoffend than those who are diverted from the criminal justice system and dealt with in other ways. Children who are officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends. As the Centre for Social Justice report put it,
“raising the minimum age of criminal responsibility would achieve important changes. Young children would not be tarred with the stigmatising ‘offender’ label which the evidence shows can exacerbate delinquency and would more likely have their victim status and welfare needs addressed, which the evidence suggests are currently often neglected”.
This is a particularly important point, as children who go through the criminal process at a young age are often young people from chaotic, dysfunctional and traumatic backgrounds involving some combination of poor parenting, physical or sexual abuse, conflict within families, substance abuse or mental health problems. The prospects for diverting the child from offending will be far better if these problems are tackled through welfare interventions than by imposing punishments in a criminal court. A welfare approach would avoid unnecessarily giving children a criminal record, which can make it harder for them to gain employment when they reach working age. As unemployment increases the chances of reoffending, this is another way in which criminalising children can increase rather than reduce the likelihood of future crime.
Of the 10 and 11 year-olds who are charged and prosecuted each year, the number who receive a custodial sentence is normally in single figures. However, although the number of serious child offenders is small, the public will of course want to be assured that raising the age of criminal responsibility will not increase the risk from these young people.
Some people who generally support raising the age of criminal responsibility argue that an exception should be made for the most extreme cases, such as homicide or serious sexual offences. I am willing to consider this point in Committee but at this stage my inclination is to resist making any changes or exceptions. The most serious child offenders invariably have the most complex welfare needs. Their backgrounds include experiences of serious physical abuse, sexual abuse, emotional abuse and neglect, parental mental illness, rejection and abandonment by adults, traumatic loss, conduct disorder and serious emotional disturbance. They need a welfare-based approach, in secure care if necessary, to help them to face their unresolved trauma, to develop and mature emotionally, to reach an appropriate sense of guilt and to learn to control their emotional and aggressive impulses.
Noble Lords will recall the trial of the boys who killed James Bulger, who were aged 10 at the time of the killing and 11 when they were tried. Most foreign commentators were amazed that children of that age should be dealt with by a trial in an adult Crown Court. They questioned whether such young children could really understand the complexities of a lengthy criminal prosecution and trial, whether they should have appeared in the full glare of media coverage, whether they understood all the issues and language of the trial, whether they could give sensible instructions to their lawyers and whether their decision not to give evidence was simply because they were frightened of speaking in such a setting.
Exposing such youngsters to a criminal trial is no way to achieve justice. Moreover, the case took nine months to come to trial, during which time the defendants received no treatment or therapeutic help in case it prejudiced their pleas. That is a completely unacceptable way to deal with young defendants and one that would be unthinkable anywhere else in Europe. It should be equally unthinkable here. The two boys should have been dealt with in family proceedings and detained in secure accommodation, without all the ill effects that resulted from a public Crown Court trial. I repeat that I am prepared to consider the possibility of exceptions in Committee, but the House will understand the reasons why at present I am inclined to the view that there should be no exceptions.
I commend the Bill to the House. The simple proposition that it contains, if enacted, would be an important step towards dealing with vulnerable, difficult and disturbed children in a way that befitted our civilised society. I beg to move.
The Earl of Listowel (CB)
My Lords, I am most grateful to the noble Lord, Lord Dholakia, for introducing this Bill and for his long advocacy on this issue. I declare an interest as a trustee of the Michael Sieff Foundation, a child welfare charity.
I noted what the noble Lord said about the evidence base. Dr Eileen Vizard, the eminent child psychiatrist, and Professor Sue Bailey, the current president of the Royal College of Psychiatrists, produced a paper on the age of criminal responsibility for the royal college which made very clear that the evidence shows that the current age for criminal responsibility is too low.
As treasurer of the All-Party Parliamentary Group on Children, I highlight that in its recent report, the group recommended that the age of criminal responsibility should be raised. In what I say, I will draw on my experience as vice-chair of the All-Party Parliamentary Group on Looked after Children and Care Leavers. I reinforce what the noble Lord said: these children are often the most damaged, the most traumatised and the most abused in our society, as well often the most troubling and destructive.
I strongly support the Bill. The current age reflects a lack of confidence in parenting in this country. Parents who lack confidence are often harsh and overly punitive towards their children. The current age is counterproductive and unkind to often our most vulnerable children. These children are often already overwhelmed by feelings of guilt. For the state to reinforce those feelings of guilt in young children is unhelpful and unkind. It is most encouraging that recently there have been indicators that we are becoming more confident parents. This Government have sustained the increasing reduction in the incarceration of children. There has been a very impressive drop in the number of children locked up in recent years. There has been a clear consensus that too many of our children were being locked up. Furthermore, the right honourable Iain Duncan Smith MP and Graham Allen MP have driven forward a much increased awareness of the importance of early years and attachment to their parents in young children and infants. Andrea Leadsom MP and Frank Field MP have led a cross-party campaign to increase support during pregnancy and in the months after birth to help build strong family bonds. Her Majesty’s Government have charged Louise Casey to meet the needs of trouble families, and the results have been very successful. I feel that we are becoming more confident about our ability to parent our children.
I shall remind noble Lords of who these children are. They are likely to be from working class families and to be growing up without a father in the household. They are quite likely to experience local authority care, to have a parent addicted to alcohol or drugs and are probably going to join a gang, if they have not done so already. They are more likely to be black than white, and it is probable that they have witnessed domestic violence. Looking at these children, it is hard for me not to think that this is a case of seeing the mote in the other’s eye and missing the beam in our own.
It seems that the worse a nation is at caring for its children, the lower the age of criminal responsibility. For instance, among the countries with the highest rates of absent fathers are the United States and the United Kingdom. Two-thirds of black boys in the US are growing up without a father in the household and, according to the OECD, we have an even higher rate of children growing up in lone-parent households than the US. We also have a low age of criminal responsibility compared with most of our neighbours. As the noble Lord said, ours is 10, and in the United States the age in most states is seven. Looking at the better performers, Denmark has an age of criminal responsibility of 15, and Germany of 14. Both are also among the countries with the lowest percentage of lone-parent families.
I remind noble Lords of the experience of the corporate parent. Does the same pattern hold true? Are poorer corporate parents more punitive? I am thinking particularly of local authorities caring for children in care. There has been much concern over the care of children in our children’s homes. I pay tribute to the Government for their focus on improvement here. I pay particular tribute to the previous Children’s Minister, Tim Loughton MP, and the current Children’s Minister, Edward Timpson MP. They are doing a good job for these children. However, they start from a low base.
Dr Claire Cameron and others based at the Thomas Coram Research Unit at the Institute of Education conducted comparative research on children’s homes internationally. They found that 90% of staff in Danish homes had a relevant graduate qualification; that 50% of staff in German homes had such a qualification; and that only 30% of staff in English homes have that qualification. Yet the children in our English homes have much higher levels of need that those in both Germany and Denmark, because they use residential care more widely there; it is only the most vulnerable children who end up in children’s homes. I hope that that information is indicative of the problem of those countries that are less confident in their parenting tending to criminalise younger children.
I ask the Minister a side question. The Association of Chief Police Officers produced a draft protocol on the kind of circumstances in children’s homes when police would be obliged to report a crime; there is a long-standing concern about the criminalisation of children in children’s homes here. That draft protocol has been sitting in a government department for some months now. I would be grateful if the Minister could look at what has happened to that. We do not wish children in children’s homes to be criminalised unnecessarily, and this would help. I have recently tabled a Question for Written Answer on this.
Why is it unhelpful to have such a low age of criminal responsibility? What does it matter that so few children are being placed in custody now that the Government have done welcome work to reduce custody use? Part of the reason it is harmful is that it reinforces the sense of guilt that these children have. For instance, many of these children will not have a father in their families. They may well feel responsible for the loss of their father. I heard yesterday of one of these children’s parents having committed suicide. The question the children were asking was, “What did we do wrong? How did we cause this?”. In my own experience, I had a dearly loved housemaster at school who had to move on to a new job. I remember wondering what wrong I had done to drive him away. It is plain from my experience of looked-after young people that many of them carry a heavy sense of guilt for things for which they were never responsible. When one listens to adults who have been through such experiences, they often have a sort of internal monologue by which they are told, “You are worthless. You can never do anything right”. If they do something well they will find fault with it because they have a deep sense of guilt, perhaps because if a parent does not love a child for whatever reason, the child will not think, “Well, the poor old parent is addicted so they cannot be around for me”. They will think, “There is something deeply wrong with me that causes my parent not to love me”. It is deeply unhelpful to reinforce children’s sense of guilt at such a young age.
Of course, the younger children are when they get caught up in the criminal justice system, the more likely they are to reoffend. I visited Feltham young offender institution some time ago and met a young man who was in for the third time. We do not want to perpetuate that.
I am sorry to have spoken for so long. In closing, I bring your Lordships’ attention to a recent visit to Parliament by a police officer, Police Constable Storey. He was one of a number of officers attached to schools. There is a programme of this kind. He told the All-Party Parliamentary Group for Children of his experience. His wife said that he really must take the job working in a school. She said, “You’ll be a natural for this”. We heard from the deputy head who said, “In the few months that this police officer has been in the school, he has turned around some of our children and he has helped teachers who were despairing of their relationships with some young people to mend those relationships. He has made a huge difference in just a few months”. Two of the boys spoke to us. One said, “The difference for me, in my experience with the police officer, is that in my first contact with him he asked me if I was all right”. He took an interest in the boy’s welfare. The officer said that he came from a very similar background to the boys and, “There but for the grace of God go I”. He really understood where they were coming from.
A discussion about mentoring and how important it is for young people came from that. I know that much good work goes on in mentoring but there needs to be a strategic lead from government given the very high number of boys, particularly, growing up with absent fathers. Under the aegis of the big society, we should be co-ordinating efforts so that many of our young people, particularly young men, get an interested adult, who is reliable and gets to know them over months and years, to help them make the transition to adulthood.
To conclude, I feel we are being unkind to these children, who are often extremely vulnerable. I fear we are shooting ourselves in the foot because, by making them feel more guilty, we are maybe leading them to hopelessness where they think, “All I can do is wrong. I am bad to the bone if the state says that I am”. We should not be visiting the sins of the fathers on the sons. The evidence is very clear that absent fatherhood is a key factor in contributing to criminality.
I wish this Bill every success through Parliament and I look forward to the Minister’s response, which I hope can be sympathetic.
The Lord Bishop of Derby
My Lords, I, too, thank the noble Lord, Lord Dholakia, for introducing this topic and I heartily endorse all that the noble Earl has said. This is a very complex issue, and we are having this debate in a national context in which public opinion wants justice to be seen to be done. A strong scapegoating mentality exists which indicates that there is also a high level of anxiety in society. The key people to be scapegoated tend to be criminals and immigrants. We have to take that part of the context seriously in having this debate. A second context, as we have heard, is the UN recommendation on the rights of the child, that the age of criminal responsibility should be at least 12. Many countries, as we have heard, go even higher than that. A third context is that there are suggestions, as there is in Ireland, of raising the age to 12, but of allowing some flexibility in dealing with serious crimes. So this is a very complex issue in an anxious society which is nervous about seeming to give positive signals to bad behaviour and social deviancy.
We have a variety of lines of approach. The Government, as I understand it from the briefing papers, are minded to stay with 10 years because of the argument that children at that age know what is right and what is wrong. That is one way of looking at it. Opponents say that the evidence of emotional and intellectual development means that children are too immature at the age of 10, even if they know what right and wrong are. The noble Earl eloquently mentioned the growth in maturity. I suggest that one of the dangers in this whole debate is treating children as individuals—which, of course, is a modern disease. Life is much more complex than about any of us being an individual. The Centre for Social Justice begins to recognise this. One of the arguments in its book on raising the age is about the need for what it calls a “whole family approach”, seeing the child in context.
However, as we have heard, family is not a positive context for many of the children who become offenders. We have to consider the context of the child as the key criteria for making an assessment, not treating them as an individual. The noble Baroness talked in a previous debate about her grandchild. My daughter has a young child who, as Christmas comes, is more and more targeted through television adverts as an economic unit at a very young age. That is just a little example of how children are seen as individual people and economic units.
However, of course no one is an individual—that is a modern myth. Each human being is a person who is who they are because of their relationships with others. Crime is when relationships go wrong or are handled destructively. Human beings are formed through relationships. I suggest that the key in assessing children and in finding an age on which to hook criminal responsibility is not to treat them as individuals, whether they have measureable psychology and development or whether they know right or wrong. It is to look at what I call the science of social formation, which is about where they are made a person, where they negotiate that, or where they work out their frustrations at not being the person they think they would like to be. We need to consider a number of sites of social formation in a debate such as this.
The first site of social formation is the family. Tragically, as we have heard, that is a weak link for many young people. The second site is the school. Certainly in my work with schools in the city of Derby, many young people who get drawn into crime have a very uneasy relationship with school, so it ceases to be a good formational site. Schemes of rehabilitation try to create opportunities for social interaction, but they are undermined by lack of resources. As we have heard on the mentoring of young men, the voluntary sector has an important part to play. In that sector we can create sites of social formation that are more fluid and flexible than the family or the school, and which can operate in much more informal ways.
I will give a small example of this. Last night I presented awards to choristers who had achieved a certain standard of singing in church choirs, many of whom were young people and children. We all know that to sing in a choir is about learning discipline and accountability and having a sense of achieving something for others. As we know, young people get drawn in to gangs and peer groups, but that needs to be put in a broader and bigger context. The voluntary sector has a lot of resources to offer young people that broader context—often an intergenerational one—which is a site of social formation that is more mature, richer and more likely to help young people develop responsible relationships.
We should not, therefore, look at this age issue only in terms of the young person being a moral agent or in terms of their maturity. We should look at how they progress in terms of social relationships and where there is support for that, and measurement. For instance, in the church the age for confirmation is generally 11. Being the Church of England, we allow all kinds of exceptions one way or the other; some people might be in a strong Christian family at a younger age of nine or 10. However, confirmation generally takes place at age 11 and above because people are then in a secondary school environment, which is a much richer social formation environment than primary school—a much richer, more complex, more challenging one. That is where young people need to be helped to grow and to be accountable.
I make a plea that we not be intimidated by the scapegoating mentality of the wider society in which we sit, which forms a backcloth that might make the case for seeming to be tough, which will mean that children will pay the price. I am asking that we do not just objectify children as individuals, whether economic units, moral units or developmental units. Children above all human beings need to have taken seriously the fact that we grow through relationship and social formation.
The Christian gospel highlights the miracle of forgiveness, which we need to remember in this debate—the possibility to join in a different kind of set of social relationships that are more wholesome, nourishing and flexible. For children, the promise and possibility of forgiveness is very important. We have all done things when we were small that we needed the chance to recover from, and that needs to be a very important part of our calculations. If we are going to resist scapegoating and objectifying and take the social context of the formation of children seriously, and know that that, love and forgiveness and another chance are what grow people into full human beings, in the context of those things, I am minded to support the noble Lord’s suggestion to move from 10 to 12 years, and I can see lots of advances in perhaps raising the bar even higher one day.
Lord Ramsbotham (CB)
My Lords, I, too, congratulate the noble Lord, Lord Dholakia, on introducing this Bill and on the impeccable way in which he presented his case. I remind the House of the 1985 Standard Minimum Rules for the Administration of Juvenile Justice, which were endorsed by the 1990 Convention on the Rights of the Child. The rules say that each state party must enforce a single minimum age of criminal responsibility at the minimum age of 12, although somewhere within the range of the 14 to 16 age range is the most desirable. There we are, with the age of 10, at the bottom of the league table that the noble Lord, Lord Dholakia, read out, with Brazil at 18 and China and Russia at 14.
I have often quoted Winston Churchill in this House. On 20 July 1910 he said in the other place that the way in which it treats its crime and criminals is a true test of the civilisation of any country. I was thinking about that when my noble friend shot my fox by mentioning the report written by Professor Sue Bailey, who once briefed me on the situation regarding the two people publicly pilloried over the years for the killing of Jamie Bulger. Both boys were aged 10, but Professor Sue Bailey told me that they had a developmental age of four. Bearing in mind the background from which they came, that confirms everything that the right reverend Prelate the Bishop of Derby said about the context in which these children are brought up.
In thinking about that, I wonder whether those responsible for producing the last confirmation of the age of 10 in the Green Paper Breaking the Cycle had really paid any attention at all to the huge amount of development in evidence of the neurodevelopment of children since that date. Here I don my hat as the chairman of the Criminal Justice Acquired Brain Injury Interest Group, members of which have been responsible for a great deal of this development. I am going to deliberately focus on that and spell out some of the things to which, I suspect, the Government paid no attention, any more than they did to the United Nations obligations that I have spelt out already, when drawing up that confirmation of the age of 10.
The emerging picture of adolescence is of a period in which individuals may be near mature levels of competency in some areas while far from those in others. Understanding neurodevelopment is of direct relevance to three questions that must be asked when examining them in the context of improving the youth justice system. We should remember that the aims of that system are the prevention of offending, safeguarding the public and the delivery of justice. The relevant three questions are as follows. How culpable are young people for the unlawful behaviour in which they engage? How competent are they to participate in the criminal and youth justice systems as individuals alleged of having committed a crime? What is the impact of involving them in the criminal justice system as a whole? I think that there are developmentally informed answers to each of these questions, combined, as I have mentioned already, with an understanding of the children’s rights that the United Kingdom has agreed to protect. Examination of these issues confirms that the current age of 10 is far too low to achieve either the stated aims or to satisfy the logic of neurodevelopment.
Three domains undergo substantial development during adolescence, which I will not examine in detail—executive functioning, emotional processing and social cognition. First, I want to focus on executive functioning: that is, the skills involved in the control and co-ordination of thoughts and behaviours, including working memory, selective attention and inhibition of emotional responses. They are used in everyday tasks such as decision-making, problem solving, long-term planning and social interaction. The evidence says that maturation of these is not completed until the age of 18, and that on the way to that maturation there is the likelihood of impulsivity, sensation seeking and risk-taking behaviours —all the things that we experience in our own children and grandchildren. As other noble Lords have said, that does not mean that young people bear no responsibility for their behaviour but it does mean that they are likely to be less responsible.
The noble Lord, Lord Dholakia, rightly mentioned the ability to take part in the legal process, what is described as adjudicative competence, fitness to plead and effective trial participation. We should think through what that actually means. It means understanding the court processes, charges, defences and their possible consequences, deciding how to plead, challenging jurors, instructing lawyers, giving evidence and responding to cross-examination. That is not just a list that I have drawn up, it is the official list as laid down for adjudicative competence. Pre-adjudicative competence was listed by the Home Office in 2008 as including fitness to be interviewed and understanding the purpose of interviews, the questions asked and the significance of answers given. Do any of us think that at the age of 10 anyone is capable of going through all that? What worries me about the present Government is that not only is the age of 10 the age of criminal responsibility but next week we start work on an anti-social behaviour Bill which could, if carried, mean that I could take out an injunction for nuisance and annoyance against my 10 year-old grandson for having refused to eat the boiled egg that I cooked for him last weekend. I say to the Government, “Come on, wake up”.
As other noble Lords have said, there is a very high level of correlation between juvenile offending behaviour and the multiple disadvantage that is the lot of too many juvenile offenders. All this suggests to me that the prevention of offending, which is the aim of all this, depends, at least in part, on effective action to tackle those deep-seated and complex needs. To my mind, that points to addressing the welfare and well-being of these young people rather than focusing first of all on the punitive approach. As someone who cares very deeply about the reputation of this country in the world, I wish that the Government would listen to the sentiments and wise words of their late leader.
Baroness Thornton (Lab)
My Lords, I congratulate the noble Lord, Lord Dholakia, on introducing this Private Member’s Bill. I also congratulate noble Lords on their contributions to the debate. They have taken us on a commendable tour of the international, national, social, political, neurological and academic arguments on this matter. This is an admirably short and concise Bill. In a way, its very clarity belies the actual complexity of the issue we are dealing with and the public debate that would be necessary for such changes to take place.
Noble Lords have produced for us and explained powerful evidence for change. However, perhaps with the exception of the right reverend Prelate, they have not produced or articulated the powerful feelings on both sides that this proposal produces whenever it is put forward. As the noble Lord, Lord Rambotham, reminded us, we have to remember the statements that Denise Fergus, the mother of James Bulger, makes whenever the issue of criminal responsibility is raised and realise that this is not a straightforward matter at all. The right reverend Prelate was quite right when he mentioned scapegoating in relation to this issue.
Without doubt a serious debate is to be had, which is to be welcomed. This Bill is part of and will lend impetus to the important discussion that needs to take place across the nation. The experts who make the powerful case for change need also to convince those who feel that it is not a right and just way forward. It is without doubt a very important matter indeed and noble Lords have made the case most powerfully. I am looking forward to hearing what the Minister has to say and to the further debates that will take place about the age of criminalisation as this Bill moves forward.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend Lord Dholakia for introducing the Bill and for giving us a further opportunity to debate this important issue. I align myself with the sentiments expressed by the noble Baroness, Lady Thornton, who said that this is a serious matter and a serious debate, and it is right that we in this House, with our clear expertise, discuss this from both sides of the argument. I pay tribute to my noble friend’s work in this area and his continuing interest in it.
Let me say at the outset—and the right reverend Prelate mentioned this—the Government currently have no plans to raise the age of criminal responsibility from 10 to 12. We believe that children aged 10 and above are able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions. When a young person has committed an offence, it is important that they understand that it is a serious matter and will be dealt with as such. The public must also have confidence in the youth justice system and know that offending will be dealt with effectively.
As several noble Lords have said, serious crimes committed by children are mercifully rare and we do not want to see all 10 and 11 year-olds prosecuted for minor offences. However, it is important to ensure that serious offences can, where appropriate, be prosecuted and the public protected. We are aware that offences committed by young people may have a devastating effect on both victims and the wider community, and it would be wrong to ignore this. The tragic case of the murder of Jamie Bulger—which we all know so well and which my noble friend mentioned—immediately comes to mind in this context.
It is of key importance that the youth justice system retains its ability to respond flexibly and effectively to offences committed by young people, and this must include the ability to make use of robust sanctions in the event of serious offending. This includes the use of custody as punishment and to protect the public where appropriate. Indeed, between 2002 and 2012, 13 10 and 11 year-olds received a custodial sentence. However, setting the minimum age of criminal responsibility at 10 does not lead to the prosecution of a large number of 10 and 11 year-olds. For example, in 2012 only 262 10 and 11 year-olds were proceeded against at court, compared with 859 12 year-olds. Of those 10 and 11 year-olds, 147 were given community sentences, and the others were found not guilty, fined or given an unconditional or conditional discharge.
Not all crimes committed by those aged 10 or over will result in prosecution. We are keen to ensure that, whenever possible, children are not prosecuted. The principal aim of the youth justice system is to prevent young people offending. The noble Earl, Lord Listowel, referred to the importance of early intervention. I reflect back to my maiden speech in your Lordships’ House, which was on this very issue. I join the noble Earl in paying tribute to the important work that people such as Graham Allen are doing in this respect. The Government take note of it and consider it at all times. I also align myself with the noble Earl’s comments about the work of both the previous Children’s Minister, Tim Loughton, and the current Children’s Minister, Edward Timpson, and I will certainly convey his remarks to them. I thank the noble Earl for his kind remarks in this regard.
My noble friend Lord Dholakia asked an important question about welfare. Legislation requires courts to have regard to the welfare of all under-18 year-olds. Section 44 of the Children and Young Persons Act 1933 provides that every court, in dealing with a child or young person brought before it, shall have regard to their welfare. This is reinforced by detailed guidance contained in the sentencing guideline Overarching Principles—Sentencing Youths, which sets out for the courts the principles to be followed when sentencing under-18s. This places a strong emphasis on the need to take into consideration welfare issues and to use interventions that are most likely to prevent reoffending.
The right reverend Prelate the Bishop of Derby, in his most thoughtful contribution, raised the concept of the science of social formation. He talked about the importance of the three pillars of family, school and rehabilitation. As a person of faith, I associate myself with the sentiments that he expressed on the concept of forgiveness. He also referred to his family and talked of his daughter’s child being an “economic unit”, becoming a more active economic unit when Christmas comes. I say to the right reverend Prelate that I have two economic units at home, and they persist as such throughout 12 months of the year and not just at Christmas. However, that is perhaps a discussion that we can have outside this debate.
My noble friend Lord Dholakia talked about mental capacity. The sentencing guideline Overarching principles —Sentencing Youths, to which I referred, ensures that proper regard is had to the mental health and capability of the young person, and to the learning disability, learning difficulty, speech and language difficulty or any other disorder, any of which is likely to affect the sentence. The guideline must be followed by the courts.
Maintaining the age of criminal responsibility at 10 years of age also enables offenders to be identified at an early stage. This allows multi-agency youth offending teams, which include representatives from health, housing, children’s services and education, to become involved with the aim of putting interventions in place to address the child’s behaviour. These interventions can include addressing their attendance at, and attitude to, school, referral to a speech and language therapist if there is an identified issue with communication, and, finally, youth crime prevention programmes, which work to keep young people away from crime.
If an out-of-court disposal is considered to be appropriate, as is usually the case for a first-time offence, the police, in consultation with the youth offending team—and, for indictable-only offences, the CPS—may offer a youth caution or a youth conditional caution for a young person aged 10 to 17. We also introduced this new out-of-court framework for under-18s in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into effect for offences committed from 8 April 2013. This new framework simplified and rationalised the previous framework to provide a flexible approach which allows for professional discretion to apply the most appropriate disposal. That did away with the escalator in the previous reprimand and warning scheme, which forced further offending up the criminal justice system regardless of the seriousness of the offence.
The youth caution may be given for any offence where the young offender admits an offence or there is sufficient evidence for a realistic prospect of conviction but it is not in the public interest to prosecute. Youth cautions aim to provide a proportionate and effective resolution to offending and support the principal statutory aim of the youth justice system of preventing offending by children and young people, a sentiment with which I know all noble Lords who have participated agree.
Where a youth caution is given, the police have a statutory duty to refer the young offender to the youth offending team. For a second or subsequent youth caution or where a young person has previously received a youth conditional caution, the youth offending team has a statutory duty to carry out an assessment of the young offender and to consider putting in place an intervention programme aimed at preventing reoffending. The youth offending team may carry out an assessment and offer a rehabilitation programme for a young person who has never received a youth caution or youth conditional caution at their discretion.
Youth conditional cautions require young people to take responsibility for their actions, including agreeing to conditions that require them to put things right or seeking help for their behaviour. They provide an opportunity in appropriate cases to achieve an early positive response for those young people who are willing to admit their offending and to comply with certain conditions. Like youth cautions, they aim to support the principal aim of the youth justice system, which, again, I reiterate, is to prevent offending by children and young people. For example, they allow for a proportionate response in appropriate cases, for offenders to make swift reparation to victims and communities, and for offenders to be diverted at an early opportunity into rehabilitative services, reducing the likelihood of reoffending. The conditions that can be attached to a youth conditional caution must include one or more of the objectives of rehabilitation, reparation and punishment.
Rehabilitative conditions may include attending one or more of a range of interventions available to the youth offending team for addressing offending behaviour. Reparative conditions may include apologising, repairing or otherwise making good any damage caused, provided of course that that is acceptable to the victim. Punitive conditions may include attendance at a specific place to undertake an agreed activity. However, I stress that in any case where the police or CPS are considering offering a youth conditional caution or a second or subsequent youth caution, the case must be referred to the local youth offending team to provide a check on the appropriateness of the disposal and the interventions that should go alongside.
Where a person aged between 10 and 17 pleads guilty and is convicted for the first time of an imprisonable offence, the court must pass in most cases a referral order. A referral order is based on the restorative justice principles and may be between three and 12 months in length. The offender is referred to a youth offender panel made up of two specifically trained community volunteers and a member of the youth offending team. The panel agrees a contract with the young person, which may include reparation and interventions to address any risk of reoffending. By holding the young offender to account for their actions, the young person can find the process very challenging. In addition, parents are also required to attend this panel, which means that they are directly engaged in the sentence and take responsibility for their child.
Restorative justice, which has been shown to be effective for young people, is increasingly used as part of a referral order and funding has been provided to youth offending teams to allow panel members to be trained as restorative justice conference facilitators. That allows the panel to include a structured restorative justice group conference involving a facilitator, the offender, the victim where they indicate that they wish to participate, professionals such as social workers and, possibly, representatives of the wider community.
Custody is available for 10 to 11 year-olds only if they commit a grave or serious crime—normally one where an adult would be liable to a maximum penalty of 14 years’ imprisonment or more. A child of this age who is sent to custody would only be placed in a secure children’s home with a strong focus on addressing their particular behaviour and their family’s needs as well as their offending behaviour. There are also restrictions on custody for 12 to 14 year-olds who become eligible for a detention and training order only if the court considers the offending to be not only serious but that custody is necessary and that they are persistent offenders. Otherwise, custody becomes an option only where the offence is grave or a serious crime, as for 10 to 11 year-olds.
Legislation introduced in November 2009 alongside the youth rehabilitation order—the main community sentence for under-18s—requires courts to consider a youth rehabilitation order with a high intensity requirement before they can make a custodial sentence. This clearly signals our compliance with the UNCRC principle that custody is the option of last resort for an under-18, which I know the noble Lord, Lord Ramsbotham, also referred to. As noble Lords will also be aware, my right honourable friend the Secretary of State and Lord Chancellor in the other place has announced his intention to introduce a new form of youth detention accommodation—secure colleges—which are focused on delivering education in detention. We maintain that education is the best means of preventing reoffending.
I now come to a few of the additional questions that I have not yet covered. The noble Lord, Lord Ramsbotham, referred to the Anti-social Behaviour, Crime and Policing Bill, which I am sure many noble Lords are looking forward to discussing in the coming weeks, and IPNAs. IPNAs may now be coined as the boiled-egg syndrome. But it is a matter for him whether he takes out an IPNA on such an occasion. But the Bill that we will be discussing next week is a serious one. It is designed to allow police to intercede where a person's behaviour is having an unacceptable impact on another person. Guidance will be provided for police and practitioners. As I said, I am sure that we will be having many discussions in this area.
The noble Earl, Lord Listowel, also raised rules of engagement, which were raised by my right honourable friend Iain Duncan Smith. I am not able to clarify whether a formal response was provided, but I shall write to the noble Earl in this respect. The noble Earl raised the issue of the ACPO guidelines and the 2010 report, which I know the Ministry of Justice is currently working on with colleagues at the Home Office. We will of course share the outcomes of that review with noble Lords as he requested.
The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Derby raised the issue of mentoring. Mentors are used frequently in our criminal justice system and there is a great emphasis in the current process of offender rehabilitation to look at mentoring across the board. It is something that works. It has been shown to produce the results that we require and, most importantly, it ensures that people become productive citizens at the end of that mentoring. It is something that we are seeking to do within the rehabilitation programme. If someone is given a custodial sentence, a needs analysis is conducted and mentoring continues not just during that sentence but, most importantly, when they come to the end of their custodial sentence.
I pay particular tribute to the work that the noble Earl does across several APPGs relating to children. The Government look with great interest and take note of the findings and reports that they make. He referred to Police Constable Storey. I did not meet the particular officer concerned, but from what the noble Earl said, it appears that it was a very moving occasion, which demonstrates the importance of mentoring.
We have seen a significant fall in the number of under-18s being dealt with in the criminal justice system in recent years. A clear contributory factor to that fall was the doing away in 2008 with the police target introduced under the previous Government for offenders brought to justice. Since 2008-09, 54% fewer younger people have been coming into the youth justice system, 32% fewer in custody and 14% fewer reoffenders.
In conclusion, the Government firmly believe that the current age of criminal responsibility allows the necessary flexibility to deal effectively with young people who commit offences and accurately reflects what is required of our justice system. Reference has been made by several noble Lords to the raising of the minimum age in Scotland and the reviews in Northern Ireland. As the noble Baroness, Lady Thornton, said, the Government are continuing to look at those areas. We have no plans to raise the age from 10, but we continue to watch with interest the developments in Scotland and Northern Ireland.
We believe that the argument which has been put forward by successive Governments to keep the age of criminal responsibility at the age of 10 holds. It allows us to intervene early and prevent robustly further offending. Most importantly, it helps young people to develop a sense of personal responsibility for their behaviour. In closing, I would like to say that while taking on board and listening carefully to the contributions of my noble friend Lord Dholakia, as I always do, for the reasons I have outlined, the Government do not support the Bill.
Lord Dholakia
My Lords, I thank the Minister for his response to the debate. Every time I prepare my contribution, the first thing I write mentally is the speech that the Minister is supposed to make, and he has not disappointed me. Perhaps I can say very simply to him that if this is good enough for the rest of Europe—many countries and international examples have been cited—I think he needs to look seriously at why we are falling behind on this issue. I will not be making an inroad on the time of the House on a Friday afternoon when there is another debate to come, but I want to take this opportunity to thank all noble Lords who have contributed.
The contribution of the noble Earl, Lord Listowel, on matters relating to children and young people is unique in the House and we should take serious note of what he says. In regard to the noble Lord, Lord Ramsbotham, every time he speaks I am sure that at the least I will agree with what he says, and in many cases I will follow him into the appropriate Lobby. He has never been wrong in identifying these issues and I thank him for his contribution. It was also very nice of the right reverend Prelate the Bishop of Derby to speak in the debate. You cannot be wrong if God and the church is your side, and I welcome his contribution to the issue. The noble Baroness, Lady Thornton, was absolutely right in what she said about public opinion.
Let me put it this way: there are other issues that the Government and this country are going to have to face. Those include prisoners’ voting rights, which will come before noble Lords before long. Sometimes it is necessary for the Government to give a lead rather than follow public opinion, and this is one of those times. I ask the House to give the Bill a Second Reading.
Unsolicited Telephone Communications Bill [HL]
Lord Selsdon (Con)
My Lords, over my years in this House, I have found that two subjects always come to the front and the back of my mind at the same time. Those are privacy and freedom. If we are not careful, we will find that legislation can handicap and control us, bureaucracy takes over, and we lose that most critical quality of individuality. For me, privacy in one’s own home is as important as anything. It is for this reason that, over a period of 10 years, I introduced a Bill on powers of entry, not necessarily to produce new legislation, but to bring forward regulations that would forbid someone to go into a person’s home without permission or without a court order.
I find, too, that if you want to do something here, you start with a Starred Question, and you have a little debate. Then you table a Question for Written Answer, but not like the leaders, who may ask hundreds of questions a year. You are seeking information. If you do not get it, you try a Private Member’s Bill, which effectively opens up the issue for discussion and debate. That is the purpose today. I am very grateful to the Government for giving me permission to speak and to introduce the Bill. Its objective is not necessarily to pass into law but to raise issues for open debate.
Unsolicited telephone communications are commonly known as a nuisance phone calls. I do not know who thought of the term “nuisance” first, but that includes unsolicited live direct marketing calls, automated recorded message calls and silent, abandoned calls. That is as if people were entering your home without permission unless they have said who they are. Many of these calls cause considerable distress. They come under the control, indirectly or directly, of Ofcom. Recent research by Ofcom of UK adults with landline phones found that 82% had experienced a nuisance call over the four-week period of that research. More than 54% reported experiencing a silent call and an estimated 17% an abandoned call. Other research drew attention to the stress and anxiety caused to many recipients by that invasion of privacy, as one might call it, including a report that more than 3 million people were left with a fear of answering the phone and worry about debt selling or payday loans.
That is easily soluble by regulation. We have to bring in this great thing, the European Economic Community. The principle at the moment is that if you use Ofcom, you have a chance to say that you do not want nuisance calls, but that does not actually help you very much. The purpose of the Bill is to say that if you want to receive calls, you register with Ofcom; if you do not want to receive calls, you do not do anything. EC Directive 2002/58 states that it is up to member states to decide whether they have an opt-in or an opt-out policy for marketing phone calls. Therefore, the Bill does not contradict the EC directive, which states:
“Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation”.
I am saying that to stop this invasion of your house or your home, we change the rules, which we can do quite simply in this House—domestically—so that only those who want those calls opt in and everyone else is protected.
The Bill reverses the relevant regulations in the privacy and electronic communications directive. We can do that domestically. Your Lordships will probably be aware that one of the most informed institutions in the world on EEC matters is your Lordships’ House, because of its numerous EU committees. I am advised that it is a simple matter to change the implementation of the EC regulation here in the United Kingdom so that this proposal works.
At present, Ofcom keeps a register of people who have opted out. The principle of leaving Ofcom in control is therefore accepted. Your Lordships have considerable experience here, and from discussions, I have a feeling that officials may say that this is not possible, whereas the Public Bill Office, for which I have great respect, feels that it is. With his wise judgment, my noble friend the Minister will make a decision one way or the other in a few moments.
There is also the fear factor. I never realised how invading your home with telephone calls caused stress. I do not see why one cannot get a response. If we have had 82% receiving nuisance calls over a four-week period, one wonders how many there are.
Which bodies approach you depends on what people are trying to sell you. However, there is a reverse factor here: if you want to speak to any bank these days, normally you are referred directly or indirectly to a call centre, wherever it may be on the face of the earth. How do you know who is at that call centre? You will usually get a Christian name given to you. Now, is that Christian name the name of the young lady who is answering or is it the name of the telephone post? I have found, on many occasions when I have rung on various financial matters, that I get “Tracy” with a different name. Or you have your offshore organisations, where you may ring Calcutta but you have no idea whether or not you are ringing a respectable body. Telecommunications as such have created a great degree of uncertainty.
I hope that your Lordships will accept that I am not trying to do anything complex. I am advised by the Public Bill Office that this is easy and will be almost a stroke of the pen. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I apologise to the noble Lord, Lord Selsdon, for not giving him warning that I would speak in the gap. I have, however, informed both the Front Benches. I was not certain that I would be here in time today, which is why I was not able to put my name on the list. I apologise to the House for that.
I speak because of a particular interest of mine arising from my earlier role as vice-chairman of the Financial Services Consumer Panel. We were dealing with PPI and pressed first the Financial Ombudsman Service and then the FSA very hard to take action on its mis-selling. We thought that we had achieved a lot when it was realised that, while the product was not necessarily bad in itself, it was being mis-sold. It took a long time to persuade people of that, but when we had it was clear that a number of them would get redress. I was therefore not ashamed but immensely disappointed to discover that the unintended consequence of that was this absolute barrage of phone calls; many noble Lords, many of whom may not be here today, have recounted stories of being offered money back that they had never actually spent.
As the House will know—there was an exchange on this just yesterday—we are quite chuffed that we have now got a similar move forward on the ability of tenants and landlords who might have been mis-sold something, or mistreated by a letting agent, to take that to an ombudsman. That will become legislation and will come into force some time in the coming year. However, I fear that the same lot of people will again be after rich pickings and will start phoning up tenants and landlords in the same sort of way. We cannot just deal with this problem issue by issue.
The Bill therefore seems extremely timely. I myself have opted out but I still get these calls, mostly from abroad, which do not seem to be caught by the opt-out. One is also not able to trace the number to call back and make complaints. Partly personally, but partly on behalf of those consumer groups that do so much to get things such as redress and then find that that leads to this sort of nonsense, I thank the noble Lord for introducing the Bill and I wish it well.
Lord Stevenson of Balmacara (Lab)
My Lords, I, too, thank the noble Lord, Lord Selsdon, for introducing the Bill. It comes at a particularly interesting time because it comes on the back of a number of other reports and suggestions for change on this issue. I draw particular attention to the all-party group that has been set up on this issue, of which I am sure he is well aware. Reading what it has said this week, I was struck by how much it chimed with much of what the noble Lord has been saying. It has a list of 15 or 16 recommendations that seem extremely good. If the Bill is to proceed, it would be worth having a further discussion with the officers and that committee to get the benefit of where it has got to in its evidence and support.
In supporting the Bill and wishing it well, I must pick up on something my noble friend Lady Hayter suggested. There are one or two things about the existing arrangements that might be picked up in the debate and discussions, and I would welcome a further session with the noble Lord, if he is happy to do that, because, speaking in my capacity as chair of the StepChange debt charity, I have some thoughts about some of the ways in which those who market and sell financial products prey on vulnerable customers. The noble Lord does not include that in his Bill in particular, but it is an area we might explore together to see whether there is room for movement.
As the Bill is currently drafted, there might be concern about how individuals will grant consent to being on the “can be contacted” list. The essence is straightforward, but if it is to be done by a third party or through an agency such as Ofcom or the TPS, the Bill will have to deal with its rights and responsibilities. It may increase the number of unsolicited calls because being on the list would make an individual’s number available to anybody who wants it. We might have to think through the implications of that.
The downside of making the Bill very restrictive is that there might be problems for those who currently market in that way. One would have to think about how that is calibrated. It is important to recognise that denying consumers the opportunity to receive calls that they might want is an area that we might have to consider with care.
The Bill does not solve the problem that my noble friend Lady Hayter mentioned. If you are currently registered under the TPS, that does not prevent you receiving calls that originate outside the UK. This is a well known gap, and it is something that government has looked at from time to time. When the Minister replies, I hope he will say where we are on this. It is a bit useless to have a situation that prevents calls originating within the UK but does not prevent the very large number of calls that come from abroad.
The Bill does not address firms getting access to consumer lists, whether they are opt-in or opt-out. It may be worth looking again at that. On the one hand, we want to make data available for marketing purposes but, on the other, those data have a marketable value and it is not unknown for these lists to be sold for other firms to make use of them. Perhaps that is where one might want to act to stop unscrupulous firms.
There is a difficulty in the current legislation about issuing monetary penalties. We are not against monetary penalties. They are very useful, and they can be quite sizeable. They ought to be a very effective way of cleaning up this area, but unfortunately the threshold that you have to reach before you apply them is too high. It is something that the Bill could look at.
At the moment, redress is, ironically, very difficult for consumers who are receiving calls, even if they are on opt-in basis. If the caller becomes a nuisance or is acting illegally, there is no redress scheme. My noble friend Lady Hayter made a good suggestion about an ombudsperson.
One of the key problems of the current system is that the ICO and Ofcom share responsibility for regulating this area. That can be okay, but the problem of who has responsibility is compounded by the fact that the ICO is relatively short-staffed and underresourced and Ofcom has similar but different difficulties in this area. Between them, they carve up the field, but they are unable to take on the full range of responsibilities that they would like to take on. If we were to go further on this Bill, it might be worth thinking about how best to arrange the regulation.
Lord Gardiner of Kimble (Con)
My Lords, I make it clear from the outset that the Government very much welcome and appreciate the efforts and concern that my noble friend has shown in highlighting this important issue. I am sure that, for many consumers, my noble friend reflects the feeling that something more needs to be done to deal with this problem. The noble Baroness, Lady Hayter, and the noble Lord, Lord Stevenson of Balmacara, also raised the points about consumers and the redress and improvements we all seek. The Bill is welcome in that it is a timely opportunity for further discussion.
The resolution of this issue is more complex than at first sight it might appear. It requires industry, government and consumers to collaborate if there is to be any chance of success. Unsolicited telephone marketing nuisance calls are certainly topical and have been the focus of vast amounts of correspondence, many Parliamentary Questions, a Select Committee inquiry in the other place and an inquiry led by the All-Party Parliamentary Group on Nuisance Calls, as mentioned by the noble Lord, Lord Stevenson, whose report was published last week.
These reflect the clear fact that, despite the Privacy and Electronic Communications (EC Directive) Regulations 2003 being in place, unsolicited marketing nuisance calls are a source of great annoyance and inconvenience for consumers. Indeed, when I pick up a message which starts, “That’s right!”, I am pretty certain that it is not. I also may well ignore being instructed to press a certain number to get further information. To many, however, and especially the elderly and more vulnerable, as all noble Lords have said, this causes confusion and great anxiety. I wish that there were a magic wand that could be waved to eradicate the problem but, sadly, that is simply not possible.
I assure noble Lords that we are absolutely determined to take action on this issue. That is why the Minister for Culture, Communications and Creative Industries has initiated and led a serious of meetings over the past 18 months which have brought together the key interested parties to press for change. Unsolicited calls and texts are a problem, but we have to be careful that, in dealing with this issue, we do not harm the direct marketing industry, which is a legitimate industry that provides employment and opportunities in support of our economy. The noble Lord, Lord Stevenson, made precisely that point. Direct marketing can be beneficial for consumers—for example, calls from telecoms or energy companies advising on better deals or tariffs potentially save consumers money. An opt-in register, as in the Bill, would severely constrain such activities. We must therefore consider the matter carefully.
What action are the Government taking? From those meetings, we now have clearer and improved guidance and information for consumers, to help ensure that they are aware of where to go to register complaints on regulators’ websites. I realise that, of course, to many of the elderly this may not be an option, but this information is now more consistent and readily available. The consumer organisation Which? has also been engaged in the meetings and has developed a useful mechanism on its website by which consumers are automatically directed to the right place to access information as well as to make complaints.
On enforcement, we have ensured that the monetary penalties that the Information Commissioner’s Office and Ofcom can use have been increased and, equally importantly, used more frequently to fine companies which break the regulations. We have made clear in tasking regulators that, through robust action, they must send a clear signal that those who flout the rules will be caught. We are pleased that, since January 2012, more than £2.3 million has been issued in fines and would want to see more.
Persistent offending companies are also now named and shamed on the Information Commissioner’s Office website, so that those who engage in poor practice are made known to the public, as informed consumers are safer consumers. There is also greater collaboration between regulators, sharing knowledge and expertise to improve compliance throughout. However, we are fully aware that much more needs to be done. That is why our future proposals for nuisance calls were set out in our strategy paper published on 30 July. These include legislating to ensure that Ofcom can share information more easily with the Information Commissioner’s Office. We will be implementing this through a statutory instrument that will be laid shortly, with a view to it coming into force by 6 April 2014 at the latest, if not sooner.
We are also actively considering the scope to legislate to lower the legal threshold the ICO needs to demonstrate before issuing a monetary penalty, which the noble Lord, Lord Stevenson of Balmacara, mentioned. We are assessing the business case and the cost before we take action on this. In view of the large number of nuisance calls relating to the payment protection insurance sector, which the noble Baroness, Lady Hayter, referred to, we are also working closely with the Claims Management Regulator. It is welcome to see that the CMR is taking action against claims management companies which fail to comply with the rules.
Baroness Hayter of Kentish Town
The Government have made no progress yet on the funding of the claims management ombudsman. If the Minister is not able to answer now, I hope he can come back and maybe give a report to the House on that.
Lord Gardiner of Kimble
It is probably best if I write to your Lordships so I can give chapter and verse on that matter.
The main issue in this Bill is changing from the current opt-out requirement to an opt-in system for unsolicited direct marketing calls. There is a feeling that this is unlikely by itself to make an impact on the present situation, as calls to consumers who are registered with the Telephone Preference Service, provided they have not given explicit consent to receive such calls, are already outlawed under the Privacy and Electronic Communications Regulations. Germany has an opt-in system but, according to a study in 2011 by trueCall Ltd, complaint levels are broadly similar to those in the UK. The Government’s view is that those breaking the law by calling consumers registered with the Telephone Preference Service are just as likely to ignore the law, regardless of whether there is an opt-in or opt-out system. Tackling nuisance calls would be better addressed by focusing on improving enforcement rather than changing the nature of the register; legislation of this nature is unlikely to be the answer.
The Government will continue to work with regulators, network operators, consumer group representatives, interested Members of Parliament and Members of your Lordships’ House to find solutions. A combined effort by all parties is needed. This is now beginning to happen and we are ensuring that work by the industry is also under way including, for example, the ability to trace calls where the calling number is deliberately withheld or spoofed. This will also help contribute towards achieving more long-term solutions. We welcome the fact that TalkTalk last week launched a network-level solution for its customers and that BT will be displaying full call-line identification for incoming international calls, where available, on its network by next autumn. Last week, the Telephone Preference Service launched its accreditation scheme, TPS Assured, which seeks to improve best practice among companies. We know that there are already products on the market which can help consumers filter calls. We are keen for the UK to take a lead in developing the solutions that put the power in the hands of consumers. We are aware that, as part of the joint action plan to tackle nuisance calls and messages, which was launched by Ofcom and the Information Commissioner’s Office in July, research is being undertaken to see what further improvements can be made to the Telephone Preference Service. All this is extremely welcome.
We take the issues raised in this Bill very seriously and very careful consideration needs to be given to them. The reservation we have about my noble friend’s Bill is not that we do not share the intention to remedy the matter but that we think there is a more effective route to securing what my noble friend’s Bill seeks to achieve. We already have regulations in place that protect consumers, so the focus needs to be on better enforcement in support of them. In addition to the measures noted earlier, we are actively considering proposals for further reform. The recommendations of the report from the All-Party Parliamentary Group on Nuisance Calls, published last week, and the forthcoming report of the recent CMS Select Committee inquiry will be useful in informing further our thinking in this area. The work is ongoing, and the Government will publish their action plan on nuisance calls later this year. I hope that your Lordships will understand that this reflects the importance and urgency of this issue.
The practical way to solve this issue is to get industry and regulators to work together. Like my noble friend, I am eager to find effective solutions, both legislative and non-legislative. In doing that we need to balance the right of business to conduct legitimate direct marketing while strengthening the regulatory framework and industry best practice to target companies that flout the rules. In view of the work, legislative and non-legislative, I assure your Lordships that we are progressing efforts to counter the issue of unsolicited marketing of nuisance calls with vigour.
Lord Selsdon
My Lords, I am most grateful to the noble Baroness, Lady Hayter, and the noble Lord, Lord Stevenson. It is so nice to have more support on the opposition Benches than on one’s own. I say nothing against my noble friend, but he is too young to remember those signs on gates outside houses, which said, “No hawkers, no circulars”. He will, of course, know that the reason that I am in your Lordships’ House is to do with telecommunications, because my grandfather was the longest-serving Postmaster General in the past 100 years.
I will give my noble friend a little help and refer him to the wonderful report from the House of Lords Library. However, that report is effectively banned from outside circulation because of information that is deemed as not approved for use elsewhere. Will he give very serious consideration to the all-party group that he mentioned last week? Will he also consider: the DCMS written evidence; the report submitted to the House of Commons nuisance calls inquiry of 10 September 2013; the ICO and Ofcom joint action plan, “Tackling Nuisance Calls and Messages”, of 31 July 2013; the Ofcom landline nuisance calls panel research of 17 May 2013; the House of Commons Library Note, Nuisance Calls: Unsolicited Sales and Marketing, and Silent Calls, of 10 July 2013; and StepChange’s “Got Their Number” campaign of 29 October 2013. I want to make sure that this goes into Hansard so that other people can read it
I can therefore assure the noble Lord that I have at my disposal perhaps as much information as, or possibly even more, than his officials. Therefore, on that expression “foot-dragging”, I never know whether it means you drag the whole of your foot or just your toe when you do it. I would be grateful if he would give consent to perhaps having a small group meeting as quickly as possible so that we can work out the solutions. One of those solutions would be the amendment of that EC directive or part thereof. Maybe his officials might meet with the Public Bill Office upstairs to see how this could be done.
In the mean time, we find that most of the people who suffer the greatest are not electronically enabled. They do not have PCs; they are not “press button to answer” people. They cannot even work an answerphone. However, they feel very insecure when, out of the blue, comes a voice they try to answer but which gives no response. They do not know what these calls are. This is about the uncertainty and anxiety that is created. I thought, for a bit of fun, that I would make a threatening message; I will not repeat it to your Lordships, but I recorded myself so that I could press a button when anyone did that to me and leave them in fear of their life. However, that would probably have got me into serious trouble.
I am very grateful to my noble friend the Minister, who is a very good chap, and will do what he said. I took the liberty—I probably should not mention this in your Lordships’ House—of speaking to his officials. We know that officials are pretty good but, although they often try to direct their Minister, we always work better when Ministers direct their officials. I beg to move.