House of Lords

Wednesday 21st November 2018 Lords Chamber

Wednesday 21 November 2018

15:00

Prayers—read by the Lord Bishop of Oxford.

Women’s Refuges: Funding

Wednesday 21st November 2018 Lords Chamber

Question

15:07

Tabled by

[Baroness Donaghy]

To ask Her Majesty’s Government what steps they are taking to ensure the sustainability of funding for women’s refuges.

[Baroness Nye (Lab)]

My Lords, on behalf of my noble friend Lady Donaghy, and with her permission, I beg leave to ask the Question standing in her name on the Order Paper.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, since 2014 the Government have invested £33.5 million in domestic abuse services. On 10 November we announced a further £22 million for 2018-20. My department is also conducting a review of how domestic abuse services are locally commissioned and funded across England. We are working closely with domestic abuse key partners to develop future sustainable delivery options for domestic abuse services, including refuges.

[Baroness Nye]

I thank the Minister for that Answer, but he will know that applications by cash-strapped local authorities far exceeded the money available, which is simply not enough to deliver what the Government have promised, especially in the light of the forthcoming domestic violence and abuse Bill. This also creates a cliff edge in 2020, which threatens the sustainability of services. Will he support calls by Women’s Aid, the House of Commons Select Committee, the Home Affairs Select Committee, and others, to make refuge provision a statutory obligation, backed by national ring-fenced funding, and to make long-term sustainable funding a priority in the forthcoming spending review?

[Lord Bourne of Aberystwyth]

My Lords, it is worth noting that the recent announcement I referred to funded 63 projects around the country, involving 254 local authorities, and has provided not just security for the 25,000 existing beds but an additional 2,200 bed spaces. The noble Baroness is right about the challenges. That is why I referred to the ongoing review of how we fund these services across England. She is also right about the importance of the domestic abuse Bill, which my right honourable friend the Prime Minister referred to in Prime Minister’s Questions today, pledging that it would be brought forward in this Session.

[Baroness Burt of Solihull (LD)]

My Lords, across the United Kingdom support for refuges is funded in numerous complex and insecure ways. It is a postcode lottery, and refuges are spending an inordinate amount of time bidding for money to keep going, instead of caring for the traumatised women and children who they have been able to admit. In 2016-17, 60% had to be turned away. Will the Government commit to work with Women’s Aid and other organisations to create a new model of sustainable funding for a national network of specialist women’s refuges?

[Lord Bourne of Aberystwyth]

My Lords, first, we do, of course, work with Women’s Aid, which is a key partner. It welcomed—with reservations, to be fair—the recent announcement of the 63 projects that I have referred to. We also work with other organisations in the sector—Refuge, SafeLives and Imkaan, for example. I again refer to the ongoing review, which is important—but as things stand we fund quite a range of different ways of providing refuges: it is not one size fits all. This is ongoing work, and that important review is forthcoming.

[Baroness Butler-Sloss (CB)]

My Lords, I declare my interest as set out in the register. May I remind the Minister of the importance of looking after a particular group, the victims of forced marriage, many of whom are under 18 and need rather more specialist care than many refuges can give them?

[Lord Bourne of Aberystwyth]

My Lords, the noble and learned Baroness is right about the complex needs of victims of forced marriage. They are catered for in those 63 projects, as are other groups with complex needs. The noble and learned Baroness is absolutely right.

[Baroness Barran (Con)]

My Lords, can my noble friend confirm that any plans to fund accommodation-based services will focus not only on emergency provision, such as in a refuge, but on move-on accommodation? There are too many women, particularly in London, who cannot move on from a refuge because of a lack of move-on accommodation, and therefore women who need refuge urgently cannot access it.

[Lord Bourne of Aberystwyth]

My Lords, my noble friend, who has done much work in this area, particularly with SafeLives, is right about the importance of the range of different ways, which I just referred to, of providing refuge services. She is right about the particular needs that need to be catered for, and we have sought to do that in the current funding round. For example, we are funding a three-borough initiative—Westminster, Kensington and Chelsea, and Hammersmith and Fulham—which is providing a range of different ways of providing protection for victims of domestic abuse. My noble friend is absolutely right.

[Baroness Afshar (CB)]

My Lords, what specific measures are the Government taking in regard to Muslim women? I declare my interest as the honorary president of Muslim Women’s Network UK. Not only do they have to be protected from violence; they need specific arrangements and specific spaces which they consider clean for praying, as well as protection from the men in their own families. What arrangements are made for them?

[Lord Bourne of Aberystwyth]

The noble Baroness is right about the particular needs of that community, which she has just outlined. It was a group specifically identified in the bids that we have just been honouring in the 63 projects. I will write to her on the specifics of that, but the BME and the Muslim communities were identified as being in particular need in those bids.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I refer to my relevant interest as a vice-president of the LGA. Since 2010, specialist refuges have been cut by one-fifth. As the noble Baroness, Lady Burt, said, 60% of referrals to refuges by Women’s Aid are refused due to lack of bed space. That means that 90 women and their dependent children are turned away every day. Is the Minister saying that the money he referred to in his earlier answer will replace those cuts? If not, why are the Government not doing more?

[Lord Bourne of Aberystwyth]

My Lords, I said that there is work still to be done—I think I used those very words. Part of that is, of course, the funding review that is going on at the moment. I also said that an additional 2,200 bed spaces have been created and there have been some specific projects. The noble Lord mentioned women turned away. There is a No Woman Turned Away project which ensures that people have caseworker support. There is still more to be done—I would not argue with that point—but progress has been made on these projects, and progress will be made with the funding review.

Brexit: Economic Effects

Wednesday 21st November 2018 Lords Chamber

Question

15:14

Asked by

[Baroness Quin]

To ask Her Majesty’s Government what recent discussions they have had with the Chambers of Commerce and Confederation of British Industry representatives in the United Kingdom’s regions and nations about the economic effects of Brexit.

[The Minister of State, Department for International Development (Lord Bates) (Con)]

My Lords, the Government continue to engage with business groups, including the CBI and the British Chambers of Commerce, on the economic effects of EU exit across the UK’s regions. We remain committed to ensuring that the views of business are reflected in our approach to Brexit, and businesses have responded positively to the draft of the withdrawal agreement published last week.

[Baroness Quin (Lab)]

My Lords, the Government announced in the other place on Monday that they would publish an economic and fiscal analysis of the effects of Brexit. In this House the Minister and his ministerial colleague, the noble Lord, Lord Callanan, have also said that there will be updated impact assessments of the effects of Brexit on our regions and nations. In view of the Prime Minister’s proposed deal, and also of the continuing concerns of business, can the Minister give us some outline of the timetable for publishing this additional information?

[Lord Bates]

Yes, I can. The position will be contingent on the outcome of the Council, but if there is agreement there on the proposal put forward in the withdrawal agreement, and also on the crucial element of political declaration on the future partnership, we would expect to produce that analysis and put it in the public domain next week.

[Baroness Kramer (LD)]

My Lords, yesterday the FT City Network—a forum of more than 50 senior city figures—spoke out in favour of a people’s vote. Another wave of City members wrote to the FT today with exactly the same message. The IoD, to its own surprise, found that a survey of its members produced a majority in favour of a people’s vote. Will the Government finally consider a people’s vote? For business, while no deal would be a catastrophe, the proposed May deal is so second-rate that it diminishes them.

[Lord Bates]

Talking to the British Chambers of Commerce, CBI and all the business organisations, I find that the one thing they all want is for a deal to be done. They want certainty. They want to understand where they are so that they can continue to trade and move forward. That is what the Prime Minister has put before us, that is what the Cabinet has agreed, and that is what we hope will be agreed at the European Council next week. That is the best way forward for Britain, and it is the best way forward for business.

[Lord Cormack (Con)]

My Lords, if we want clarity and certainty, all that a so-called people’s vote can do is prolong the agony, deepen the division and make it far more difficult to come to a sensible conclusion.

[Lord Bates]

I agree wholeheartedly with my noble friend.

[Lord Davies of Oldham (Lab)]

My Lords, the Minister’s Answer to my noble friend Lady Quin was somewhat elliptical and roseate in hue. When we come to the question of the Commons having to consider the issue of the meaningful vote, is it not the case that the Minister in the Commons confessed on Monday that the economic analysis would of course depend on aspects of withdrawal, but with Britain still a full member of the European Community? How on earth can that prove to be realistic in people’s judgment on the withdrawal position?

[Lord Bates]

That was the decision that Members of the other place came to in the debate on Monday. They introduced Amendment 14 to the Finance Bill, which called on the Government to consider the long-term costs and benefits of moving to a new trading relationship with the EU and the rest of the world. The Exchequer Secretary said:

“I am happy to confirm that the baseline for this comparison will be the status quo—that is, today’s institutional arrangements with the EU”.—[Official Report, Commons, 19/11/18; col. 661.]


So we are doing what we have been asked to do by the other place.

[Baroness Lister of Burtersett (Lab)]

My Lords, in a statement last week, the UN rapporteur on extreme poverty and human rights said that Ministers were treating,

“the impact of Brexit on … poverty”,

as “an afterthought”. What assessment are the Government making of the likely impact of Brexit on the very high poverty levels in this country?

[Lord Bates]

Many people looked at the special rapporteur’s response, but also at the fact that the number of people in poverty has been steadily falling, that the number of children in poverty has been steadily falling, that employment is at record levels, that growth is on the up, that inflation is on the down, that our exports are rising and that growth and opportunity are there for jobs and education—which are the best routes out of poverty.

[Lord Foulkes of Cumnock (Lab)]

My Lords, can I just clarify something? Is it not the case that people such as the noble Lord, Lord Cormack, and the CBI, are only now cosying up to the deal proposed because they are absolutely scared—I was about to say “something” scared, but I had better not—of the alternative of no deal? The reality is that, all around the country, a momentum—if noble Lords will excuse the word—is growing in favour of a people’s vote. In a democracy, three years after a previous referendum, and now that we know what the conditions are and what the whole process involves, what is wrong with giving the people another say?

[Lord Bates]

In a democracy we had a people’s vote, which was the referendum—and the Government were re-elected on another people’s vote.

[Noble Lords]

Oh!

[Lord Bates]

Both the noble Lord’s party and mine stood on a platform of honouring the people’s vote that took place in 2016. We are now on the brink of an agreement which can remove the uncertainty so that this country can move forward, and that is why we are supporting it.

[Lord Deben (Con)]

Would my noble friend reconsider that answer? After all, we had an election, and then two and half years later we decided that there was a chance for the people to have another vote on that. So merely to say that we have had a vote is not to say that we should never have a vote again. Is not the problem that the deal that has been done puts Britain into a significantly worse position than we are in as a member of the European Union?

[Lord Bates]

No, I do not accept that premise. If that were the case, we would not still be the number one location in Europe for foreign direct investments, or judged by Forbes to be the number one place to do business in 2018, which we are, and our exports would not be rising. The reality is that people want to remove the uncertainty, and to do that, we need to get behind this deal and get it done.

[Lord Mackay of Clashfern (Con)]

My Lords, if Parliament cannot find a solution to this problem in relation to the European Union, is it necessary to have the delay and likely disagreement of another vote? The last vote was of course a people’s vote, and to describe the next one as a people’s vote does not seem to be a particularly advantageous description. However, if Parliament cannot solve this problem, surely the next thing to do is to propose a Motion that we stay in the European Union?

[Noble Lords]

Oh!

[Lord Bates]

I was with my noble and learned friend all the way until just before the end. There will be a meaningful vote, which we promised and which will happen some time in December, and then this place and the other place can make their views known on the proposed agreement. I very much hope that they will come in behind it and behind the Prime Minister so that we can move on and see it implemented.

Saudi Arabia: Human Rights

Wednesday 21st November 2018 Lords Chamber

Question

15:23

Asked by

[Lord Hoyle]

To ask Her Majesty’s Government what is the outcome of their recent talks with the government of Saudi Arabia about human rights in that country.

[Baroness Goldie (Con)]

My Lords, the UK regularly discusses human rights with the Government of Saudi Arabia, including individual cases. Saudi Arabia remains a Foreign and Commonwealth Office human rights priority country, as detailed in the annual Human Rights & Democracy Foreign and Commonwealth Office report. The Foreign Secretary travelled to Saudi Arabia to discuss a range of issues, including the murder of Jamal Khashoggi, and we work with international partners to raise issues through the international system.

[Lord Hoyle (Lab)]

I thank the Minister for that reply, but Saudi Arabia continues to detain people without charge for indefinite periods and—as she said, Khashoggi was murdered in the consulate in Turkey—in addition to that, it continues to oppress people in every sense of the word. Why do we continue to dither and pussyfoot about with this aristocratic, reactionary and despicable regime? Why do we not impose sanctions on it?

[Baroness Goldie]

My Lords, I can understand there is a range of passionately felt views about Saudi Arabia. Certainly, the United Kingdom has always regarded that country as an important ally for reasons that I know the noble Lord will understand. Equally, as with a relationship with any ally or friend, we feel able to express frankly our concerns. The Foreign Secretary, on his recent visit to Saudi Arabia, made very clear his concerns across a range of issues, not least the very distressing situation of Mr Khashoggi’s murder. We regularly raise with Saudi Arabia our concerns about human rights, and the noble Lord will be aware that the recent United Nations universal periodic review of Saudi Arabia took place on 5 November. He will know that a very strongly worded letter went from the UK permanent representative with a number of recommendations, all of which had at their heart respect for and implementation of human rights.

[Lord Lamont of Lerwick (Con)]

My Lords, will the Minister confirm that the Government, like the United States Government and the French Government, have actually received the tapes of the recording of Mr Khashoggi’s murder in the consulate? What conclusions have they come to about those tapes? Is the Minister aware that the Saudi authorities have named the people whom they think were responsible for Mr Khashoggi’s murder? Will the Government monitor the trial of those people to make sure that it is fully transparent and that those people are not executed as a cover-up for somebody else?

[Baroness Goldie]

In relation to my noble friend’s first question, we do not comment on intelligence matters, as I think he will understand. Given the recent disclosures by Saudi Arabia in relation to the court proceedings against 11 people, the United Kingdom Government will monitor carefully how that trial proceeds. It is a sovereign, independent country with an independent justice system, but we will watch carefully what takes place. The noble Lord will be aware that we have said repeatedly that we are totally opposed to the use of the death penalty in any circumstances.

[Lord Singh of Wimbledon (CB)]

My Lords, as revealed in this morning’s news, President Trump has made it clear that, as far as he is concerned, considerations of trade are more important than human rights in Saudi Arabia. Can the Minister confirm that our Government do not share the same callous view?

[Baroness Goldie]

If the noble Lord is suggesting that, for some reason, the UK would prioritise trade over human rights, that would absolutely not happen. The relationships that we build with countries, including Saudi Arabia, through trade and security links and through bringing together institutions such as educational research establishments allow us to make greater progress with those countries on the issue of human rights.

[Baroness Northover (LD)]

My Lords, following that question, is the Minister as sickened as I am by President Trump’s position that jobs would be at stake if he held Saudi Arabia to account? Does she see a read-across to the case that we have heard about today of Matthew Hedges, who was jailed for life after a five-minute trial in the UAE? Does she agree that human rights must be defended whatever our apparent economic interest?

[Baroness Goldie]

Human rights must always be defended, and I have already made clear both in my initial response to the noble Lord, Lord Hoyle, and in my subsequent answers the huge importance that we attach to human rights. This is not just a token importance but an importance underpinned by the actions that we take and the discussions that we have and the things that we attempt to do. We are regarded as being a very prominent global player in that respect. It is absolutely vital that we are proud of what the United Kingdom does in that field. We endeavour, whenever possible, to raise these issues and to do so in a constructive fashion.

[Lord Collins of Highbury (Lab)]

My Lords, yesterday Amnesty International and Human Rights Watch highlighted the torture of human rights activists in prison in Saudi Arabia. Last night, I met representatives from Reprieve, which announced that the death penalties on 12 human rights activists—people standing up for their human rights—have been confirmed. Will the Minister tell us today that the United Kingdom Government will make a public statement condemning those death penalties, which I understand could take place today or tomorrow?

[Baroness Goldie]

We have been clear about our concern regarding these 12 men; we are extremely concerned about reports that these executions may be imminent. We have raised these concerns with the Saudi authorities as recently as 20 November. As I say, the UK opposes the death penalty in all respects. The other issue that the noble Lord raises is a very distressing one; I think he is referring to the allegations of torture of female activists. Of course we are concerned about these allegations. It is a horrible situation, and we consistently and unreservedly condemn torture and cruel, inhumane or degrading treatment. We have raised these concerns and these cases at ministerial level with the Saudi authorities a number of times, and we will continue to do so following these allegations.

Cyberattacks

Wednesday 21st November 2018 Lords Chamber

Question

15:30

Asked by

[Lord Haskel]

To ask Her Majesty’s Government what steps they are taking to protect the United Kingdom’s critical infrastructure from cyberattacks.

[Lord Young of Cookham (Con)]

My Lords, ensuring that our critical national infrastructure—CNI—is secure and resilient against cyberattack is at the heart of our 2016 national cybersecurity strategy. The National Cyber Security Centre we established has improved our understanding of the threat and provided a unified source of advice and support. We have also strengthened regulatory frameworks across much of the CNI to ensure that cyber risk is managed in the national interest.

[Lord Haskel (Lab)]

I hear what the Minister says, but I do not think he will satisfy the committee. It defined the Government’s current position as,

“long on aspiration and short on delivery”.

It says that the Government have failed to match the increasing threat with improved cyber resilience in both the public and private sectors and that it finds a lack of expertise to provide credible insurance. It would like to see a Minister appointed to ensure that there is capacity. Putting this right will require a lot more than money and good intentions. Will the Government take steps to carry out the report’s proposals?

[Lord Young of Cookham]

The noble Lord will be aware that this is a substantial report published two days ago by the Joint Committee on the National Security Strategy, with 22 senior Members of both Houses. It has 10 major recommendations and the Government will want to respond to those in due course. The noble Lord quoted a little from the report and, just to add some balance, may I also quote from it? It said:

“Many of those who submitted written evidence … welcomed the step change in Government approach in the 2016 NCSS, with some describing the strategy—and the activity it underpins—as world-leading. This appears to be borne out by the notable level of international interest in the UK’s approach to cyber security”.


That gives a somewhat more balanced response than what the noble Lord quoted. There are many recommendations. One is that there should be one Minister; the committee wants what it calls a collective mind—a somewhat Orwellian concept. If we look at the building blocks of national security, we have GCHQ, which is under the Foreign Office; the Home Office, with overall responsibility for protecting the citizen if there is a cyberattack; the Ministry of Defence, which is in charge of offensive cybersecurity; and the Cabinet Office, which is in charge of CNI. It is very difficult to have a collective mind. What is important is having a collective strategy that all the Government agree to, underpinned by substantial resources and supervised by the National Security Council, chaired by the Prime Minister. That is more important than having what the committee calls a collective mind.

[Lord Fox (LD)]

My Lords, in last month’s debate on cybersecurity, the noble Lord, Lord Ricketts, in an authoritative speech, mentioned that the former Attorney-General, Jeremy Wright, had made clear that existing international law, including the UN charter, covers the cyber activities of states; this was the view not just of British experts but of Chinese and Russian experts in 2015. In his reply, the Minister outlined some activities round the Commonwealth that sought to exploit this international law but was uncharacteristically undefined about which other institutions the Government are working on. Which other international institutions are the Government working with which are seeking to exploit existing international law to combat this state-sponsored cybercrime?

[Lord Young of Cookham]

The noble Lord cited the noble Lord, Lord Ricketts. In that debate, he said that Britain is very fortunate to have a world-leading centre of excellence in the National Cyber Security Centre. We believe that the existing legislation is adequate. We co-operate with a range of international partners— Five Eyes and others. I hope the noble Lord will understand that the Government want to reflect on the recommendations in the report and will respond in due course, including to the legal issues that the noble Lord has just raised.

[Baroness Couttie (Con)]

My Lords, what would be the impact of a no-deal Brexit on cybersecurity in this country?

[Lord Young of Cookham]

The Government have made it absolutely clear that we want to maintain the broadest possible co-operation with our EU partners. We want to continue to share information with security institutions in the EU. We want to go on, with them, to develop cyber resilience so that we can continue to protect our collective security, values and democratic institutions. We believe that it is in their interests, as much as ours, that this should happen, irrespective of what happens to Brexit.

[Lord West of Spithead (Lab)]

My Lords, the Minister will be aware that GCHQ has recently said that it can no longer guarantee the security of UK circuits that have Huawei equipment in them. How are we to take this forward now, bearing in mind that removing all Huawei gear from our systems is almost impossible, as is moving towards 5G without involving Huawei? We need a Minister in the Cabinet Office responsible for this.

[Lord Young of Cookham]

The noble Lord raises an important issue: how one balances the need for inward investment and to have cutting-edge technology available without jeopardising the security of our institutions. He will know that we have a mitigation strategy to deal with Huawei, which is advised by NCSC—the National Cyber Security Centre. Our approach makes sure that, where we use equipment supplied by overseas countries, our security is not compromised. The mitigation strategy is kept under constant review.

[Lord Harris of Haringey (Lab)]

I declare an interest as a member of the Joint Committee. Further to the noble Baroness’s question, in the event of the noble and learned Lord, Lord Mackay of Clashfern, being unsuccessful and our leaving the European Union next year, will we continue to abide by the EU network and information systems directive? If so, how will we continue to make sure that it is kept in line with the situation in Europe? Will we be part of the intelligence system associated with it?

[Lord Young of Cookham]

The answer to the first question is yes. We implemented the NIS directive in May this year, one of the first countries so to do. We will continue to honour the directive after 29 March next year. On the broader question about the future relationship, I can only refer the noble Lord to what I said a few moments ago about the Government’s intention to maintain broad co-operation and that it is in the EU’s interests as much as ours that that should continue.

Centre for Data Ethics and Innovation

Wednesday 21st November 2018 Lords Chamber

Statement

15:38

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, with the leave of the House, I shall now repeat a Statement made yesterday in the other place by my honourable friend the Minister for Digital and the Creative Industries. The Statement is as follows:

“Mr Speaker, with permission, I would like to make a statement on the Centre for Data Ethics and Innovation. The UK has a proud history of supporting the use of open data. Indeed, there has been a huge programme of work in recent years to make sure we are promoting the open and transparent use of data. The Government are in a privileged position, as we collect a vast quantity of high-quality data while delivering public services. As the UK moves rapidly towards a data-driven economy, we have an opportunity to improve decision-making in many areas.

The Government have already published over 44,000 datasets. This unprecedented openness has created many benefits. First, it has made the Government more accountable and transparent. Secondly, it can improve the effectiveness of public services. Thirdly, it has created the potential for new businesses to thrive. By making our data available to the public, we have been able to fuel businesses and applications that make life better and easier. All this has paid dividends.

We are now ranked joint first in the world on the open data barometer, an achievement of which we can justly be proud. While open data is something we must aspire to, we also need to use it in a safe and ethical manner. The rise of artificial intelligence-driven products and services have posed new questions that will impact on us all. What are the ethical implications of using technology to determine someone’s likelihood of reoffending?

Is it right to use a programme powered by AI to make hiring decisions? Can it ever be right to have an algorithm influence who should be saved in a car crash? These are no longer questions for science fiction but real questions that require clear and definite answers, where possible from policymakers. That is why we have established the Centre for Data Ethics and Innovation, because ethics and innovation are not mutually exclusive. Strong ethics can be a driver of innovation. It is our intention that the centre become a world-class advisory body to make sure that data and AI deliver the best possible outcomes for society, in support of their ethical and innovative use.

Following a consultation over the summer on the activities and work of the new centre, we are pleased to publish our response today. This is the first body of its kind to be established anywhere in the world and represents a landmark moment for data ethics in the UK and internationally. Throughout the consultation, respondents recognised the urgent need for the centre and there was widespread support for its objectives: to advise government on the necessary policy and regulatory action and to empower industry through the development of best practice.

In turn, we can build public trust in data-driven technologies and make the most of the opportunities they present for society. We have announced that Roger Taylor will chair the board. Roger has a background in consumer protection, founded Dr Foster—a healthcare data company—and is a passionate advocate for using data to improve lives. I know that he will do an excellent job. We have today announced the board members who will support Roger in this essential work. The board will include: Lord Winston, a world-renowned expert in fertility and genetics; Kriti Sharma, vice-president of AI at Sage and a leading global voice on data ethics; and Dame Patricia Hodgson, who was chair of Ofcom and brings a wealth of experience of regulatory affairs.

The board will bring together some of our greatest minds and their immense and varied experience to tackle these important issues. Data is the fuel of any digital economy, and trust in that data is fundamental. As a nation we have always been pioneers and advocates of transparency and freedom, and we will keep applying these values as we look at how we can make the most of the data that is multiplying in scale and sophistication.

The great challenge of the digital age is to ensure that data is used safely, ethically and, where possible, transparently. If we do that, we can help to power new technologies that will make life better and solve issues that are currently of grave concern. This is truly within our grasp and if we work together, we can make it happen.

I commend my Statement to the House”.

I follow the Statement by saying that I think the House will be pleased to know that, in addition to the noble Lord, Lord Winston, the board will include my noble friend Baroness Rock and the right reverend Prelate the Bishop of Oxford, who were members of the House of Lords Select Committee on Artificial Intelligence, chaired by the noble Lord, Lord Clement-Jones.

15:43

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement made elsewhere. He was present for part of the debate on artificial intelligence on Monday. On reflection, it is a bit surprising that the Government were not able to accelerate the announcement of this new body. It would have helped a lot in that debate. No doubt the tyranny of the grid is to blame again, but many of us would have felt the benefit had we known, not least, that the membership of the board had been enhanced by those Members of your Lordships’ House already referred to.

To go back in history a bit, the Centre for Data Ethics and Innovation came out of amendments we proposed during the passage of the Data Protection Bill, but it was built on excellent work by the Royal Society and others. We should pay tribute to the groundwork that led to today’s announcement. Those amendments had a lot of support from around the House and would have gone into the Bill had we been able to push them further, but we could not get them within the bounds of the Bill’s framing. We should say clearly that the model we had in mind then was the independent Human Fertilisation and Embryology Authority. In preparing the thinking in this new area of advanced technology and data processing and protection, one needed a carefully balanced body that could regulate in the context of difficult ethical issues raised by research and development.

I will now ask a number of questions about the body itself, and I hope that the Minister will respond, in writing later if not now. The body was originally intended to be an independent statutory body, but it is not because no powers have yet been established. What is the progress on that? The reports I have read suggest that that is still an objective of the Government, although they are making a virtue of the fact that it is an advisory committee in the interim period. In some senses, they will probably be judging its success, which is a bit worrying given that the whole benefit would be that it was independent of government, long-term and able to look without fear or favour at the big issues. If it is an advisory committee of the department, how independent will it be in practice? Is funding secured? Can it spend what it needs to get the research and advice it needs? How much of the original thinking about the HFEA remains? As an advisory committee, can it request information? One problem is the difficulty of extracting information from the behemoths that populate the international information society.

The press release rightly describes the membership as “stellar”. Given the names already mentioned here, I think we should recognise that. I confess that my application was weeded out very early in the game. This was unfortunate, because I would have been delighted to be part of that. Having seen the full list and heard why they were chosen, it is clear that the right decisions have been reached and I bear no malice to those responsible—honest. If the membership question comes up later, I am still around.

In the absence of the new centre starting up, we have only two or three areas of activity. We have a statement as a result of the consultations that took place. It talks about the focuses being to provide clear guidance and regulation and to lead debate about how data can be used in the future. But there are still some problems that need to be resolved, and I will be interested to hear the Minister’s comments. The AI report we discussed at length in a very good debate on Monday, when there were notable speeches from the right reverend Prelate the Bishop of Oxford and the noble Lords, Lord Reid and Lord Browne, shows the range of issues that are going to be up for discussion. These are very abstruse areas of intellectual activity such as ethics and the nature of machines—whether they are responsible for their actions and, if so, how any redress can be obtained. The noble Lord, Lord Browne, posed questions about intelligent weapons and what controls must be placed on them. It is a very stretching agenda. All we know is that issues currently in the list include data trusts, algorithms and consumer experiences. I do not think there will be a shortage of those. Can the Minister explain what the process will be? I gather an overall strategy document will be revealed.

There are some concerns about the balance between advice and regulatory action. I think the plan would be for advice to be offered to government and regulatory action to be taken by existing or other bodies. Could we have confirmation of that? There is a question about the balance between ethics and innovation. Clearly, innovations are difficult to support if they raise big ethical issues too quickly; they often need to be tested over time and analysed. It would be useful if there were a way forward on that. Of course, there is the whole question of how the Government intend to treat public data, its use and value for money, and the extent to which it will be available.

Lastly, the new centre, which I wish extremely well, enters a rather crowded space with the Information Commissioner’s Officer, Ofcom and the CMA, all of which have statutory functions in this area, but perhaps I may counsel that also to come are the Alan Turing Institute, which is now up and running, and the Open Data Institute. Therefore, there will be a need for some time for this whole process to settle down and for leadership from the Government on how it will work.

The responses to the consultation showed a clear public wish for consistency and coherence, and I hope that in that process there will be room for consultation. I do not wish the new body to be a proselytiser for data or indeed for artificial intelligence, but there is a difference between proselytising and being in an explanatory mode, reassuring people and explaining to them the benefits as well as the risks of this new technology. The centre needs to be public facing and fully engaged in that process, and I wish it well.

[Lord Clement-Jones (LD)]

My Lords, I too thank the Minister for repeating the Statement. He was missed in the debate on Monday. I have had the benefit of reading the Government’s response to the consultation on the Centre for Data Ethics and Innovation. I share the enthusiasm for the centre’s creation, as did the Select Committee, and, now, for the clarification of the centre’s role, which will be very important in ensuring public trust in artificial intelligence. I am also enthusiastic about the appointments—described, as the noble Lord, Lord Stevenson, said, as “stellar” in the Government’s own press release. In particular, I congratulate Members of this House and especially the noble Baroness, Lady Rock, and the right reverend Prelate the Bishop of Oxford, who contributed so much to our AI Select Committee. I am sure that both will keep the flame of our conclusions alive. I am delighted that we will also see a full strategy for the centre emerging early next year.

I too have a few questions for the Minister and I suspect that, in view of the number asked by me and by the noble Lord, Lord Stevenson, he will much prefer to write. Essentially, many of them relate to the relations between the very crowded landscape of regulatory bodies and the government departments involved.

Of course¸ the centre is an interim body. It will eventually be statutory but, as an independent body, where will the accountability lie? To which government department or body will it be accountable? Will it produce its own ethics framework for adoption across a wide range of sectors? Will it advocate such a framework internationally, and through what channels and institutions? Who will advise the Department of Health and Social Care and the NHS on the use of health data in AI applications? Will it be the centre or the ICO, or indeed both? Will the study of bias, which has been announced by the centre, explore the development of audit mechanisms to identify and minimise bias in algorithms?

How will the centre carry out its function of advising the private sector on best practice, such as ethics codes and advisory boards? What links will there be with the Competition and Markets Authority over the question of data monopolies, which I know the Government and the CMA are both conscious of? In their consideration of data trust, will the government Office for Artificial Intelligence, which I see will be the responsible body, also look at the benefits of and incentives for hubs of all things? These are beginning to emerge as a very important way of protecting private data.

What links will there be with other government departments in giving advice on the application of AI and the use of datasets? The noble Lord, Lord Stevenson, referred to lethal autonomous weapons, which emerged as a major issue in our debate on Monday. What kind of regular contact will there be with government departments—in particular, with the Ministry of Defence? One of the big concerns of the Select Committee was: what formal mechanisms for co-ordinating policy and action between the Office for Artificial Intelligence, the AI Council, the Centre for Data Ethics and Innovation and the ICO will there be? That needs to be resolved.

Finally, the centre will have a major role in all the above in its new studies of bias and micro-targeting, and therefore the big question is: will it be adequately resourced? What will its budget be? In the debate on Monday, I said that we need to ensure that we maintain the momentum in developing our national strategy, and this requires government to will the means.

[Lord Ashton of Hyde]

I am tempted to say that I will write, but I will try to answer some of the questions, and I will write regarding some that I do not get around to. I was in at the beginning of the debate on AI and I listened to the noble Lord’s speech.

[Lord Clement-Jones]

My Lords, that is all that he needed to listen to.

[Lord Ashton of Hyde]

Not everyone would agree with that, but I did indeed listen to it. I have read that AI is a joint responsibility with BEIS, and my noble friend Lord Henley coped more than adequately, so I do not think that I really was missed.

There was a great deal of support for this innovation—the centre—both in the response to the consultation and, as the noble Lord, Lord Stevenson, said, in proceedings on the then Data Protection Bill, so I am grateful for that today, but I accept the very reasonable questions. On the centre’s independence as it stands now and its statutory establishment, I say that we have deliberately set this up as an advisory body so that it can consider some of the difficult issues that noble Lords have raised. Policy is the Government’s responsibility, so there should not be any confusion about who is held accountable for policy—and it is not the Centre for Data Ethics and Innovation. When this has been established, when we have seen how it has worked and when we have addressed the questions of the crowded space that both noble Lords mentioned, it is our intention to put this on a statutory basis. Then we will see how it has worked in practice. When it comes to putting it on a statutory basis, I have no doubt that there will be lots of back and forth in Committee and things like that on the exact definitions and its exact role.

There are some differences from the Human Fertilisation and Embryology Authority, although of course that was a particularly successful body. One of the main differences was that a lot of those things were considered in advance of the science, if you like, and before the science was put into place. With AI, it is here and now and operating, so we do not have a chance to sit back, think about it in theory and then come up with legislation or regulation. We are dealing with a moving target, so we want to get things going.

As far as I am aware—I will check and write to the noble Lord, Lord Stevenson—the centre has no specific powers to demand information. That is, of course, something that we can look at when it comes to being on a statutory basis.

I am sorry that the application for membership by the noble Lord, Lord Stevenson, was not accepted. There can be only one reason: he spends so much time on the Front Bench that he would not have time, because we expect the directors to spend two to three days a month attending this, so it is a very large work commitment.

As noble Lords will know, the work plan includes two initial projects, which were announced in last year’s Budget: micro-targeting and algorithm bias. We expect the centre, in discussion with the Secretary of State, to come up with a work plan by spring 2019. As the noble Lord, Lord Stevenson, mentioned, there is a tension, if you like, between ethics and innovation, but we are very keen that it consider both because we have to be aware of the potential for innovation, which is constrained in some cases. We would not want a situation where the opportunities for AI for this country are avoided. As the report by the noble Lord, Lord Clement-Jones, made clear, there are tremendous opportunities in this sector. We are aware of the tension, but it is a good tension for the centre to consider.

Both noble Lords talked about the crowded space in this area. We expect the centre to produce memorandums of understanding to outline how it relates to bodies such as the AI Council, which has a slightly different focus and is more about implementation of the AI sector deal than considering the ethics of artificial intelligence. We understand that they need to work together and expect the centre to come back on that.

The noble Lord, Lord Clement-Jones, asked about accountability. The centre will be accountable to the Secretary of State for the DCMS. That is clear. He will agree its work plan. Of course, in terms of independence, once he has established that work plan, what the centre says will not be up to him, so there is independence there. We included in our response that the Government will be expected to reply within six months, so there is a time limit on that. It will apply to all government departments, not just the DCMS. The Ministry of Defence and the department of health have obvious issues and the centre can provide advice to them as well.

The noble Lord, Lord Clement-Jones, asked whether the centre, when it considers bias, would include audit mechanisms. It absolutely might. It is not really for us to say exactly what the centre will consider. In fact, that would be contrary to its independence, having been given the subject to think about. In our response we said some of the things that might be considered, such as audit mechanisms.

There is an obvious issue about competition, which the House of Lords Select Committee mentioned. Work is going on. The Chancellor commissioned the Furman review to look at that and we expect the centre to come up with a discussion on how it will work with the Competition and Markets Authority, but obviously competition is mainly to do with the Competitions and Markets Authority.

At the moment, the body is resourced by the DCMS. In the 2017 Budget, it was provided with £9 million in funding over three years. We expect that to be sufficient but, clearly, we will have to provide adequate resources to do an adequate job.

16:03

[Lord Harries of Pentregarth (CB)]

I thank the Minister for the Statement and his responses. I am delighted that one of my successors as Bishop of Oxford has been appointed to the centre’s board. I know that with his experience and background he will make a very valuable contribution to it.

Is there an academic moral philosopher on the board? I ask as a former member of the Nuffield Council on Bioethics and the HFEA. It was always thought valuable, particularly with the Nuffield Council on Bioethics, to have a philosopher or two on board. It is not that they will come up with a better answer than anybody else—their judgment is neither better nor worse than anybody else’s—but an academic philosopher can tease out unexamined assumptions. So many of these agreements and disagreements on ethics are about the assumptions that need to be teased out and looked at. I have not had a chance to look at the document yet, I am afraid, but perhaps I could ask that question.

[Lord Ashton of Hyde]

I am glad to say that there will be. Professor Luciano Floridi is Professor of Philosophy and Ethics of Information at the University of Oxford—so another Oxford man.

[Lord Maxton (Lab)]

My Lords, is it not correct that the centre’s name is the wrong way round? It ought to be the advisory committee on digital innovation and ethics, because the innovation will drive the ethics rather than the other way round.

[Lord Ashton of Hyde]

The board of the centre will be able to cope with whichever way round the wording is. It will deal with the balance and the tensions between ethics and innovation—and indeed innovation and ethics.

[Baroness O’Neill of Bengarve (CB)]

My Lords, yesterday evening the British-American Parliamentary Group and Ditchley met to discuss these topics. It was an interesting meeting, but it did reveal how readily innovation drives ethics. I say this as an academic philosopher, and it is quite important. The innovation questions are of great importance, but they are not the only questions, and I hope that steps will be taken to ensure that there is suitable rigour in the analysis of the ethical issues. The debate is full of pitfalls and inadequacies, including phrases such as “communication ethics” and “data ethics”, which ultimately mean nothing. Ethics is about what you do: it is not about data and communication. So I hope that there will be room for that sort of rigour on this advisory—and ultimately statutory—body.

[Lord Ashton of Hyde]

I completely agree with the noble Baroness. In dealing with modern technology, we often forget the very important point she makes. Ethics is about how you live your life and deal with things in a way that has a moral basis. I absolutely accept that, in dealing with modern technology and especially things such as AI, ethics is a very important component. That is precisely why they have also included not just technical people but parliamentarians and professional philosophers, to consider and to make sure that those aspects are given sufficient weight.

Mental Capacity (Amendment) Bill [HL]

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

Report (1st Day)

16:06

Schedule 1: Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Amendment 1

Moved by

[Lord O'Shaughnessy]

1: Schedule 1, page 5, line 26, at end insert—
“Part 8 contains transitory provision.”

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

My Lords, before I introduce this first group of what I hope are uncontroversial and technical amendments, I want to express my sincere thanks to all noble Lords who have been involved in a good deal of hard work between Committee and today in order to get the Bill into better shape. When we set out on this process at Second Reading, noble Lords had some concerns about the Bill, which crystallised in Committee. I think we have made a good deal of progress since then, which could not have happened without their contribution. I hope we are able to make similar degrees of progress today.

The amendments in this group straightforwardly make technical changes to the Bill. Amendment 1 reflects that transitory, or temporary, provision related to 16 and 17-year olds will be included in a new Part 8 of the schedule. Amendment 10 inserts a definition of “clinical commissioning group”. Amendment 148 removes an unnecessary provision regarding statutory instruments from the Bill. Clause 5(3) reflects that regulations under Clause 5 will be made by statutory instrument. However, Clause 5(7) already provides that regulations under Clause 5 are to be made by statutory instrument, so the words in Clause 5(3) are superfluous. I hope everyone can follow that—I promise it is straightforward and technical. On that basis, I beg to move.

[Baroness Thornton (Lab)]

That is quite right, they are technical.

Amendment 1 agreed.

Amendment 2

Moved by

[Baroness Tyler of Enfield]

2: Schedule 1, page 5, line 33, at end insert—
“(1A) For the purpose of paragraph 2(1)(b), arrangements which give rise to the deprivation of the cared-for person’s liberty are those in which—(a) the cared-for person is subject to confinement in a particular place for a not negligible period of time; and(b) the cared-for person has not given valid consent to their confinement.(1B) For the purpose of paragraph 2(1A)(a), a cared-for person is subject to confinement where—(a) the cared-for person is prevented from removing himself or herself permanently in order to live where and with whom he or she chooses; and(b) the dominant reason for the deprivation of liberty is the continuous supervision and control of the cared-for person, and not treatment for their underlying condition.”

[Baroness Tyler of Enfield (LD)]

My Lords, I draw the attention of the House to my interests in the register. Concern has been raised repeatedly throughout this Bill, both in this House and outside, that there is no statutory definition of what constitutes a deprivation of liberty. That is what this group is about. My amendment is designed to provide practitioners, families and the cared-for person with an agreed interpretation that is unambiguous as to where deprivation of liberty is enacted and a clear sense of understanding of to whom it should actually apply. Including a definition in the Bill would allow guidance and information to be developed for families and practitioners to allow them to make what I would call a real-world assessment of whether the care arrangements they are putting in place when their loved one lacks capacity amount to a deprivation of liberty. In many cases this will allow them to steer clear of depriving someone of their liberty, quite often unwittingly, because the line would be that much clearer.

I welcome the report on the Bill from the Joint Committee on Human Rights which was published on 26 October. It addresses clearly the need for a definition of the term “deprivation of liberty”, and of course raised other concerns as well. Unless we have a clear definition which is supported by parents, families will be at risk of the courts interpreting their personal situation in different ways. I know from the many briefings and correspondence I have received that this is strongly supported by the sector. Having looked at the report, noble Lords will be aware that the definition I have proposed is derived from the JCHR report. I believe that in fact two definitions are offered in the report and later we will hear from the noble and learned Lord, Lord Woolf, who is proposing the other definition. I am sure that he will put forward good arguments for doing so, given that he was a very distinguished member of the Joint Committee.

I have gone for the definition that I am proposing because I think it is simpler and easier. I think it best captures the recommendations made by the noble and learned Baroness, Lady Hale, in the Cheshire West case. She was clear that a definition was necessary in future primary legislation. As we have noted many times during the passage of this Bill, the test, which was referred to in the Joint Committee’s recommendation, references the case taken by the noble and learned Baroness, Lady Hale, Cheshire West and Chester Council v P in 2014. The key sentence she noted was that the person concerned,

“was under continuous supervision and control and not free to leave”.

Unless we have a statutory definition in the Bill, I strongly suspect that the question of what actually constitutes a deprivation of liberty will continue to have to be determined by reference to Article 5 of the ECHR and indeed will continue to come back to court for further clarification.

I shall say briefly that while it would be possible to include a definition in the code of practice rather than in the Bill itself, I do not think that that will satisfy a court. The best form of protection would come from the inclusion of a definition in the Bill itself. We are looking at this issue again in primary legislation partly because recent court rulings, including the Cheshire West case which I have already referred to, have radically changed who deprivation of liberty applies to and, frankly, have substantially increased the number of people it covers; hence the reasons we are here.

I hope very much that the Minister, who has listened carefully and, if I may say, responded constructively to many of the arguments that have been put forward both in Committee and since, will have something positive to say on this point. I recognise that the definition could do with some more work and I am sure that the Bill team could look at it and come back at Third Reading. However, if there are any fears of unintended consequences, my view is that a well-drafted definition will pose considerably less risk than having no definition at all, which leaves patients and practitioners exposed to different legal interpretations and subsequent consequences.

I conclude by saying that without a definition in the Bill, any future interpretation by the courts could lead to a wide range of outcomes for cared-for people and their families which could undermine the very essence of the new LPS scheme. That is what this Bill is all about. It seeks to provide clarity, but without a definition it simply will not do so. I beg to move.

16:15

[Lord Woolf (CB)]

My Lords, I am very grateful for the expectation about my contribution to this debate, which the noble Baroness, Lady Tyler, just referred to. I am only too conscious that I shall disappoint her, but I will do my best.

First, I must disclose an interest. I have a relative whom the Bill may affect. I am also a member of the Joint Committee on Human Rights. The noble Baroness, Lady Tyler, was quite right in everything she said about the committee’s report, which has something useful to say in connection to this. I hope the Minister will agree with that. I see him nodding his head and telling me that it is so.

I shall focus on the second amendment proposed by the committee, which supplements the one moved by the noble Baroness, Lady Tyler. It is designed to limit the unintended harm caused as a consequence of the Cheshire West case, which is not easy. That harm takes two forms: first, it has resulted in a huge increase in the number of people who will be caught by the Bill; secondly, it means that people who do not need the precise benefits normally available to those in their position are dragged into that protection to their disadvantage.

I shall try to describe the persons concerned. They are people who have problems that would fall within the context of the Bill, but are residing, possibly in their home or some other institution, somewhere where they are perfectly content and well looked-after. There is no problem in their case. I do not think it necessary to expand the burdens on the Treasury caused by people in their condition by including them, unless it can be shown that there is a real necessity. Although the language of the amendment proposed by the committee, to which I am speaking, is complex, if one reads it carefully it does not give rise to any difficulties, but it could have the ameliorating effects to which I have referred. For those reasons and those the noble Baroness has given, I commend this amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I should like to comment on these amendments. Before I do that, I thank the Minister on behalf of everyone for listening, as well as for his willingness to meet Peers and to move on the things that had caused enormous concern to many of us.

I have a couple of concerns regarding these amendments. I commend the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for trying to get us back to a definition. I completely agree that if we do not have a definition, the matter will go to court and we will end up back in a circle that we do not want to be in. The problem I see is the non-negligible period, which will be really difficult to define. If somebody is in a confined space for even 10 minutes or a quarter of an hour, that could be absolutely terrifying for them and completely unjustifiable. We have a difficulty in trying to use time as a measure, but I understand why it is there as well.

In his amendment, the noble and learned Lord, Lord Woolf, certainly includes the principle of consent, which means that there should be information that the person has capacity and that their care and treatment are voluntary. I was a little worried, however, that his proposed new paragraph 2(1B)(d) in the amendment, which would require two clinicians to confirm in writing, rather ran counter to the principles set out in Part 1 of the Mental Capacity Act itself, Section 1(2) of which states:

“A person must be assumed to have capacity unless it is established that he lacks capacity”.


It almost turns itself on its head if you must have somebody to verify that they have capacity.

I note that in his letter to us, the Minister stressed the importance of supporting liberty as much as possible and valid consent wherever possible. Would the Minister be prepared to say that we can work on this between now and Third Reading? If we can reach a definition that seems right by then, we will have done the whole community a great service.

[Baroness Thornton]

My Lords, I thank the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for bringing forward the amendments. I can see that the Government have a decision to make about which way to go on them.

Listening to the Joint Committee on Human Rights is always a good idea. We discussed a statutory definition during the previous stage of the Bill, when the Minister repeated that he,

“should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition”.—[Official Report, 5/9/18; col. 1849.]

I understand why the noble Baroness, Lady Finlay, is thanking the Minister already but it may be slightly premature. I know what she means, but let us wait until the end of the next day and a half. It is important that the Minister shares with us now where that thinking has led him.

[Lord O’Shaughnessy]

My Lords, I am more than happy to do so. I express my gratitude to the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for tabling their amendments and for precipitating this incredibly important debate. As has been set out, Amendment 2, moved by the noble Baroness, Lady Tyler, states that the liberty protection safeguards apply only to,

“arrangements which give rise to the deprivation of the cared-for person’s liberty”,

when,

“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent”.

The amendment explains that someone is confined when they are,

“prevented from removing himself or herself permanently … and … the dominant reason for the deprivation of liberty is the continuous supervision and control of the cared-for person, and not treatment for their underlying condition”.

Amendment 4, tabled by the noble and learned Lord, Lord Woolf, also states that a deprivation of liberty for the purposes of liberty protection safeguards is where,

“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent to their confinement”.

The amendment goes on to define “valid consent”, stating in particular that valid consent has been given when,

“the cared-for person is capable of expressing their wishes and feelings … has expressed their persistent contentment with their care and treatment arrangements … there is no coercion involved in the implementation of the … arrangements”,

and it is,

“confirmed in writing by two professionals, one of whom must not be involved in the implementation of the cared-for person’s … arrangements”.

The intention behind the amendments is to create a statutory definition of the deprivation of liberty, as has been discussed. I note that the amendments were influenced by the work of the Joint Committee on Human Rights, which I both applaud and welcome. We are aware, and the Law Commission’s consultation confirmed, that there is real confusion on the ground over the application of the so-called acid test and determining whether a person has been deprived of their liberty. In some cases, that has led to blanket referrals and applications for authorisations being made where there may be no deprivation of liberty at all.

As the noble Baroness, Lady Thornton, pointed out, I promised to think about this issue and we have given it a great deal of thought. Like other noble Lords, we have reached the conclusion that deprivation of liberty should be clarified in statute. However, we want to get the definition right and make sure that it is compatible with Article 5 of the ECHR. I agree that the aims of the amendments are laudable. As I said, the Government support providing clarity in the Bill. However, as I am sure all noble Lords appreciate, this is a complex and technical issue, and we have to make sure that any amendment is compliant with Article 5.

The noble Baroness, Lady Thornton, pointed out one particular concern around the use of the term “not negligible … time”. The point I want to make is much more technical, but it serves to introduce how difficult this issue is. I hope noble Lords will bear with me as I explain it; it is incredibly important. We believe that the amendments tabled by the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, would not have the intended effect of defining deprivation of liberty, but would instead limit the application of liberty protection safeguards to those who fall within the respective definitions.

Section 64(5) of the Mental Capacity Act defines “deprivation of liberty” as having the same meaning as in Article 5. The definitions in the amendments would not change this. Deprivations of liberty that fall outside those definitions would still be deprivations of liberty under Article 5, and would still need to be authorised in accordance with Article 5. However, because the liberty protection safeguards would not apply, authorisation would instead need to be sought in the Court of Protection, which, as we know, can be a cumbersome and distressing process for persons and their families, and would have significant cost implications for public bodies and the court system

Furthermore, the amendment tabled by the noble and learned Lord, Lord Woolf, although closely resembling the proposal put forward by the JCHR, also seeks to determine what valid consent would mean, and we are worried that that would not work in the way intended, because the definition is very broad. Its consequence could be that a significant number of people currently subject to DoLS authorisation would be caught by the definition and excluded from the liberty protection safeguard system, and tens of thousands of people might need to seek authorisation from the Court of Protection. Again, I do not believe that anyone would want to see that outcome. I notice that the noble and learned Lord is shaking his head, so clearly there is some disagreement on this point. I use it, however, to illustrate that there is a concern that we get this right.

[Lord Woolf]

I was shaking my head because I do not want to see what the Minister suggested might be a consequence.

[Lord O’Shaughnessy]

I will come to that. I am using that technical point to illustrate that there are concerns with the amendments as laid. We recognise the importance of this issue and the strength of feeling on it in the House. As I have said, I see merit in the argument for having this defined in statute, and I am sympathetic to that point of view. I can therefore give noble Lords some assurance, and confirm today not only that we are working on this matter, but that we intend to bring forward an amendment in the Commons to give effect to a definition. We want to work with all noble Lords and other stakeholders, and of course the JCHR, to ensure that we can table an effective amendment that achieves our shared aims and gains the level of consensus that we all want to achieve, and that we shall be able to lay it and have it agreed during the Commons stages of the Bill. I hope that in providing that commitment, I have been able to reassure noble Lords of the strength of our intentions. We absolutely want to do this, and we want to get it right. I still think it will take a bit more time, but I know that, working together, we can achieve that.

[Baroness Barker (LD)]

I thank the Minister very much for his response to the amendments tabled by my noble friend Lady Tyler and the noble and learned Lord, Lord Woolf. I acknowledge that he has listened to the arguments made in this House over the past few weeks. I understand why he cannot make a commitment to come back within the timescale of the Bill in this House. This is an important matter, and many different people have a great deal of expertise, practical knowledge, legal knowledge and so on, to put into the process of coming up with a definition, which will be extremely difficult.

Would the Minister therefore be so good as to write to noble Lords as soon as he can, setting out the timetable of the work the department intends to undertake and the people they intend to involve in discussions, which I hope will include practitioners, stakeholders and academics, medical experts and so on, as well as Members of your Lordships’ House who have reviewed the operation of the current law and found it deficient? Could he do that as soon as possible so that, when we come to consideration of Commons amendments when the Bill comes back to this place, we will be able to give this subject the attention it merits rather than the rather perfunctory consideration that we usually have to give to arguments that come back to us within a very technical parliamentary framework?

16:30

[Lord O’Shaughnessy]

I am happy to give that commitment, bearing in mind that there is always uncertainty about the timing of Bills’ progress but, in terms of the work we will do to come up with the definition, I am more than happy to do that and to include estimates—I see the Chief Whip coming into the Chamber—of the timing of the further parliamentary stages.

[Baroness Tyler of Enfield]

I thank the Minister for his full and helpful reply. This has been a good and important debate to start this afternoon’s debate. I am grateful to the Minister for agreeing to look at this. He has twice confirmed the Government’s position, which is that it is important that the definition is clarified and contained in the statute. That was the purpose of my amendment. He is right to say that this is complex and technical and that we need to get it right. I fully understand that that needs a bit of time. Although at one stage I hoped that this might be able to come back at Third Reading, I fully understand why he said that the Government will lay an amendment in the Commons stages, and I support my noble friend Lady Barker in her request for a letter setting out the timescale of the work and who will be involved. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3

Moved by

[Baroness Meacher]

3: Schedule 1, page 5, line 33, at end insert—
“(1A) This Schedule does not apply to deprivation of liberty processes in a domestic setting, arrangements for which must be undertaken under the Care Act 2014.(1B) This Schedule does not apply to deprivation of liberty processes where a dominant reason for the deprivation of liberty is the treatment of an underlying condition covered by the Mental Health Act 2007, except in exceptional circumstances.”

[Baroness Meacher (CB)]

My Lords, my noble friend Lady Murphy, who added her name to this amendment, apologises because she unfortunately cannot be here as she is not in the country.

Like other noble Lords, I thank the Minister for really listening to the serious points that have been made by noble Lords across the House and for taking things forward substantially since we started this work.

The two issues that I want to raise are, first, that it may be unhelpful to include within the LPS system cases where there may be a deprivation of liberty in a domestic setting and, secondly, that it may be helpful to all concerned if the Bill makes it clear as far as possible—and I know this is difficult—where the boundary lies between the Mental Health Act and the Mental Capacity Act. I will discuss these issues in turn. Their only common feature is that they concern two groups of people whose deprivation of liberty issues might best be dealt with outside this Bill.

Turning to the question of people in domestic settings, we should probably start with the Supreme Court’s judgment in P v Cheshire West and Chester Council, which has been referred to many times, which set the acid test of when a deprivation of liberty is occurring. Importantly, it lowered the threshold so that deprivations of liberty can also occur in domestic settings. This is absolutely right. It is perfectly possible to envisage cases where abusive relatives may be depriving a family member of their liberty in an inappropriate, disproportionate and even cruel way. A system to deal with such situations is absolutely necessary—I am not questioning that for one minute—and that system must ultimately have a process involving access to a court to determine disputes. The question is what system is appropriate for such cases and how far it can go to try to avoid references to court wherever possible, because these things can be very distressing for relatives and others involved.

Your Lordships will be aware that some informal carers consider the LPS system to be too expensive and an intrusion on family life. My noble friend Lady Murphy and I are—I was going to say “inclined” to agree with them, but we actually very much agree with them. Which system would provide a proportionate and effective protection of the liberty of people in domestic settings is what this amendment is all about.

The British Association of Social Workers, which represents the best interest assessors and others involved in deprivation of liberty cases at present, proposes that a new statutory definition could exclude home situations and domestic arrangements from a deprivation of liberty, thus removing the current expensive practice whereby the Court of Protection has to authorise these to make them lawful. In this scenario, the safeguarding provisions of the Care Act 2014 would be drawn on to protect people’s liberty within domestic settings.

We hope that between the Lords and Commons stages of the Bill—I do not think anything can be done before Third Reading—the Government will consult on this question and come up with very clear amendments to this Bill and to the Care Act 2014 regulations in order to establish a proportionate and effective system to deal with liberty issues in domestic settings. Both will be necessary.

I will give an example to clarify the real importance of proportionality. Under the safeguarding procedures, an 85 year-old caring for her 89 year-old husband with severe dementia, who feels she can manage only if her husband stays in one room, will have a stream of people calling to assess the needs and potential risks which might be involved. Nine different people may be coming to the house—the poor woman does not know who they are or what they are there for. In our view, she should not have to deal with yet more bureaucracy if it can possibly be avoided. It can be avoided if the safe- guarding professionals are able to assess the deprivation of liberty issue alongside—and within the same visit as—the other assessments. The Government will need to consider the definition of “domestic setting” and to determine whether this includes supervised living arrangements, which, of course, are not care homes. Again, that is a matter on which we need to defer to the Government to work out between the two Chambers.

I turn now to the dividing line between the Mental Health Act and the Mental Capacity Act, as amended by this Bill. Unlike DoLS, which are always based on the best interests of the individual, LPS may result in a person being deprived of their liberty, primarily where there is a risk of harm to others. In such cases, the best interests of the others who may be harmed must be taken fully into account, even at the risk of limiting the liberty, and indeed the best interests, of the individual who may cause the harm—one wants however to avoid that as far as possible. The two groups who come to mind are those with Lewy body dementia, and a small number of people suffering from autism. Sub-paragraph (1B) of our amendment would result in such cases being assessed under the Mental Health Act apart from in exceptional circumstances—I was persuaded that that was an important sub-paragraph to include within any amendment. These assessments would be done by people with experience of assessing risk resulting from disorders of the mind. They would be well equipped to assess deprivations of liberty and their necessity in these particular cases.

In my discussions with Sir Simon Wessely, who is leading the Mental Health Act review, and quite separately in a meeting with two of Sir Simon’s colleagues on the review, I came away clear that it would be helpful to flag up the need for further work on this issue. The Law Commission had proposed that,

“risk of harm to others”,

should be an additional possible reason for detention under their “necessary and proportionate” test, and this was explicitly written into their draft Bill. Interestingly, the Government omitted the relevant text from their Bill.

Recently, the Government said in passing that “risk to others” will be a basis for detention, but this will be set out in the code of practice. I hope the Minister will agree that this really is unsatisfactory, unless the code of practice sets out that detention on grounds of risk to others will not be dealt with in this Bill. One could probably do that in the code of practice, but not the opposite. Is that in fact what the Government have in mind?

This is the issue where the outcome of the Mental Health Act review could relate directly to this Bill. The review reports on 12 December, and no doubt the Government will know the conclusions some days before that. I urge the Minister to try to ensure that work is done to produce an amendment to this Bill, clarifying the position of these relatively small groups of people who might best be assessed under the Mental Health Act rather than under this legislation.

The issue of stigma was raised earlier, but even the Royal Family are trying to address stigma with regard to mental illness. One should not put groups of people under the wrong legislation as a method of dealing with stigma, as it will not deal with it.

As the Minister made clear in our meeting, the best interests test is clearly set out in the Mental Capacity Act, and that carries forward into the Bill. That is absolutely right and important, but this is the most powerful argument for excluding “risk to others” as a criterion for deprivation of liberty under the Bill. These two situations—deprivation of liberty issues in domestic settings and deprivation of liberty due to a risk to others—require an appropriate judicial body for determining challenges to authorisations of deprivation of liberty. The judicial body needs to be accessible to enable participation in the proceedings of the person concerned, the speedy and efficient determination of cases, and the desirability of including medical expertise within the panel deciding the cases, when that is necessary—but not when it is not, which is important.

I hope that the Government will consider widening the scope of mental health tribunals to include a limited number of mental capacity cases as discussed here. The tribunals could be named mental health and capacity tribunals. In many cases, the judge of such a tribunal could determine the case on the papers without the involvement of the full tribunal. Sir Simon made the point to me that we do not have sufficient psychiatrists in this country, and we do not want a great backlog to build up simply because there are not the people to do the job. He seems to think that we have an abundance of judges—that would have to be checked; I do not know about that. These two important issues have not been given adequate attention. I beg to move.

[Baroness Thornton]

My Lords, we on these Benches recognise that the noble Baronesses, Lady Meacher and Lady Murphy, have been persistent in raising these issues throughout the course of the Bill. They are absolutely right that these issues have to be addressed and that they are not covered adequately; the briefings we have had suggest that they are not. The reason that possibly we have not been able to develop enough of a head of steam on this is that we have been focusing on other issues in the Bill, which we will come to. The Minister may not be able to resolve this immediately, but I hope that he will recognise its importance and bring forward a solution.

[Lord O'Shaughnessy]

I express my gratitude to the noble Baronesses, Lady Meacher and Lady Murphy, for tabling this important amendment. As the noble Baroness, Lady Meacher, pointed out, the effect of the amendment would be to ensure that liberty protection safeguards do not apply to a deprivation of liberty in a domestic setting, and that these should be dealt with under the Care Act. It further states that the schedule does not apply where the dominant reason for the deprivation of liberty of a person is for an underlying condition under the Mental Health Act.

The effect of the amendment as tabled would mean that people deprived of their liberty in domestic settings could not have that authorised through the liberty protection safeguards or the Court of Protection. Instead, their case would fall to be dealt with under the Care Act 2014. I appreciate that the intention is that in most cases deprivation of liberty would be avoided through care planning and safeguarding under the Act. But nevertheless, in some cases there will need to be an authorisation of a deprivation of liberty in domestic settings.

I absolutely sympathise with the noble Baroness’s intention to reduce wherever possible intrusions into family life; as the noble Baroness, Lady Thornton, pointed out, that has perhaps not been given sufficient time during the passage of the Bill so far, although it is nevertheless a significant issue. However, we have a concern with regard to the amendment as laid in that the Care Act does not in itself provide adequate Article 5 safeguards, and to rely on such a process could result in a real risk of incompatibility with convention rights.

16:45

We are also concerned that there might be individuals who would fall through the gaps, as they would be excluded from liberty protection safeguards but not qualified to receive care under the Care Act. These include, for example, those who are receiving NHS continuing healthcare in the community, those aged 16 and 17, people in Wales, where the Care Act does not apply, certain cases of self-funders and those who fall below the national eligibility criteria. We would obviously not wish to be in the position of excluding vulnerable people from Article 5 safeguards. I know that this in part relates to the previous group of amendments in its attempt to provide a definition, and I will come back to this point in a minute.

The noble Baroness also pointed out that the effect of her amendment was to draw a firm line between the Mental Capacity Act and the Mental Health Act. My understanding is that the amendment seeks to achieve this by providing that, where the dominant reason for the deprivation of liberty of a person is their treatment under the Mental Health Act, then the liberty protection safeguards do not apply. In all cases under the Bill as it stands, a person detained in hospital under the Mental Health Act is excluded from the liberty protection safeguards. In other cases, if a person is objecting to medical treatment, they cannot be placed under the liberty protection safeguards. The position set out in the Bill largely replicates the status quo of the existing interface between the Mental Capacity Act and Mental Health Act.

The reason for not reforming the interface, as the noble Baroness knows, is that it is currently being considered by Sir Simon Wessely through the Mental Health Act review. As I promised on the last day in Committee, I have met with Sir Simon Wessely to discuss his review and to talk about the particular issue of the interface. Without going into more detail than I am allowed to about his intentions—and I have not yet seen the conclusions of the review—there seems to be some question about the scale of that interface and how many people would be affected, given his ideas about how to reform the Mental Health Act. That just underlines the importance of waiting and not prejudging the consequences of that review before thinking about how we should address that interface in this Bill. However, because it is intended that the review will be published on 12 December, I am reassured that Parliament will have the opportunity to return to this issue during the Commons stages. I would like to reserve our opinion on dealing with this topic until we have had a chance to consider the conclusions of that review, bearing in mind that this Bill gives us a vehicle to act if we believe that it is the right thing to do to address this particular issue. I think the noble Baroness has signalled that she would be content with that kind of approach, because we are waiting for those conclusions.

Nevertheless, returning to the point about domestic settings, as I committed to in the last grouping, we will bring forward an amendment to address the issue of the definition of a deprivation of liberty when the Bill moves into the other place. I will make sure that the process of defining and the amendment give proper consideration to the consequences of a deprivation of liberty in a domestic setting. I hope it reassures the noble Baroness that we will explicitly consider this. I know that this will be a topic of great interest in the House of Commons, where there will be individual MPs whose constituents are writing to them on these issues. It is clearly going to be a hot topic when we come to that point. Therefore, as we move forward with a programme of work that I am going to set out in letters to noble Lords, I will ensure that the issue of deprivation of liberty in a domestic setting is considered through the process of defining a deprivation of liberty.

I hope that with that reassurance, as well as the reassurance that we will be able to consider the consequences of Sir Simon Wessely’s review, the noble Baroness will feel adequately reassured that these issues are being actively considered and that we will have the opportunity to do something about them. I hope that she will therefore feel able to withdraw her amendment.

[Baroness Meacher]

My Lords, I thank the noble Baroness, Lady Thornton, for her helpful comments and the Minister for his considered and careful response and for his commitment to give really serious consideration to both of these issues in the gap between the deliberations of this House and those of the other place. I sincerely want to thank the Minister for all that, and on that basis I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4 not moved.

Amendment 5

Moved by

[Lord O'Shaughnessy]

5: Schedule 1, page 6, line 2, leave out “18” and insert “16”

[Lord O'Shaughnessy]

My Lords, as we move on to this group of amendments, which deals with the extension of liberty protection safeguards to 16 and 17 year-olds, I thank all noble Lords for reminding us from Second Reading onwards of the absence of this provision when compared with the Law Commission’s report. Of course, we had accepted in principle that we wanted to move on this issue, but we needed to resolve some complexities about how it should apply. We have now done so and have brought forward amendments. I am grateful to all noble Lords, stakeholders and others who have contributed to this process.

Let me just outline in more detail what these specific amendments cover. Amendment 5 extends the liberty protection safeguards system to 16 and 17 year-olds.

Amendments 20 and 22 take into account the different legislative arrangements already in place for cared-for people aged 16 to 17. This group of young people are likely to have either an education, health and care plan—an EHCP—in England, or an individual development plan—an IDP—or statement of special educational needs in Wales. Amendment 21 provides that, for those cared for in the community, the same local authority that maintains their plan will act as the responsible body for liberty protection safeguards. If the person has neither of these plans, the responsible body will be the local authority that is providing accommodation for the person, or otherwise named in a care order; in any other cases, it will be the local authority for the area in which the arrangements for that young person are mainly undertaken. This provision aims to provide continuity for the person and to make the process less burdensome for them and their family. The local authority in these cases will know them best and have more knowledge of their circumstances and will therefore be able to make sure that the arrangements are the most appropriate.

Those aged between 18 and 25 and in the scope of LPS may also have an education, health and care plan or an individual development plan. Amendment 19 clarifies the responsible local authority for this group. Amendments 7 and 18 state that the responsible body for those aged 18 to 25 should be the same local authority that maintains the education, health and care plan or individual development plan. This will provide clarity and consistency in their arrangements too.

Amendment 22 has the effect of clarifying who the responsible local authority is if none of the other specific provisions applies for those aged 16 and 17. Those 16 and 17 year-olds who are cared for mainly in hospital settings will have the same responsible body as those who are 18 or over, which is the NHS trust, local health board or CCG.

Amendment 23 defines education, health and care plans and individual development plans.

Amendment 134 makes provision in Wales for the transition to the new system, to support children and young people with special educational needs or additional learning needs. We are continuing to consider, in conjunction with the Welsh Government, whether all the cohorts in Wales are captured under the current amendments. If there is a need to do so, we will come forward with new amendments in the other place in order to capture other cohorts, if they are identified.

Although liberty protection safeguard authorisation records will be stand-alone documents, we have listened to advice from noble Lords and will make it clear in the code of practice that information in the LPS authorisation that is relevant to meeting a young person’s special educational needs or additional learning needs should be included in their EHC plan or IDP—sorry for the acronyms.

Over recent months, we have worked together across government and with stakeholders to develop these amendments so that the new system complements and strengthens existing safeguards for 16 and 17 year-olds who lack capacity and who must be deprived of their liberty for care and treatment purposes. I hope that these government amendments address the concerns raised by noble Lords. I thank them again for raising them and for contributing to the development of these amendments. I beg to move.

[Lord Touhig (Lab)]

My Lords, we have had some very useful and, more often than not, constructive engagement with the Government during the passage of this Bill. The success of our collaborative working is certainly demonstrated in these amendments extending the provisions to 16 and 17 year-olds.

In the very early days of its thinking on this point, the Law Commission commented on the poor knowledge among health and social care professionals about how the Mental Capacity Act 2005 applied to 16 and 17 year- olds. A subsequent report stated:

“There are likely to be a range of issues that are specific to young people that will need to be included in guidance and/or codes of practice”.


The report went on to argue the need for dedicated training for professionals working with this age group and highlighted areas such as children’s services, mental health services, children and adolescent mental health services and adult mental health services, as well as schools. As an aside, my noble friend Lady Massey of Darwen is currently writing a report for the Council of Europe addressing the health needs of adolescents in Europe, and I look forward to reading it.

On this very important matter, the Minister and his team should be congratulated on recognising that 16 and 17 year-olds are vulnerable to slipping through the gaps that the Bill would create for them if they were not included. This is a vitally important change to the Bill—many of the stakeholders consulted listed this as one of their main concerns. Extending the age to cover 16 and 17 year-olds will ensure that some of the most vulnerable young people can access adequate help and be empowered. On this side, we strongly support the amendments.

Amendment 5 agreed.

Amendment 6

Moved by

[Lord O’Shaughnessy]

6: Schedule 1, page 6, line 4, leave out “is of unsound mind” and insert “has a mental disorder”

[Lord O’Shaughnessy]

My Lords, the amendments in this group have been tabled to remove the references to “unsound mind” from the Bill. As was made very clear in discussions at Second Reading, in Committee and outside this House, we all agree that the expression “unsound mind” is outdated and, as the noble Baroness, Lady Murphy, reminded the House, it is not clinically relevant. Noble Lords have made it clear that they want to change this language and that it should not be used in the Bill.

It is worth remembering that “unsound mind” is the language used in Article 5 of the ECHR. It was included in the Law Commission’s draft Bill and we brought it over to our Bill because we were concerned about creating a gap in which some people who were entitled to Article 5 safeguards would not have access to the liberty protection safeguards and would have to have their arrangements authorised in the Court of Protection. The Government took the view that it would be unfair to deny people access to the protections provided by the liberty protection safeguards, particularly as we know court processes can be cumbersome for them and their family. However, noble Lords and the Joint Committee on Human Rights recommended that further thought be given to replacing “unsound mind” with a medically and legally appropriate term and this is what we have done.

The Government have reflected on the debate in this House, particularly the expert legal insight provided by the noble and learned Lord, Lord Woolf—who is not in his place at the moment—whom I thank. Having done this, we are comfortable that we can use alternative language that is unlikely to create a significant gap. If people do fall out of this definition, they will still have recourse to the Court of Protection to authorise deprivations of liberty, although we expect the number of these cases to be very few. To achieve this, Amendment 6 removes the reference to “unsound mind” from the arrangements to which the liberty protection safe- guards apply and replaces it with “mental disorder”. Amendment 12 provides that “mental disorder” has the same meaning as under Section 1(2) of the Mental Health Act which is,

“any disorder or disability of the mind”.

This is also consistent with the approach under the current DoLS system and is therefore well understood by practitioners.

We considered other approaches, such as using the definition of a lack of capacity in Section 2 of the Mental Capacity Act, which refers to an,

“impairment of, or a disturbance in the functioning of, the mind or brain”.

However, we concluded that this definition was too broad for the purposes of Article 5(1)(e), which permits the deprivation of liberty only on the basis of unsound mind. For example, the Section 2 definition could mean that people who are unconscious or have a brain injury, without psychiatric symptoms, might be able to be deprived of their liberty under the liberty protection safeguards scheme.

Amendment 12 removes the definition of “unsound mind” from the Bill. The noble Baronesses, Lady Thornton and Lady Jolly, have tabled Amendments 25 and 50, which instead use the phrase,

“has disorder or disability of the mind”.

These words are also taken from the definition in the Mental Health Act and I believe the amendments are intended to have the same effect as the Government’s. Now that the Government have moved on this, I hope they will feel that to be the case. Finally, Amendments 14, 26, 51, 131, 132 and 133 update other parts of the Bill to reflect the removal of “unsound mind” and the substitution of “mental disorder”.

I end by thanking noble Lords for the robust debate on this issue. I have very much had my mind changed on this and give reassurance that people will not fall through the gap. We have got to a good position, which provides the kind of protection that we want while also getting rid of a phrase with connotations that none of us is happy with. On that basis, I beg to move.

17:00

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I need to inform the House that, within this group, Amendments 25 and 26 appear to be alternatives. Amendment 26 will be moved only if Amendment 25 is withdrawn or disagreed to.

[Baroness Tyler of Enfield]

My Lords, I support this group of amendments. One or two offer a slightly different definition or slightly different words but the key point for me, having moved a similar amendment in Committee, is that we have now removed the phrase “unsound mind” from the Bill. I know this is welcomed here and will be hugely welcomed by many in the sector. It means we will get rid not only of a very old-fashioned and stigmatising term but one on which there were also concerns—as I understood from my conversations with the Royal College of Psychiatrists—that it had no real clinical meaning. The term “mental disorder”—or the few more words added by other amendments—not only brings us in line with the Mental Health Act, which is good, but I am advised that it will also help to provide diagnostic clarity. That has to be a good thing too. I support this group of amendments.

[Baroness Watkins of Tavistock (CB)]

My Lords, I support this group of amendments and I am delighted that the Minister has had his mind changed. Not using this phrase will change how people feel about their relatives who may be suffering from mental disorders. I am also optimistic that, in the longer term, using such modern nomenclature will make mental health professions more attractive to young people.

[Baroness Finlay of Llandaff]

My Lords, I also welcome these amendments; removing “unsound mind” is a major step forward. I have a couple of questions for the Minister and I hope he can clarify. I may have misheard him but I understood him to talk about head injury. It would be helpful if he could clarify that he was referring to acute head injury—or acute brain impairment of any sort—as opposed to long-term damage such as frontal-lobe damage, which can happen when you have had a major brain injury. This can result in very long-term problems and difficult behaviours, which may mean that people currently need to be assessed as subject to deprivation of liberty. Could he clarify that we are not discounting a whole group of people who, it is generally felt, benefit from being properly assessed and safeguarded?

I would also like confirmation from him on another group. In January 2015, the then Mental Capacity Act deprivation of liberty safeguards policy lead in the Department of Health wrote out quite widely. There had been a concern about people who were nearing the end of life, including palliative care patients and patients in hospices. It was made clear in this letter that if somebody had consented to a care package and then went on—as part of their disease process when they were dying—to need some restrictions, and possibly to be moved to another place of care, that would not fulfil the acid test as such; neither would it in the case of people who were being nursed in a side room who were not under continuous supervision and control. The reason was that, in palliative care cases, there is often a time when the family cannot cope as the patient becomes unconscious, is moved to a hospice or develops another condition that had not been anticipated. It would be an inadvertent consequence if this letter from January 2015 no longer stood. It has been important and has made care easier. It was following this letter that we were able to change the regulations for what had to be referred to a coroner. That made a major difference, because families found it terribly traumatic to find a relative subject to a deprivation of liberty safeguard having to be referred to a coroner. I simply seek clarification on those two issues, but I in no way question the importance of removing “unsound mind” from the Bill. I hope this is the beginning of us seeing the end of that term, which is stigmatising.

[Baroness Hollins (CB)]

My Lords, I welcome the replacement of “unsound mind”, but I ask the Minister to consider adding a safeguard to ensure that no one has their liberty denied because of a mental disorder without first being seen by a qualified doctor. It is essential that individuals are assessed for a mental disorder and not another condition presenting as a mental disorder, such as delirium or the side-effects of medication, which are common among older people. It is important that consideration is given to whether the disorder can be managed without depriving the person of their liberty. This requires assessment not only of their mental state but of their past and current physical health and medication. The assessment is a core part of this process. It has great significance because it relates to the deprivation of a person’s liberty. Who can carry this out should be stipulated in the Bill rather than in a code of practice. I ask the Minister to reconsider bringing forward an amendment to add this requirement to the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I support the noble Baroness on the assessments. The Minister’s amendment is very welcome, but clearly the assessment is crucial. My understanding is that in previous debates, as the noble Baroness suggested, he said that the code of practice will set out which competencies will be needed to carry out this assessment. Like the noble Baroness, I ask him to consider, perhaps between now and Third Reading, whether this might be better put in regulations than in the code of practice. I always worry a bit about the use of “competencies”. It is a word now used in many recruitment processes, but what exactly does it mean? Will it be done by a registered medical practitioner with sufficient expertise in this field? If not, what is the justification? The change the Government have made is enormously welcome, but it is very important that we are confident the assessment will be carried out appropriately.

[Lord Touhig]

My Lords, this group of amendments is most welcome. The term “unsound mind” is offensive in the extreme and historically has been used as a form of abuse to demean the dignity of the person to whom it is applied. These amendments mean that this old-fashioned term will no longer be in the Bill and that a phrase with no clinical meaning is rightly removed. Using the same term as the Mental Health Act, “mental disorder”—this link is explicitly made by the Government in Amendment 12—provides better diagnostic clarity.

Amendments 25 and 50 in the names of my noble friend Baroness Thornton and the noble Baroness, Lady Jolly, change “unsound mind” to,

“any disorder or disability of the mind”.

The Minister responded to those points in his opening speech. This is the language currently used under the DoLS in the Mental Health Act and it is to be welcomed.

Perhaps I may share with the House my personal experiences. My late mother suffered two nervous breakdowns in her life. One occurred before I was born, when she was put into an institution, where I do not think she was well treated. Later, she suffered a further breakdown when I was 16 and I had to take the lead, coping with and co-ordinating help and support for her, my father and our family. The consequences of her breakdown that I witnessed were traumatic not only for my mother, who was a loving, kind and thoughtful individual, but for our family, who witnessed times when she seemed to grow away from us.

My mother made a recovery and we all came through it, thanks to the devotion and understanding of our family doctor, our wider family and friends. However, our family experience has given me an understanding of some of the consequences of mental illness for individuals and their families. Families who experience what mine went through need support and understanding to cope, which is why I welcome the amendments.

I have said that the term “unsound mind” is used to cover many things. It is one that personally I find offensive, and I rejoice that those words are being removed from the Bill.

[Lord O’Shaughnessy]

I thank all noble Lords for their support for these amendments. I also thank the noble Lord, Lord Touhig, for sharing with us that story. It brings into sharp perspective the consequences of language and culture in the way that people are treated. We are trying to move to a more compassionate and comprehensive system of helping people who reach mental health crises. I appreciate him sharing that story, which was very moving.

Perhaps I may deal quickly with the questions raised by noble Lords. The noble Baroness, Lady Finlay, asked whether long-term brain injuries would be included. The answer is that they would. The reference that I made was to the potential short-term impacts, which we would not necessarily want to capture in this definition. On her question about palliative care, my understanding—I will certainly confirm it, as I have not seen the letter—is that it still applies. I think that is the reassurance she was hoping to get.

In relation to the question raised by the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, about the assessment of a condition by a doctor, case law requires that such an assessment should be carried out by somebody who has objective medical expertise. In practice, that means a registered physician. Therefore, that reassurance already exists in jurisprudence, but I accept the importance of the point raised—that, perhaps except in an incredibly rare emergency, that kind of diagnosis should always be made by somebody with that level of competence or skill qualification, however you want to define it. I will write to noble Lords explaining the position as it stands in law and why we think that it gives the protection and reassurance they are looking for. We can then perhaps follow that up with a discussion if there are any remaining concerns. I certainly agree that this is an important issue.

I hope that I have dealt with noble Lords’ questions and I thank them again for their support and the challenge that has got us to this point of moving forward.

Amendment 6 agreed.

Amendment 7

Moved by

[Lord O'Shaughnessy]

7: Schedule 1, page 6, line 42, after second “arrangements” insert “, in relation to a cared-for person aged 18 or over,”

Amendment 7 agreed.

Amendment 8

Moved by

[Lord O'Shaughnessy]

8: Schedule 1, page 6, leave out line 45 and insert “care home arrangements,”

17:15

[Lord O'Shaughnessy]

My Lords, we now come to the largest group of amendments on the issue that has perhaps taken up most of our attention in the progress of the Bill so far, and quite right too.

The government amendments in this group relate to ensuring that care home managers have an appropriate role in the liberty protection safeguards system that we are seeking to implement. You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers. I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest—not when we are talking about the safety and care of very vulnerable people—and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation.

I will shortly address the specific amendments in this group. Before I do so, I would like to draw noble Lords’ attention to other germane government amendments, which we will deal with on the second day of Report but which are important to consider in the round with the amendments in this group. Those include proposals that we have made to ensure that only responsible bodies can arrange the pre-authorisation review and that care home managers will be explicitly excluded from completing the pre-authorisation review. This is important because pre-authorisation should not confirm poor care planning or perpetuate a system where someone is receiving care in an inappropriate setting. The amendments that we have laid and which we will deal with on the second day will counteract any incentive the care home manager might have to ensure that a resident stays in a care home inappropriately. We are also determined to make sure that the care home manager cannot act as a gatekeeper to the IMCA appointment, and we have laid amendments accordingly.

There has been a great deal of discussion about the role of care home managers in authorisation. I have strongly and deeply considered noble Lords’ concerns in the context of what we know works now in the current system. There is a desire to make sure that the liberty protection system that we intend to introduce builds on what works and changes what does not. Under the current DoLS system, care home managers have the role of identifying that someone may lack capacity and need restrictions as part of their care. In practice, they must complete form 1, which brings together all of the current assessments for a person. This is then sent to local authorities, which appoint a best-interest assessor to conduct a further assessment ahead of providing the authorisation. This is an appropriate role for care home managers to undertake, and is the role we are proposing and clarifying through our amendments.

Amendment 30 requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation. Amendment 90 applies this decision to reviews as well. This is an important change because it provides additional protections in cases where there may be concerns about a particular provider and its capability for conducting its role, and it allows responsibility to take on all the relevant functions in these cases. There may also be cases where there are no concerns about quality of care, but there may, for example, be particularly strong social worker involvement and it may make sense for them to take on those functions.

This power to remove the care home manager from the process can be enacted at any point, and we would expect it to be done at the earliest possible point, particularly if there are concerns. We will use the code of practice to set out the detail so that it is applied consistently by different local authorities, with clear criteria for the responsible body to make a decision on whether to retain responsibility for the relevant functions. In the case of care home residents, this significantly strengthens the role of local authorities in terms of oversight, intervention and supporting the quality of the operation of the scheme. If the responsible body has decided that the care home manager should be responsible for providing the statement and carrying out the other functions, the care home manager will bring together the information, evidence and assessments needed for the responsible body to make a decision on whether to authorise the liberty protection safeguard. In many cases, this will bring together recent valid assessments that can be used for this purpose.

As has been said previously, care needs change over time. We recognise that putting hard and fast rules on the validity and timeliness of assessments would not recognise the reality of what happens. That is why we will set out in the code of practice what we would expect to see in terms of valid and up-to-date assessments. The Bill also enables the responsible body to step in, if they are not confident in the validity of the assessments, by refusing to authorise the arrangements. Let me be clear that all the assessments would involve consultation with the person. In addition, the Bill will require the care home manager, or the responsible body, to complete the consultation with the person and other interested persons.

Some noble Lords have stated their concern that there is a potential conflict of interest if care home managers were to conduct assessments. The Government agree that there is a potential financial conflict if care home managers were to complete assessments for people in their own care homes, particularly when it comes to considering whether there are less restrictive alternatives. Amendment 52 explicitly excludes care home managers or others from undertaking the assessments if they have a specified connection to the care home, in particular if there is a financial connection. This will be set out in regulations. We will use the regulations to ensure, in England, that care home staff are not able to conduct assessments where they have a potential financial conflict of interest and the Welsh Government will have the power to do the same. Doing this in regulations allows us to provide the necessary detail, given the complexity of the care home sector, to ensure that there are no loopholes. For example, we would not want someone who works in another care home run by the same company to conduct the assessments.

Noble Lords have rightly asked questions about who undertakes the assessments and in particular why there were no clear requirements on the expertise of those who undertake capacity and medical assessments. That refers tangentially to the issue raised by the noble Baroness, Lady Hollins, before. Although that is already provided for in binding Article 5 case law, I have been persuaded that more clarity is needed. Amendment 52 clarifies that capacity and medical assessments must be carried out by someone with appropriate experience and knowledge. Capacity assessments should be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by a physician. We will set out in the code of practice the experience and knowledge that we would expect to see for those undertaking assessments.

On the point about experience and knowledge, Amendment 53 tabled by the noble Baroness, Lady Finlay, would have the effect of requiring that the person who conducts the assessment has the appropriate skills and knowledge. The noble Baroness is absolutely correct that the person who completes the assessment should have the necessary skills to be able to conduct the assessment. Amendment 52 already provides for that within the description of experience and knowledge and we would expect that to cover the necessary skills. We will define that in the code of practice so that it explicitly describes the skills, using the term “skills” and describing the kinds of skills that ought to be required of the person carrying out assessments.

There are also some minor amendments that clarify definitions of care home manager and responsible bodies. Amendment 8 updates the definition of care home manager. Amendment 9 corrects the definition of care home manager in Wales. Amendments 11, 15 and 24 set out a definition of English and Welsh responsible bodies. Amendment 17 removes the definition of local health board as it is now superfluous.

I hope that noble Lords have had a reasonable chance to examine all the government amendments in this group. They have been carefully crafted to reflect to the best possible extent all the concerns set out by noble Lords at Second Reading and in Committee to remove any concerns about conflict of interest and make sure that care home managers are not, to coin a phrase, marking their own homework. They have an important role in organising assessments, but it is effectively an administrative function with proper oversight, and assessments will be carried out by those with the proper qualifications, expertise, skill and knowledge. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, there is a tone of disappointment because I welcome all the government amendments, but the role of my amendment to government Amendment 52 was twofold. First, I am disappointed that speech and language therapists were not in that list read out by the Minister, because we had a debate about the importance of communication skills. When communication is impaired, particularly with disorders that affect any part of the speech or throat cycle, it is very difficult to assess someone’s capacity.

I included skills because I worry that experience and knowledge are sometimes just not enough. If the Government insist on “skills” going into the code of practice, I hope that the Minister will be able to confirm that the skills will be assessed and reviewed at appraisal, and that they demonstrate an understanding of the impact of fear—being frightened—on the way the person behaves.

The assessors must have a high level of communication skills and awareness of all the different ways that communication can be enhanced. I hope that they would also have an awareness of the impact of different types of medication on someone’s capacity, because sometimes changing the medication can really improve a person’s ability to make a decision for themselves.

Amendment 53 links to Amendment 74, which is in my name and will come up later. I am concerned that, without strong reassurance, some of these issues could slip by and we could inadvertently end up having superficial assessments of some people and not the thorough and in-depth ones they deserve. The whole principle of the Mental Capacity Act is to empower people to make their own decisions, and we are talking about trying to have the least restrictive option so that we can enhance a person’s liberty as much as possible. If that assessment is not meticulous with the appropriate skills, the wrong judgments could end up being made.

[Lord Hunt of Kings Heath]

My Lords, I realise that in the last group I mentioned general medical practitioners. I ought to inform the House of my forthcoming appointment to the General Medical Council.

We have had a lot to read in the last few days, and are clearly going to have to take a lot of this on trust, but the thrust of the amendments is welcome, and I am grateful to the Minister for tabling them. As he said, they strengthen the role of local authorities and give them a clear remit to intervene where they feel that, for one reason or another, the care home manager cannot discharge the responsibilities given in relation to the authorisation application appropriately.

In the letter that the Minister sent to a number of noble Lords, he set out factors that might be considered by the local authority as a responsible body. These would be:

“Whether the person has a care plan with the responsible body … local intelligence about a local provider of care homes”,


which would suggest that the responsible body takes over the process;

“insight from local commissioners or concerns about performance … sustained absence of a registered manager”—

or presumably when the turnover of managers is high, as it can be; and—

“an increase in concerns raised by residents, their carers or families … a new service or category of care provision, and/or … provision of poor or incomplete statements”.

To me that sounds very comprehensive and welcome.

What arises from this is that the responsible body will have to make a considerable judgment and, to make it, will need a very clear understanding of the care homes in its area. Could the Minister say a little about how he thinks that local authorities might be supported in that role? Clearly, they now have a major role which they have found it hard to discharge, for reasons that have been discussed. It is important they are able to do this in a consistent way.

The Minister mentioned the code of practice. It is a statutory code of practice, which I think means that it must be followed unless the local body has very good reason not to do so. It would be interesting to know what plans the department has for checking with the local authorities—not in a heavy-handed way—how well it is going after time and implementation, and seeing whether there is consistency across the country as a whole.

[Baroness Barker]

My Lords, I too welcome the Government’s change of mind. They started with a very different understanding from ours of the current roles of care home managers, local authorities, best-interests assessors and DoLS assessors. I think we still have a difference of opinion about how life works in practice, but these amendments show a considerable movement, if not complete agreement on that part, and therefore we welcome them. I feel it is right to remind the Minister that when the Select Committee of your Lordships’ House did the post-legislative scrutiny on the Mental Capacity Act and its workings five years after its implementation, there was an overwhelming lack of information and data both in local authorities and throughout the health service. I rather think that we have been perhaps unnecessarily preoccupied in this Bill with who carries out a particular function rather than looking at the way those functions could possibly be streamlined and better audited.

I do not think that the work of a local authority best-interests assessor or a DoLS lead, however they may be termed under the new scheme, is actually going to change that much, but I welcome the attempt here to meet us half way, and I thank the Minister for that. Well, perhaps it is more than half way in terms of our assessment that what was being asked of care home managers was beyond their capacity to deliver. Big questions still need to be asked about their role in the overall scheme. If we had not spent quite so much time on this, we might have been able to look more closely at greater efficiencies in terms of reporting and so on. For the moment, however, I welcome these amendments.

17:30

[Lord Touhig]

My Lords, I too welcome the amendments and I thank the Minister and his team for the meeting we had earlier this week. He will recall that I raised my concern about different regimes operating in different parts of the country. A responsible body in my borough might decide that it alone would take responsibility for putting together applications, while in the next-door borough the care home manager and so on might be involved. I wanted to look at how we could get to a common approach right across the country. The Minister has helpfully sent us an excellent letter in response to the points I and others raised. In it he states:

“We wish to work with a wide range of stakeholders on developing the code of practice”.


Is he yet in a position to tell which stakeholders he will be consulting? Perhaps he could write and tell us at a later stage, because it would be awful if we left someone off who could make a valuable contribution to this work. The Minister goes on to say:

“We are beginning to develop a programme for the new Code of Practice for the Liberty Protection Safeguards, working alongside the Ministry of Justice. The MoJ is also about to start a project to review the Code of Practice for the wider Mental Capacity Act too, so we will have the opportunity to work on both”.


How does he plan for the two departments to consult between them with stakeholders when looking at the code of practice? Will he consider whether it would be worth setting up a group of interested parties who could act as a sounding board? As the code is developed, similar to what we have done with the Armed Forces covenant, we could bounce ideas off a group which might have an interest and make a contribution. Perhaps we could do something along the same lines. That might ensure that when in the end we get the code of practice, it will have widespread support and be of great benefit to those who we are concerned about.

[Baroness Thornton]

My Lords, I am grateful to the Government for tabling this suite of amendments which, as they say, change the position of care home managers from the original proposal to give them a significant role in applying the liberty protection safeguards—the scheme that is to replace DoLS in care homes. As the Minister said in his comprehensive introduction of this large group, they are a combination of technical amendments and others which are very important indeed. The amendments headed by government Amendment 30 are particularly relevant because they give the responsible body the ability to decide in certain circumstances to take over the authorisation functions in care homes in certain settings. The Government have said that they will set out the details in the code of practice. I shall return to the issue of the regulations and the code of practice in a moment.

Government Amendments 52 and 66 are equally important because they deal with conflicts of interest. The Government have said that the regulations will set out in detail the prescribed functions. I just want to ask a technical question. We do not quite understand why Amendment 78 has been severed from Amendment 73, which it seems to sit with; they are kind of twins and need to be taken together. I realise that we will be dealing with Amendment 73 next week, but they are very important amendments which give regulation-making powers, allowing the appropriate authority to make provisions about what constitutes a connection with a care home. They are also about conflicts of interest.

Amendment 90, as the noble Lord has said, gives the responsible body the ability to decide on the renewal of authorisation functions in care home settings. Listening carefully to what the Minister said when he introduced these amendments, one of the issues they raise is what goes in regulations and what goes in the code of practice. This has been a theme that we have discussed all the way through. It seems to me very important—and I seek reassurance from the Minister on this—that what goes in regulations is matters relating to powers and protection of the individual, and what goes in the code of practice is how those are carried out. Both are very important documents and it is important to address this, so that the right things go in regulations and the issue is comprehensively covered.

It is clear from the debates we have had throughout consideration of the Bill that we welcome the change of heart on policy. Some clarification and explanation will still be required as we move forward, but this suite of amendments does address the important issue of conflicts of interest in the powers of the care home manager and puts the interests of the cared-for person at the heart of the Bill, as they should be. It was clear from the beginning that this issue is of huge concern to all stakeholders on the Labour Benches, as well as across the House. That is why we submitted the suite of amendments early after Committee—strong amendments which addressed and fundamentally changed the role of the care home manager.

Noble Lords will see that the next group of amendments in the list are mine and are supported by the noble Baronesses, Lady Jolly and Lady Watkins. I thank them most sincerely for their support very early in this process. We went through the Bill and removed reference to, or significantly changed the role of, the care home manager. This group starts with Amendment 13, which I would like to assure the Minister, as I did the Bill team, I will not be moving today. These amendments were designed to specify the responsibilities of what we called the “nominated body”—in other words, a qualified body nominated by the responsible body in relation to the authorisation of care home arrangements. That suite of amendments makes it clear that the care home manager’s role is to co-ordinate the required information, determinations and assessment, rather than to carry them out. I am very glad that the Minister used almost exactly those words. What we call the nominated body will be designated by the responsible body. All the subsequent amendments in this group take powers away from the care home manager and replace them.

I was in the Minister’s place many years ago. Seeing these amendments coming down the track with support from across the House—and, indeed, the amendments tabled by the noble Baroness, Lady Finlay, which were sometimes even more radical in their intent—the Minister, the Bill team and his advisers were very wise to take a second look when one considers that all the stakeholders took the same view, without exception, I think. I agree with the noble Baroness, Lady Barker, in that I regret that we met such obduracies, which is what they felt like from our point of view, from the Government in the early stages of the Bill about the role of the care home manager. That meant that we did not spend enough time on other issues that we should have addressed. We did not spend enough time on CCGs, the NHS and the place of local councils in delivering the new arrangements, as my noble friend Lord Hunt mentioned. We did not spend enough time examining the funding and resourcing of the new arrangements. The Minister got off quite lightly on those issues; I am sure that my honourable friends in the Commons will make up for where we lack in this area.

The test of the amendments is whether they fulfil the aims of the suite of amendments we tabled all those weeks ago. We are applying that test today. Can the Minister confirm that the government amendments would give the responsible local authorities the option of giving these roles to the care home manager or taking the responsibilities on themselves and, most importantly, that the care home manager will no longer be responsible for notifying the responsible body whether an IMCA should be appointed in any case? In Amendment 78, it seems that care home managers would not be able to commission anyone with a prescribed connection to the care home. That is to be welcomed.

As far as we are concerned, these amendments are lacking on the issue of—is it the AMPS?

[Lord O’Shaughnessy]

The AMCP.

[Baroness Thornton]

Thank you. I always get those initials wrong. We will discuss that issue tomorrow. As far as we are concerned, the amendments go a long way to meeting the issues that we have raised throughout the previous stages of the Bill. I am grateful for that and I offer them our support.

[Lord O’Shaughnessy]

I am grateful for noble Lords’ support for this group of amendments. I might say that I recognise a juggernaut when I see one coming, but this was about not just the force or number of the amendments—or, indeed, the length of them—but the force of the argument. During this process, we have established the critical point that the care home manager has an important role in the new system, because we want to provide a more proportionate and flexible system, but equally that cannot put them in a position where they have too much power. That would compromise the rights of the people being cared for, who are obviously very vulnerable. The amendments in the names of the noble Baronesses, Lady Finlay and Lady Thornton, gave us some idea of where noble Lords were headed and gave us some sense of shape and direction about where we ought to go to. We have made great progress, and I thank noble Lords for not just their input but their patience throughout this process. It has been trying and challenging for all of us at times, but we have made some great changes that will put the system on a much better footing.

I want to deal with the specific issues raised by various noble Lords. The noble Baroness, Lady Finlay, asked about speech and language therapists. In describing the amendments, I talked about professions “such as” those; she is right that I did not name them specifically. We need to consider which professions are included; clearly, we will want to consult relevant groups and noble Lords on that. Of course, we will make sure during that process that such professionals have the knowledge, skills and expertise that the noble Baroness is looking for. On skills, I recognise that she is disappointed; I hate to disappoint her. I think that this is an issue of semantics. Offline, I can provide assurance on what she is looking for, which is not a superficial case of whether these professionals have a certain degree or are a member of a certain professional body so that boxes can be ticked and we can go ahead. That should be avoided because it will not serve us very well.

The noble Lord, Lord Hunt, asked about the role of local authorities. In the amendments, we have made it clear that the local authority has a prior role in making a judgment about the providers in its area. That was not clear in the Bill before—the noble Baroness, Lady Thornton, asked about that role as well—and it is an incredibly important judgment, because local authorities will need to be in a position to look across their provider network and see who they are clear and confident will be able to make such decisions and who will not. To take up the point made by the noble Lord, Lord Touhig, that will be set out in the code of practice. I will come to his point about stakeholders later. The most important thing is that this is a prior power, to be exercised by the responsible body.

17:45

Clearly, we are working out with the LGA, ADASS and others what this would mean in practice, but I think that local authorities, not least because of their responsibilities under the Care Act 2014, have a good sense of their local provider network. They have judgments, and we also have objective quality judgments now, through the CQC, and other data. Local authorities will therefore be in a position to make a prior judgment about whether a care home, and particularly a care home manager, should be able to exercise that power. Equally, they will have the power to intervene if something changes—if there is a long-term vacancy or a change in CQC rating, for example. We need to think specifically about how this will work, and we will have to continuously review the objectivity of the criteria and the consistency of application. Putting that prior power in the hands of the responsible bodies is an important change, which I know the noble Lord was keen to see, as he raised it on Second Reading and in Committee.

As for the point about stakeholders made by the noble Lord, Lord Touhig, when I respond to the question asked by the noble Baroness, Lady Barker, about the timetable for consultation on definition, I might expand that response to cover the wider consultation with stakeholders on the code of practice. That will give us a sense of the range of stakeholders and the timelines. When I share that information with noble Lords, that will not be the finished product; obviously we will then be amenable to suggestions. As the noble Lord would expect, we will work closely with the MoJ to co-ordinate the reviews; it would be nonsense to have two separate reviews of similar territory. I rather like his idea of setting up a standing stakeholder group to provide advice and a sounding board. We have done that on an ad hoc basis over the past few weeks and months anyway, for this particular issue and this part of the mental capacity review. I take that as a positive suggestion, and will do something about it.

The noble Baroness, Lady Thornton, asked why Amendment 78 had been severed from Amendment 73. It says in my notes that Amendment 73 is about conflicts of interests and assessments, whereas Amendment 78 is about the same issue but in pre-authorisation reviews. I do not know whether that answers the question or not—but they are very similar provisions and we would expect them to be addressed in a single set of regulations. Why they have been grouped in that way I do not know: the mystical workings of the Whips Office are beyond me. But they will be dealt with in a single set of regulations, so we will be able to ensure that the interplay is there.

As for the noble Baroness’s final point about the IMCA, we shall come to that under a future grouping on the next day of Report. That is why I raised it at the beginning of my statement: it is clearly germane to what we are discussing now. The issue was raised, and it does get into conflict of interests territory, but we shall consider it separately. As the noble Baroness will know, we have laid amendments to ensure that care home managers do not have that gateway role. I hope that provides her with the reassurance that she, and all noble Lords, were looking for.

I thank noble Lords sincerely for the huge amount of effort that has gone into making these improvements. As a consequence, things are in a much better state than when we started.

Amendment 8 agreed.

Amendments 9 to 12

Moved by

[Lord O'Shaughnessy]

9: Schedule 1, page 7, leave out lines 4 to 6 and insert—
“( ) in relation to Wales, the person who manages the care home service, within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2), at the care home, by virtue of regulations made under section 28 of that Act;”

10: Schedule 1, page 7, line 7, at end insert—
““clinical commissioning group” means a body established under section 14D of the National Health Service Act 2006;”

11: Schedule 1, page 7, line 7, at end insert—
““English responsible body” has the meaning given by paragraph 10A;”

12: Schedule 1, page 7, line 13, at end insert—
““mental disorder” has the meaning given by section 1(2) of the Mental Health Act;”

Amendments 9 to 12 agreed.

Amendment 13 not moved.

Amendments 14 and 15

Moved by

[Lord O'Shaughnessy]

14: Schedule 1, page 7, leave out lines 21 and 22

15: Schedule 1, page 7, line 22, at end insert—
““Welsh responsible body” has the meaning given by paragraph 10B.”

Amendments 14 and 15 agreed.

Amendment 16

Moved by

[Baroness Barker]

16: Schedule 1, page 8, line 10, at end insert—
“(aa) if the arrangements are carried out in an independent hospital, the designated NHS trust;”

[Baroness Barker]

My Lords, following our previous discussion, we turn to an area that has not received sufficient attention because we were so focused on care homes and care home managers. My Amendment 16 addresses the position of independent hospitals. I think independent hospitals in Wales might in part be addressed in Amendment 16A, tabled by the noble Baroness, Lady Thornton, and grouped with my amendment.

In the process of talking to stakeholders over the past few weeks, it became clear that many of the concerns that we have expressed over conflicts of interest for care homes also apply to independent hospitals, and therefore it seemed to us important to state in the Bill that where a person is deprived of their liberty and is in an independent hospital, the CCG or the local health board is the responsible body as, as we have discussed in great depth and tortuous detail over the past few weeks, is the parallel case for care homes and local authorities.

It is unfortunate that we missed this and have not discussed it as much as we should have. People deprived of their liberty in independent hospitals perhaps have the worst of both worlds. They do not have the protection of the Mental Health Act and they are perhaps less likely to come to the attention of an external body, such as a local authority, because their care is unlikely to have been through the care planning process. Therefore, they could be at a greater point of vulnerability. They may also be more likely to be deprived of their liberty because the deprivation may be something to do with medication. That is why I tabled this amendment, so that we could perhaps return to this at Third Reading. It is important that the Government make clear their intention that there should be clarity about the position of people held in these establishments, and that they do so swiftly and in sufficient detail. I beg to move.

[The Deputy Speaker]

My Lords, Amendments 16 and 16A appear to be alternatives, so Amendment 16A will be moved only if Amendment 16 is withdrawn or disagreed to.

[Baroness Meacher]

My Lords, I put my name to this amendment and I very strongly support it. Having been a Mental Health Act commissioner for many years and having visited independent hospitals as well as NHS hospitals and other establishments, I remember those independent hospitals as being the most alarming environments that I ever visited. Very often, the biggest problem was indeed the conflict of interest. People would get into those hospitals and be treated, and that was all good, but whereas in an NHS hospital the pressure all the time, from the day of arrival, is to plan the exit and aftercare in the community, once those hospitals had got the person better they had a lovely ride. The patient was there and was no trouble, no longer had symptoms and was miles—maybe hundreds of miles—from their family. They did not get visits. The conditions in which those people were held were shocking, and the degree of the deprivation of liberty was often deeply shocking. Did they go out in the grounds? Probably not. Did they go out for walks? Probably not. Any kind of a sense of liberty could be lost, not just for days, weeks or even months, but for years. We would do our tiny best, but the fact was that we might get round to one of those hospitals every two years. It was inadequate to say the least. I therefore urge the Minister to take this very seriously. We are worried about care homes, which are probably local and have the family nearby, if there is one. They can be a problem, but this is on another scale and of another degree of severity, so I strongly support this amendment and urge the Minister to consider it.

[Baroness Finlay of Llandaff]

My Lords, I, too, have put my name to this amendment. My noble friend Lady Meacher has laid out very clearly some of the problems and conflicts of interest that can arise. One of the difficulties is deciding which will be the responsible body. If the place where somebody is treated is quite a long way from whoever commissioned their care, it can create real problems for a local authority or a clinical commissioning group, which might be funding outside the range of common care for somebody to be some distance away. That is why we have to decide which is to be the responsible body, and that responsible body must take those responsibilities seriously. The advantage of the responsible body being a designated NHS trust is that the private hospital is likely to have consultant-level staff who are likely to have an NHS contract somewhere at another trust, which may be nearby, or if they are part of a specialised group they will be subject to a degree of oversight, appraisal and so on within that specialist area. They are less likely to have local GPs who would be answerable to clinical commissioning groups. One just does not know. They have to go to one or the other. The most dangerous of all would be to have what one might term a mixed economy of a responsible body in some situations and a clinical commissioning group or local health board in another.

In Wales, things are a little different because the local health board covers the hospital sector and the community, so we have clearly defined geographical boundaries with much easier lines of answerability. My feeling is that we need to plump for one. I hope that the Government will, and I can see that there may, on balance, be advantages in saying the designated NHS trust is the responsible body.

[Baroness Thornton]

My Lords, I shall speak to my amendment, which is in this group. The noble Baroness, Lady Finlay, said that the Government need to opt for something here to solve this problem. Mencap, in particular, and VoiceAbility have been very exercised by this because, as noble Lords have said, there is a conflict of interest when an independent hospital can be responsible for authorising deprivation of liberty for people in the hospital for the purposes of assessment and treatment of a mental disorder. My amendment names the CCG or local health board as the responsible body to remove that conflict of interest.

Since the Winterbourne View learning disability abuse scandal in 2011, the Government have been trying to reduce the number of people in these settings but, it must be said, largely without success. There remain 2,350 people with a learning disability and/or autism in these settings who in many cases could, with the right support, be in the community, but half of them are in independent hospitals. The independent hospital sector is expanding—to the horror, it must be said, of very many people. The average cost of a placement in an assessment and treatment unit for people with a learning disability is £3,500 a week. It can be as high as £13,000 a week. The average stay is of five and a half years. This is really not acceptable. Many noble Lords may have seen the excellent piece by Ian Birrell in the Mail on Sunday—not a newspaper I would normally read—which looked at the companies and the significant profits they make from these very lucrative contracts. The article details two giant US healthcare companies, a global private equity group and a Guernsey-based hedge fund, as well as two British firms and a major charity. The point is that these bodies are responsible for deprivation of liberty, and that can neither be acceptable, nor indeed what the Government intended. The Minister needs to provide us with some solution to this problem.

18:00

[Lord O’Shaughnessy]

My Lords, I first thank the noble Baronesses for tabling their amendments and giving us the opportunity to debate, as the noble Baroness, Lady Barker, pointed out, an incredibly important issue. We have heard examples of individuals and institutions where there have been tragic cases of people deprived of their liberty in independent hospitals, and these amendments have given us the opportunity to think about the best way forward to make sure there is proper oversight and authorisation in such cases.

Amendment 16, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Meacher, makes the designated NHS trust the responsible body in independent hospital cases. The amendment tabled by the noble Baroness, Lady Thornton, would make the CCG or local health board the responsible body where a person is accommodated in an independent hospital for the assessment of mental disorder.

As the noble Baroness, Lady Barker, and other noble Baronesses pointed out, stakeholders have raised this issue on many occasions. They have raised concerns about the level of scrutiny in these independent hospital cases. The Bill, as it stands, provides that in most cases the managers of independent hospitals are responsible bodies, meaning that they authorise arrangements carried out mainly in hospitals. The amendments seek to address this by changing the responsible body, and I have great sympathy with their intention.

We know that those in independent hospitals often have particularly complex needs, especially those being assessed or treated for mental disorders. The noble Baroness, Lady Thornton, said we need a solution, but I think there is a different solution, which could improve—if I dare say so—on the amendments tabled by the noble Baronesses. Rather than changing the responsible bodies, it would be even better if we required an AMCP to complete the pre-authorisation review in such cases. We know that the AMCP is a registered professional, accountable to their professional body, and that they would meet the individual, and any other interested parties, in person. The Government believe that independent hospitals would benefit from AMCP involvement, and therefore our intention is to bring forward an amendment, or amendments, as required, in the Commons to deal with this issue and make sure that there is such a role for the AMCP in all deprivation of liberty cases.

[Baroness Thornton]

If I might set this in the vernacular, one of the reasons that we have been so concerned about the conflicts of interest and powers for the care home manager is that we wonder how anyone can be sprung, as it were, from the situation in which they find themselves. How would an AMCP do that? How could they be liberated from the situation they are in if the deprivation of liberty power remains with the chief executive or manager of the private hospital?

[Lord O’Shaughnessy]

The reason is that although the deprivation of liberty would take place in that institution, every single case would be examined by an AMCP. The pre-authorisation review and scrutiny would be carried out by the AMCP. They would have the ability to examine the case, to speak to the person and all other relevant interested persons, and to challenge, if necessary, the circumstances of the deprivation of liberty or the care that had been put in place.

To take the hierarchy of decision-making in a care home, for example, the arrangements are made by, but not carried out by, the care home manager. They are referred to the responsible body for preauthorisation review, and if there are concerns of a problem at the level of the responsible body—an objection on behalf of the person or on behalf of somebody who cares for or is connected to them—it would go immediately to the AMCP. In a sense, this vaults the decision-making process beyond the responsible body and, as the noble Baroness, Lady Finlay, pointed out, there are particular issues over which body ought to take responsibility and go straight to, effectively, the last port of call before the Court of Protection. It provides that degree of oversight and challenge in these cases.

[Baroness Meacher]

A concern is that a lot of these people lose touch with their communities and families—they are often a long way from them. Is the assumption here that if somebody objects, then the AMCP would get involved, but that otherwise the hospital management might remain responsible?

[Lord O’Shaughnessy]

That is a perfectly reasonable question, but the AMCP would absolutely look at every case. There would not need to be an objection raised. I was just explaining the hierarchy for non-independent hospital cases. It would be, in a sense, going to the second-highest port of call for scrutiny that we are considering in other cases to highlight the seriousness of it. There would not be that gatekeeper point which the noble Baroness is worried about.

[Baroness Finlay of Llandaff]

How would we be clear that we knew about all the people who had a deprivation of liberty, if we are depending on that independent hospital to notify and call in an AMCP? That AMCP may be one with whom they end up having an uncomfortably close or cosy relationship. How could there be a degree of independence, when the person signing it off as the responsible body would still be the one with a vested interest in keeping their beds full and their income going, which was the very thing that concerned us about the care home? Is the Minister prepared to meet us and discuss this outside? I understand the intention to have everyone assessed by an AMCP, but I am worried that if we leave it to go to the Commons, some of the concerns that have been raised here may not get carried over.

[Lord O’Shaughnessy]

Absolutely—I would be more than happy to do so. I have tried to demonstrate our intention to deal with the issue, but we remain open-minded about the best way to do it. We have concerns with the amendments as laid—we were trying, if anything, to turbo-boost the approach. I recognise that the noble Baroness is concerned about an overfamiliarity between individuals, which she is trying to make sure that we avoid. There may be other concerns with the model that we are considering. I am more than happy to take that offline, and that would be a very fruitful discussion.

[Baroness Barker]

I am grateful to the Minister for his response, which I will need to think about long and hard. One thing that noble Lords will have to take into consideration is whether an AMCP would have the power to refer a case to the Court of Protection if they felt it necessary. That would be a big factor. I listened very carefully to the Minister, who used the term “hospital manager”. He will know that it has a particular meaning in the Mental Health Act. I have no crystal ball, and neither do other noble Lords, but were the role of the hospital manager in the Mental Health Act to be something on which the forthcoming review sought to make a decision, then would this not be another case for our looking in detail at the synchronisation between this legislation and the Mental Health Act? I welcome the Minister’s response. There is a bit more work to do, and considerable constructive welcome for continued work. With that assurance, I beg leave to withdraw.

Amendment 16 withdrawn.

Amendment 16A not moved.

Amendments 17 to 24

Moved by

[Lord O'Shaughnessy]

17: Schedule 1, page 9, leave out lines 9 to 11

18: Schedule 1, page 9, line 12, after “authority”” insert “, in relation to a cared-for person aged 18 or over,”

19: Schedule 1, page 9, line 12, at end insert—
“(za) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;(zb) if there is an individual development plan for the cared-for person—(i) the local authority responsible for maintaining that plan, or(ii) if the plan is not maintained by a local authority, the local authority whose area the cared-for person is in;”

20: Schedule 1, page 9, line 13, after “if” insert “neither paragraph (za) nor paragraph (zb) applies and”

21: Schedule 1, page 9, line 32, at end insert—
“(4A) In paragraph 6(c), “responsible local authority”, in relation to a cared-for person aged 16 or 17, means—(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;(b) if there is an individual development plan for the cared-for person—(i) the local authority responsible for maintaining that plan, or(ii) if the plan is not maintained by a local authority, the local authority whose area the cared-for person is in;(c) if neither paragraph (a) nor paragraph (b) applies and the cared-for person is being provided with accommodation—(i) under section 20 of the Children Act 1989, or(ii) under section 76 of the Social Services and Well-being (Wales) Act 2014 (anaw 4),the local authority providing that accommodation;(d) if none of paragraphs (a) to (c) applies and the cared-for person is subject to a care order under section 31 of the Children Act 1989 or an interim care order under section 38 of that Act, the local authority that is responsible under the order for the care of the cared-for person;(e) if none of paragraphs (a) to (d) applies, the local authority determined in accordance with sub-paragraph (5).”

22: Schedule 1, page 9, line 33, leave out “and (4)” and insert “, (4) and (4A)(e)”

23: Schedule 1, page 9, line 46, at end insert—
“(7) In this paragraph—“Education, Health and Care plan” means a plan within the meaning of section 37(2) of the Children and Families Act 2014;“individual development plan” means a plan within the meaning of section 10 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (anaw 2).”

24: Schedule 1, page 9, line 46, at end insert—
“10A_ “English responsible body” means—(a) a hospital manager of a hospital in England;(b) a clinical commissioning group;(c) a local authority in England.10B_ “Welsh responsible body” means—(a) a hospital manager of a hospital in Wales;(b) a Local Heath Board;(c) a local authority in Wales.”

Amendments 17 to 24 agreed.

Amendment 25 not moved.

Amendment 26

Moved by

[Lord O'Shaughnessy]

26: Schedule 1, page 10, line 7, leave out “is of unsound mind” and insert “has a mental disorder”

Amendment 26 agreed.

Amendment 27

Moved by

[Baroness Barker]

27: Schedule 1, page 10, line 8, after “necessary” insert “to prevent harm to the cared-for person”

[Baroness Barker]

My Lords, I have good news for the Minister. After all these weeks, I have finally accepted his argument that the best-interests principle in the Mental Capacity Act remains and applies to all decisions made under the Bill. I now agree with him that it is therefore not helpful to reiterate the term “best interests”, as we suggested in previous amendments at a previous stage. The even happier news is that the noble Lord, Lord Hunt of Kings Heath, agrees with me on that.

However, I am afraid that peace and harmony may not have broken out completely. Noble Lords will recall from previous debates that we have argued that the requirement that an arrangement be “necessary and proportionate” seems to be a weakening of the protections for an individual, sitting as it does with no direct connection back to those earlier best interests. We all agree that deprivation of liberty is a very important matter, and the law needs to be in compliance with Article 5. That is why we think the Bill contains a deficiency, because lawful detention is not considered directly in relation to best interests. Therefore, through these amendments, which relate both to the authorisation and the determination, we have attempted to reiterate the current wording of the DoLS legislation regarding a determination being necessary and proportionate in relation to harm to the person. In other sets of amendments and at previous times, we have had discussions about whether decisions are taken on the basis of harm to the person whose liberty is being deprived, or of harm to others. We have tabled this amendment to make it clear that it is harm to the person, and that the proportionality relates to the potential harm to that person if they are not deprived of their liberty.

Much of today’s discussion about deprivations of liberty in domestic settings originates in the failure of many professionals, in making judgments, to remember the part of the safeguards which states that deprivations of liberty must be the “least restrictive option”. It is not wrong to deprive somebody of their liberty, but it must be the least restrictive option to avoid harm to that person. We have therefore concluded—again, in discussion with stakeholders—that this amendment to the Bill would lead to greater clarity.

I can hear the words “code of practice” coming to the fore. One point on which we have never had an agreement is reliance on the code of practice. Very few pieces of legislation have a code of practice, and in health there are only two: this Act and the Mental Health Act. Anything which resides in a code of practice rests upon statute in order to be lawful. When there are arguments about whether a deprivation of liberty is lawful, those arguing the case, particularly judges, do not go to the code of practice but to the statute. What is contained in the statute may be minimal, as this is; we are simply talking about a sentence which says that that action must be “necessary and proportionate” with regard to the harm to that person. A code of practice can go on for pages and pages and include numerous examples, as it should, so that practitioners know where they are. But it does not and never will carry the legal force which comes from the wording in the Act.

18:15

Therefore, I make it clear to the Minister that we have thought long and hard about how to deal with this issue, which we have argued back and forth over the past few weeks, in a way that offers the greatest legal clarity and assurance to people who will be subject to this law, to their families and to practitioners who have to interpret it. With that in mind, I beg to move this amendment, and I have to say that at this point, reassurances about anything in a code of practice will not suffice.

[Baroness Finlay of Llandaff]

I endorse the comments of the noble Baroness, Lady Barker, in moving this amendment. One of the reasons that it should be in the Bill is that we have been trying to have the cared-for person at the heart of our deliberations, and the wording here is completely compatible with other parts of the Mental Capacity Act.

There is a terrible tendency when people look at the least restrictive option to also think about what might be convenient for them. The least restrictive option might not be the easiest, and might mean that staff have to behave in quite a different way. By wording these two amendments in this way, we are looking at the risk of harm to the person specifically, and are keeping the person at the heart of this. There always will be a risk that decisions will be contested in court and will need to go to court, and an application to the court may be judged specifically against that test, because it is in the Bill. If it is in the code of practice, there is a real danger that it could be downgraded.

[Baroness Thornton]

I put my name to this amendment, and we on these Benches very much support the intention behind the amendments in this group.

I bow to the fact that the noble Baroness, Lady Barker, has lived and worked with this for a very long time indeed, has reviewed the Mental Capacity Act and was very influential in the way it was formed. There has been a lot of discussion with stakeholders about this group of amendments and how we can best express “necessary and proportionate” in a way that will strengthen the Bill and prevent harm to the cared-for person. These amendments do that, providing clarity. Again, as I mentioned in the previous debates, because this is to do with protection and powers, it has to be in the Bill and not the code of practice. I hope that the Minister will agree to the amendments, because it is probably the best way forward, and that he will end this discussion in harmony and agreement.

[Lord O'Shaughnessy]

As the noble Baroness knows, I am all for harmony and agreement.

I thank the noble Baronesses for laying these amendments, and I accept the point made by the noble Baroness, Lady Barker, about her gracious acceptance of the role of the best-interests test. I recognise that she has some serious concerns about this legislation, which I take seriously. I have been determined to work closely with her, and I am grateful for her reciprocation in that process as we have moved ahead.

These amendments seek to specify that the necessary and proportionate assessment must be undertaken by reference to whether an authorisation is needed explicitly to prevent harm to the person. We know that an assessment of whether the arrangements are necessary and proportionate is key to ensuring that liberty protection safeguards will afford people their protections and human rights, and is a requirement of the European Convention on Human Rights. There are many factors which would need to be considered in the necessary and proportionate assessment, including the wishes and feelings of the person, whether any less restrictive measures can be put in place and the risk of harm. That is the issue that is the subject of these amendments.

Importantly, these amendments raise the issue of considering risk of harm to the cared-for person during the assessment by including that expressly and explicitly in the Bill. However, my concern is that that may be at the cost of other factors that ought to be properly considered during the assessment process. If these amendments are passed, one of the factors which may not be properly considered in the assessment process is the risk of harm to others, which the Law Commission said should be explicitly considered within a necessary and proportionate assessment, as well as risk to self. There are cases currently under the DoLS system where the risk of harm to others is an important factor in the justification for deprivation of liberty, such as a person with Lewy body dementia who may need restrictions in order to prevent harm to people in the community.

Furthermore, ensuring that no harm could come to a person is in some cases intertwined with ensuring that no harm comes to others. For example, there could be a retaliatory attack as a result of harm caused by a person to someone else. These amendments would mean that by focusing solely on harm to self in the Bill, it could be more difficult for assessors to make those balanced decisions. I therefore have some concerns about the amendments tabled by noble Baroness, as they could perpetuate the current confusion surrounding cases that involve some degree of harm to others. They could also lead to an increased use of the Mental Health Act, since the liberty protection safeguards might be interpreted as being ruled out in all harm-to-others cases. We would not want to see the Act used in this way.

Therefore, in the spirit of consensus and moving forward, I have carefully considered whether the Bill should be amended—or whether the Government could support such amendments—to explicitly set out inclusion of the risk of harm to the person. I am afraid I am going to disappoint noble Lords by saying that it would be better set out in the code of practice. I emphasise that we have considered the issue in detail, and we believe that the code of practice has sufficient force. On that basis—although I know that she will not do so—I encourage the noble Baroness to withdraw her amendment.

[Baroness Barker]

I thank the Minister for his reply. The problem that I have is that it leaves the guidelines for decisions to deprive people of their liberty because of harm to others in a code of practice, not the legislation. I do not believe that that is the right place in which to make that law. I absolutely accept that it is sometimes necessary to make a decision about a deprivation of liberty, and that part of that decision-making might be about the risk the person poses to others. However, that should not be determined in legislation fashioned on a set of principles and practices that are about harm to self, which is what the Mental Capacity Act is all about. A substantial judgment that will impact on people’s lives is buried away in a place where it is very unlikely ever to rise sufficiently up the scale of legal concerns or ever to be tested in court. That is my problem; that is what I think is wrong. It is therefore important that we in this House make a statement now to the Government about the importance of this issue, so I would like to test the opinion of the House.

18:24

Division 1

Ayes: 202

---

Labour: 104
Liberal Democrat: 71
Crossbench: 18
Independent: 5
Green Party: 1
Bishops: 1
Plaid Cymru: 1

Noes: 188

---

Conservative: 170
Crossbench: 8
Independent: 4
Democratic Unionist Party: 3
Ulster Unionist Party: 2
Bishops: 1

Amendment 28

Moved by

[Baroness Barker]

28: Schedule 1, page 10, line 8, at end insert “in relation to the likelihood and seriousness of harm to the cared-for person”

Amendment 28 agreed.

Consideration on Report adjourned.

Yemen: UN Security Council Resolution

Wednesday 21st November 2018 Lords Chamber

Statement

18:41

[Baroness Goldie (Con)]

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend the Foreign Secretary. The Statement is as follows:

“I am grateful to the honourable Lady for raising this vital issue. The conflict in Yemen has escalated to become one of the worst humanitarian disasters in the world. Today, 8 million people—nearly one-third of the population—depend on United Nations food aid. Starvation and disease have taken hold across the country. More than 420,000 children have been treated for malnutrition and 1.2 million people have suffered from a cholera epidemic. In total, about 22 million people across Yemen—nearly 80% of the population—are in need of help. Yet the bare statistics cannot convey the enormity of this tragedy. What we are witnessing is a man-made humanitarian catastrophe, inflicted by a conflict that has raged for too long.

Britain is one of the biggest donors of emergency aid, providing £170 million of help to Yemen this year, bringing our total support to £570 million since 2015. But the only solution is for all the parties to set aside their arms, cease missile and air attacks on populated areas, and pursue a peaceful political settlement. Last week, I conveyed this message to the leaders of Saudi Arabia and the United Arab Emirates, which lead the coalition fighting to restore Yemen’s legitimate Government, when I visited both countries. On Monday, I said the same in Tehran to the Foreign Minister of Iran, which backs the Houthi rebels. On the same day, I instructed our mission at the United Nations to circulate a draft resolution to the Security Council urging a ‘durable cessation of hostilities’ throughout Hodeidah province, and calling on the parties to ‘cease all attacks on densely populated civilian areas across Yemen’.

This draft resolution also requires the unhindered flow of food and medicine, and all other forms of aid, ‘across the country’. The aim of this UK-sponsored resolution is to relieve the immediate humanitarian crisis and maximise the chances of achieving a political settlement. Martin Griffiths, the United Nations envoy, is planning to gather all the parties for peace talks in Sweden in the next few weeks.

Amid this tragedy, the House will have noticed some encouraging signs. Last week, Saudi Arabia and the United Arab Emirates paused their operation in Hodeidah, although there was a further outbreak of fighting yesterday. The Houthi rebels have publicly promised to cease their missile attacks on Saudi Arabia. Martin Griffiths is meeting all parties as he prepares the ground for the talks in Sweden. Britain holds a unique position as the pen holder for Yemen in the Security Council, a leading humanitarian donor and a country with significant influence in the region, so we will make every effort, and use all the diplomatic assets at our command, to support the United Nations envoy as he seeks to resolve a crisis that has inflicted such terrible suffering”.

18:44

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating the response to that Urgent Question and welcome the resolution, despite the fact that the United Kingdom had been sitting on a draft for two years. I also welcome the fact that it covers the five areas identified by Mark Lowcock on 23 October. In the debate in this Chamber last Thursday, I expressed the hope to the Minister, the noble Lord, Lord Ahmad, that other vital issues would be covered in any draft resolution, particularly the need for accountability for war crimes and human rights violations.

In the other place, the Foreign Secretary said that this is not the last word but the beginning of the process. He said that the priority is to build trust, but trust can only be sustained in the knowledge that no party can act with impunity. Jeremy Hunt said that he gave a tough message on the need to investigate war crimes. Was it in the draft which he discussed in Saudi Arabia with the Crown Prince? If it has been removed, how does the United Kingdom intend to ensure that the tough message it has already given holds and is implemented in the future?

[Baroness Goldie]

I thank the noble Lord for his question and for referring to last week’s extremely well-informed and useful debate in this House, which raised important points. I think the noble Lord will understand that there is a delicacy in the diplomacy which is about trying to ensure that as many parties as possible are encouraged to group round the resolution. As he is aware, the draft has been circulated at the United Nations. My right honourable friend the Foreign Secretary detailed, in the other place, a summary of what is in the motion. I reassure the noble Lord that the underlying purpose of a change in language from previous resolutions has been to try to build a consensus. We recognise that that is the best way of trying to find some form of agreement, if not to bring this dreadful catastrophe to an immediate close then at least to introduce the prospect of better conditions for people in Yemen. That is why, as he will be aware, the draft motion is constructed around getting in aid and humanitarian help; getting a ceasefire; and getting some movement on a political settlement. Very importantly, and at the behest of Martin Griffiths, the special envoy, it is about getting the parties to Sweden, hopefully later this month or, if not, in early December, to sit round a table.

On the other aspect to what has been happening in Yemen and whether that constitutes war crimes or contraventions of international humanitarian law, that would be a matter for determination once we have restored more order to the ground in the country. There is such disorder at the moment—it is a very fractured country—that it is very difficult to obtain reliable information about what has been happening. I think that everyone would regard the absolute priority to be trying to improve the desperate and distressing situation for so many people in Yemen.

[Baroness Northover (LD)]

My Lords, I too thank the Minister for repeating the Answer to the Urgent Question. She is absolutely right that the situation in Yemen is truly appalling. What progress is being made to secure the Security Council resolution to which she referred? When will this be put to a vote and why has it taken so long to get to this stage, given the United Kingdom’s lead in this area? There are reports that Saudi Arabia and its allies have been hindering this. Can she cast any light on that? Does the United Kingdom support a nationwide ceasefire? What is proposed at the moment is much more limited than that. The US Government have stopped refuelling coalition planes. Germany, the Netherlands, Norway and others have stopped arms sales. Surely we should be doing the same.

[Baroness Goldie]

I thank the noble Baroness for her question. Part of my answer echoes what I already said to the noble Lord, Lord Collins, in that I would dispute her assessment of feet dragging. Britain has been at the forefront in trying to engage with partners at the United Nations and, as my right honourable friend said, to broker a solution. What has been done skilfully is to try to find a form of language which, instead of deterring and deflecting people who genuinely want to do something to help, brings them into the tent and invites them to be participants on that ultimate road to finding help.

On the question of arms sales, many people have strongly held views about this but, as she will be aware, this country operates a very strict check on our arms exports to any country, whether to Saudi Arabia or anywhere else. It is very clear—I believe the noble Lord, Lord Hannay, raised the specific point in the debate last week—that the continued test is this: is there a clear risk that those items subject to licence might be used to commit a serious international humanitarian law violation? If that were the case, we would not agree to the exports being made. We constantly monitor the situation. The assessment process is very robust. It is a combination of DIT, FCO and MoD, and we certainly try to ensure that any exports could not possibly be used for malign purposes.

As to the progress of the draft resolution at the United Nations, the noble Baroness will be aware—and we should pay tribute to Karen Pierce—that there has been a very energetic diplomatic endeavour for the UK. That should be recognised and praised. There is diplomatic activity going on to try to engage people with the draft resolution, attract support for it and try to ensure that the Swedish meeting can take place. People are hopeful that that might provide an opportunity, away from the area of conflict, for people to begin to talk constructively about the way forward.

[Lord Cormack (Con)]

My Lords, I am sure we would all want to endorse what my noble friend has just said about the efforts that are being made, but does not this ghastly human tragedy bring sharply into focus the need for more adequate peacekeeping from the United Nations? Could we not, as a nation and a permanent member of the Security Council, try to initiate some form of in-depth discussion on how much better the United Nations could become at peacekeeping? There was a concept some years ago called “Shield”, which called for a rather more international army than exists at the moment. Millions of people have suffered in recent years, especially in the Middle East. If there were more-adequate peacekeeping from the UN, that might not have happened.

[Baroness Goldie]

I thank my noble friend; he makes an interesting point which I am sure will be noted and reflected upon. My observation in relation to Yemen is that the ability of any group to achieve peacekeeping is only as good as security on the ground. Unfortunately, we have seen in Yemen a turbulent, unpredictable environment—a fractured country with huge security risks. That is why the priority at the moment has to be finding a ceasefire and a political settlement.

[Lord Campbell of Pittenweem (LD)]

My Lords, I associate myself with the observations of the Minister about Karen Pierce. She is an outstanding public servant who has much experience at the United Nations. I understand that consensus is the objective, but if consensus cannot be achieved, is it not necessary to press this resolution to a vote so as to expose those who are opposing humanitarian relief?

[Baroness Goldie]

I thank the noble Lord for his comments. Things are at a delicate stage. It is perhaps prudent in the circumstances, given the progress that has been made, to allow a little time to elapse to see if the diplomatic endeavours can bear fruit. They may very well do that. If not, we certainly want the talks in Sweden to happen and to progress, but there is no doubt that a careful eye will be kept upon the progress of the draft resolution at the UN. The noble Lord is quite correct: we shall have to review the position depending on what is happening.

Police, Fire and Crime Commissioner for North Yorkshire (Fire and Rescue Authority) Order 2018

Wednesday 21st November 2018 Lords Chamber

Motion to Regret

18:55

Moved by

[Baroness Pinnock]

That this House regrets that the Police, Fire and Crime Commissioner for North Yorkshire (Fire and Rescue Authority) Order 2018 has been brought forward despite the constituent councils, the North Yorkshire Police and Crime Panel, and North Yorkshire Fire Authority being opposed to the proposals; further regrets that no detailed assessments have been undertaken by the Police and Crime Commissioner’s Office as to the impact of the proposals; and expresses serious concern that the proposals could severely impact on the fire services’ capacity to serve residents across York and North Yorkshire (SI 2018/970).

[Baroness Pinnock (LD)]

My Lords, the policy objective in the Policing and Crime Act 2017 was to enable police and crime commissioners to take over the control and oversight of fire authorities. The aim was to achieve greater collaboration and collocation of these two services which respond to emergencies. That objective is not challenged in this Motion; the means to achieve that outcome are, we contend, in the case of North Yorkshire, fundamentally flawed.

The North Yorkshire police and crime commissioner, Julia Mulligan, published a report in October 2016 in support of a single leadership model by the PCC for both police and fire services. A business case was developed to support the proposition, and this was assessed on behalf of the Home Office by CIPFA. The CIPFA report is revealing. It looked at the consultation undertaken by the PCC. Three models were proposed. These were labelled: “representation”, “governance”, and “single employer”.

From the outset, the consultation was skewed to get support for a PCC takeover. The public—who will be barely aware that a PCC exists and probably also not aware that the commissioner is a single elected politician —opted for the so-called governance model. Why was it not described as it is—that is, as a commissioner model? Was it deliberately or inadvertently designed to mislead? The CIPFA conclusion on this consultation was that the choice between a councillor-led representation model and a single elected politician governance model was a political issue outside of its remit.

The CIPFA report then proceeded to assess the PCC’s business case on the basis of economy, efficiency and effectiveness. Currently the joint expenditure for the police and fire services in North Yorkshire is £169 million. On the measure of economy, which is minimising the cost of resources used, the CIPFA conclusion was that,

“there is an absence of quantified benefits”,

in relation to any reduced costs of these inputs.

On efficiency savings, the business case assessed that £660,000 at net present value can be saved per annum. This is achieved largely by joint appointments of senior staff and, crucially, includes one-off benefits of capital receipts from the sale of sites and buildings, which could well be achieved under the existing models. Of course, many smaller local authorities have used this route for so-called back-office savings for several years, and this has been done without compromising the status of the individual authorities. Indeed, the police and fire services in North Yorkshire have already been developing collaboration via a collaboration committee, which is already proving to be an effective way to secure improvements, with agreement by both services and without the disruption of a significant change in governance model. The overall CIPFA conclusion paints a more balanced picture, that efficiency savings lead to a net cost reduction per annum of a mere £36,000. Is it for this that the Home Office is allowing such upheaval?

On the effectiveness measure, the CIPFA assessment stated that:

“Proving a direct link between the governance model and effectiveness is a subjective process”,


but that, “On balance”, it,

“has the potential to have a positive impact”.

I contend that that is hardly a resounding endorsement. CIPFA concludes that,

“the Governance Model will be in the interests of efficiency. However, the savings directly attributable to the change are modest”.

That is the understatement of the year.

19:00

It is therefore hardly surprising that all the constituent councils in North Yorkshire—the county council, the City of York Council, the North Yorkshire police and crime panel and the North Yorkshire fire and rescue authority—all opposed the takeover by the PCC. All political parties in North Yorkshire are of one mind on this, and the PCC, a Conservative politician, has completely failed to garner the support of any of her locally elected Conservative colleagues. The decision to move from a multi-member, multi-political party model to a single politician is an affront to local democracy.

Accountability is a further area of consideration that was not tested either in the PCC’s business case or, consequently, by the assessor. A police and crime panel scrutinises the PCC but has very limited powers to call the PCC to account for wrong—or even wrongful—decisions. It is the epitome of the toothless tiger. It can scrutinise the precept and the PCC’s policing plan, but that is about it. Even where there are challenges to PCC decision-making, there are no means of redress. Public accountability for funds raised through taxation ought not to be regarded in such a frivolous fashion. When poor decisions are made, where will the public look for answers and accountability? It is risible to claim that the election of a PCC every four years—an election that excited a mere 22% of the electorate in North Yorkshire in 2016—is evidence of democratic accountability.

The geography of North Yorkshire has not been mentioned once in any of the reports I have read. The North York Moors and Yorkshire Dales are indeed glorious, but transport across those moors and rolling landscapes is not easy. The geography demands more service points than the PCC business case assumes.

In the conclusion to the report, the government assessor stated that “modest savings” could be achieved by the proposal. The report was too kind; meagre savings is a more accurate description. The impact on vital public services has, astonishingly, not been assessed. Savings, even under the heading of efficiency and effectiveness, can have a cost. That cost has been completely ignored in an unseemly grab for power. Politicians reject it. The business case offers only modest savings and efficiencies. The impact on vital public services has been ignored. I ask the Government to reconsider the decision. I certainly regret it. I beg to move.

[Baroness Harris of Richmond (LD)]

My Lords, my contribution to this regret Motion will necessarily be rather more targeted, as the area in question is my area of North Yorkshire, the largest single rural county in England. I was a county councillor there for 20 years and chaired its police authority for a number of those.

The Minister certainly knows my firm opposition to the introduction of police and crime commissioners. Indeed, some of your Lordships will recall that, with help from many of your Lordships, I defeated the coalition Government’s proposal—one of David Cameron’s ideas—to bring in a single police commissioner in place of the 17 or 19 members of police authorities. As we see, it was a pyrrhic victory. Nevertheless, the concerns many of us from across the House expressed have been well and truly realised across the country, not least in North Yorkshire.

Our PCC has been embroiled in an unseemly and unprofessional case of bullying some of her members of staff. She was hauled before her police and crime panel, which did a superb forensic job of getting to the bottom of the complaints and asking her to consider her behaviour. I am told her response to them was arrogant in the extreme: she denied the complaints and then tried to complain about the way she had been treated by the panel. She was found guilty of bullying behaviour, and I understand more complaints are in the pipeline.

This is a PCC who wanted to put a new police headquarters on a piece of land in the middle of a field in a small rural village. This is a PCC who auctioned off the contents of silver cabinets and much else from the old police headquarters without first asking if former officers would like to bid on any of the contents, in which many of them had a particular—and, in some cases, personal—interest. This is remembered with much anger and bitterness.

She treats people who disagree with her with utter contempt. She certainly treats members of the PCP like that. It does not stop there. All the local political parties in North Yorkshire, as we have heard from my noble friend, were opposed to her taking on the running of the fire and rescue authority. No one I have spoken to thinks she is a fit and proper person to undertake such a responsibility. The fire and rescue service in North Yorkshire certainly does not want it, but that has now been foisted on it by government decree. All the consultation the PCC says she has undertaken to establish her business case went by the board. She took absolutely no notice of anyone.

Our fire and rescue authority was not underperforming in any way. Indeed, I was a member of it many years ago, and there was always a good collaborative relationship between partner agencies. Why should the PCC want to take it over? It was running perfectly well. She says she can save a lot of money by doing so. The report in the Press in York says that she is already, just a few days into her new job, contemplating slashing the fire service. She claims the independent report she received said that the service was in an unsustainable financial position and that she would have to identify savings and set an emergency budget. She says that, as North Yorkshire’s PCC, she has saved thousands of pounds since taking over from the old police authority. I find this hard to believe. When I helped set up our first police authority in North Yorkshire, we had a clerk, a secretary and a clerical assistant. She has at least 14 members of staff. I cannot imagine that her wage bill is less than mine was, even accounting for the remuneration of police authority members.

Indeed, it appears that she has led North Yorkshire Police into its worst financial crisis since the millennium. There is a £10 million shortfall this financial year, which may come as a surprise to the people of North Yorkshire as there has been no public acknowledgement of this gathering storm. It is strange to compare that with how widely her takeover of the fire service has been publicised. She promises a proper, transparent plan for dealing with this. I wish her luck with the Fire Brigades Union.

Unfortunately, it is the Government’s idealistic policy that has brought us to this point. No proper scrutiny by anyone with any experience or knowledge of the fire and rescue service was brought in to assess her business case. The CIPFA report even acknowledged that there was no overwhelming case for change, yet the Government decided to back this politically ambitious woman, who has absolutely no experience of the fire and rescue service.

York, which has world heritage status, is fearful that some of the PCC’s proposals for saving money will reduce even further the funding of the fire and rescue service. Local councillors, who know their area best and who would have had input into any suggested changes to fire service provision, will have no say whatever from now on. York already suffers from being among the worst funded places in the country for public services, per resident, so their concerns are well justified.

Can the Minister tell me what contingencies will be put in place if all does not go according to plan and there is a major fire in the county? She will remember the devastating fire which engulfed part of the glorious York Minster some years ago. It was noted worldwide, such is the importance of that historic building. Indeed, all North Yorkshire firemen who helped to put out the fire on that fateful morning received a specially struck St William’s Cross for their bravery in tackling the blaze, and they are still worn on their ceremonial uniforms to this day. Reducing the number of engines and personnel in the fire and rescue service will do nothing to assuage the concerns of the people of York, who also rely heavily on them to deal with the severe flooding that York suffers from regularly.

In conclusion, I am very concerned that the PCC for North Yorkshire has been allowed to take over the fire and rescue service while still having further charges of bullying brought against her. The Minister, in an Answer to a Written Question about the police and crime panel’s power to hold the PCC to account, which I am grateful for, simply stated:

“Police and Crime Panels have the appropriate powers to effectively scrutinise the actions and decisions of Police and Crime Commissioners and enable the public to make an informed decision when voting”.


Well, the PCP did, but it has absolutely no power to hold the PCC to account or to correct her if necessary. It can do barely more than disagree with her. PCPs need proper teeth, as we urged the Government to give them during the passage of the Police Reform and Social Responsibility Bill back in 2011. PCCs can get rid of chief constables on a whim, it seems; no one can get rid of a PCC except the electorate, and they have to wait for an election to do so.

Therefore, I again ask the Minister: when will the Home Office give police and crime panels enough power to hold PCCs properly to account for their behaviour and, further, enable them to enforce any recommendations they might have? Until this PCC can understand that leadership means listening to people and taking them with her, rather than bullying them, she is not suitable to hold such a vital office.

[Lord Harris of Haringey (Lab)]

My Lords, it is, as ever, a pleasure to follow the noble Baroness, Lady Harris. However, I am slightly concerned that the reputation that I may have in your Lordships’ House of sometimes being rather blunt and trenchant will be sidelined by what the noble Baroness has just said.

I am not going to talk about North Yorkshire at all—I appreciate that that is perhaps not in the spirit of this debate—but I want to pick up just one point from what the noble Baroness has said. When police and crime panels were set up as a sort of safety net in respect of police and crime commissioners, they were very much a governmental afterthought. Very little thought was given to their composition or how they could be made effective, or indeed to the powers they might have. After six or seven years, now might be a good time for the Government to review the role of police and crime panels, how they might be made more effective and useful, and how they might effectively hold police and crime commissioners to account.

However, my reason for speaking in this short debate—I will do so fairly briefly—is to ask some questions about Home Office policy on police and fire mergers. The Home Office was extremely enthusiastic about this at first, but I get the sense that Ministers have rather gone off the idea: it is proving to be rather more complicated and is not demonstrating quite the benefits that they had hoped for. Therefore, I wonder whether the police and crime commissioner for North Yorkshire is not being hung out to dry on this issue, in that she no longer has quite the same enthusiastic support and facilitation that the Home Office might offer to make this policy work. I would be grateful if the Minister told us whether the Government’s commitment is still as intense as it was when this power to bring together police and fire was first introduced.

While she is answering that question, perhaps the Minister can tell me where we are with the role of police and crime commissioners in the areas they represent and the wider criminal justice organisation. Areas of synergy between the police and fire services are rather limited. There are a few, although not quite as many as people think; it is not just that people wear a uniform and go out and help people. There are far more synergies between the policing role in a local area—particularly in relation to the objective of reducing crime—and some of the other criminal justice responsibilities. For example, bringing together responsibility for oversight of the police and responsibility for oversight of the probation services—in particular, the monitoring of ex-offenders and those who have been through the courts—might produce far more savings for the country at large and the criminal justice system as a whole.

I wonder where the Government’s thinking is on that. If I remember correctly, there was a clause that said rather vaguely that this could be looked at at some stage in the future, but the Ministry of Justice was not very keen, so it did not get any real teeth in the original legislation. However, the Home Office ought to be directing its attention to delivering real savings, to turning people away from crime and to reducing the crime figures. I would be very interested in knowing what the current Home Office policy is on that matter.

19:15

[Lord Paddick (LD)]

My Lords, I strongly support my noble friend Lady Pinnock. The whole reason for establishing police and crime commissioners was supposed to be to increase the democratic accountability of the police service. In fact, as we have heard, the only way that PCCs can effectively be held to account is through the ballot box, and then only at four-yearly intervals. As we know, in most parts of the country, votes for the PCC are usually cast along established party-political lines and are not a referendum on the performance of the PCC at all.

As my noble friend Lady Pinnock said, police and crime panels, allegedly designed to hold police and crime commissioners to account, are in fact a toothless Singapura, let alone a toothless tiger, as the noble Lord, Lord Harris of Haringey, said. My noble friend Lady Harris of Richmond provided an example from North Yorkshire of how powerless the panels are.

This supposed increase in local democratic accountability of the police is being extended so that PCCs can take over fire and rescue services—something that we on these Benches opposed when the legislation came before this House. PCCs already have a very big job on their hands, being responsible not only for the delivery of policing services in their area but for commissioning and co-ordinating other services to reduce crime and disorder. The Government may be in denial about it, but the level of crime and disorder is increasing, and violent crime in particular is reaching alarming levels across the country. PCCs already have enough on their plate.

This so-called experiment in local democracy can result, as it has here, in local democratically elected representatives of all parties—who have wider responsibility for the delivery of local services, not just the police service, and have the “big picture” in terms of their local areas and the funding of all local services—being totally ignored. The very body that is supposed to hold the local PCC to account also opposes what this PCC proposes to do. How can the Government maintain that the PCC taking over the fire and rescue service in North Yorkshire is in the best interests of local people when the benefits are questionable, or meagre, as my noble friend said, and the constituent councils in North Yorkshire—the county council, City of York Council, the North Yorkshire police and crime panel and the North Yorkshire Fire and Rescue Authority—all oppose this move?

Whether it is the police service or the fire and rescue service, multi-party, multi-member authorities will always be able to take a more balanced, more accountable and more democratic approach than a sole individual, who, among other things, can raise the police precept locally without any consideration of the overall burden on local council tax payers and without taking any account of other pressing local priorities. The economic, efficiency and effectiveness benefits can nearly always be secured by the emergency services more collaborating without the PCC taking over control of the fire and rescue service. This is all pain and no gain. This move is very much to be regretted.

[Lord Rosser (Lab)]

My Lords, we agree with the terms of the regret Motion. I do not wish to make any specific comments about the police and crime commissioner concerned since I know nothing about the police and crime commissioner in that area. Suffice it to say that my information too, not surprisingly, is that the North Yorkshire police and crime panel has rejected proposals for the commissioner to take on responsibility for both the fire service and the police—or at least what at that time were proposals—and that the panel had urged the commissioner to reconsider what she was seeking in favour of a model that would retain the current fire authority and give the commissioner a voting place at the table. Likewise, as has already been said most eloquently, the local authorities and the fire and rescue authority expressed a clear preference for the representation model. Indeed, the information that I have received—to put it diplomatically—is that the police and crime panel has a difference of view with the police and crime commissioner over the running of her office in relation to issues of bullying and a hostile environment.

I make no comment on the rights or wrongs of it because I personally know nothing about it. I was told that the police and crime panel intended to write to the Home Office to highlight its concerns. I do not know whether it has done so or whether the Home Office has received any such letter. Clearly there is not a very happy relationship between the police and crime commissioner and the police and crime panel in North Yorkshire. One would have thought that, to get to the bottom of it, the Secretary of State would have wanted to know rather more than perhaps he does about working relationships between the two organisations, since that surely must be a consideration in whether you are going to extend the power and authority of the police and crime commissioner. Maybe the Minister will tell us that the Home Secretary has already done that, and that he is satisfied that the police and crime commissioner is in the right and that the police and crime panel has got the wrong end of the stick; I will wait and see what the Minister has to say on that.

I refer to the independent assessment on which the judgment was made that the criteria of economy, efficiency and effectiveness have been met, and indeed of public safety. On economy, in the section headed “Our Overall Assessment”, the report says:

“Our overall view on economy is that it has received little attention in the LBC”—


the local business case—

“and there is an absence of quantified benefits in relation to any reduced costs of inputs”.

Later in the paragraph, having referred to other issues, it goes on to say:

“On that basis we are unable to reach an objective conclusion on whether the proposal will meet the specific criterion of increased economy”.


Then, looking at the issue of efficiency, the independent assessment says:

“As we noted above nearly all of the savings in the LBC arise from efficiency savings”.


I am not reading out the full paragraph, but it states that:

“The only savings which can be attributed directly to the Governance model are those arising from changes in the structure of the OPCC and the FRA”—


the office of the police and crime commissioner and the fire and rescue authority—

“i.e. those savings referred to as Direct Governance Benefit”,

in the local business plan.

As has already been said by the noble Baroness, Lady Pinnock, the report goes on to say that:

“This leads to a net cost reduction of £36K p.a. from 2019/20 or a total of £204K, net of implementation costs, over the 10 year period of the LBC”.


As has already been said, the independent assessment says:

“However, the savings directly attributable to the change are modest”.


That is probably one of the understatements of the year, if you are talking about savings as low as that; and it is based on the figures that have been put forward by the police and crime commissioner and the assumptions being made proving to be correct.

Turning to effectiveness, the report says:

“Proving a direct link between the governance model”—


which is what the police and crime commissioner wants—

“and effectiveness is a subjective process”.

It ends—it is debatable whether you think this is an endorsement—by saying:

“On balance our view is that the proposed change in governance has the potential”—


I emphasise “potential”—

“to have a positive impact on effectiveness”.

In other words, the independent assessment could not produce the evidence that the change would have a positive impact on effectiveness; it would have only the potential to have a positive impact on effectiveness.

In the next paragraph—I am not reading out the whole paragraph—the assessment says:

“Having reached that conclusion we would add that there is no overwhelming case for change and that most of the proposed changes could be achieved under the other three options, subject to the willingness of all the stakeholders to work together”.


The assessors were also asked to comment, I think, on the issue of public safety, and their comment was,

“this is a very subjective area to assess”.

They concluded by saying:

“On that basis we have concluded that there is no increased risk to public safety due to the proposed change in governance”—


that is a relief—

“and that there may be benefits in the future”.

If that is a ringing endorsement of the PCC’s plan, I think the Secretary of State has got it all wrong, because, as I understand it, it is on the basis of that independent assessment that he has agreed the proposal. Subject to what the Minister may say in response, he does not seem to have taken much account of working relationships—for example, the PCC’s relationship with her police and crime panel, and perhaps with other people as well, including her own staff.

In concluding, I simply say that if the independent assessment is deemed sufficient to meet the criteria of economy, efficiency and effectiveness, it is very unlikely that any future proposal from a PCC to take over a fire and rescue authority will ever be anything other than approved by this Secretary of State.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have taken part in this debate, particularly the noble Baroness, Lady Pinnock, who secured it. As noble Lords will know, the Policing and Crime Act 2017 helps to make collaboration far more commonplace than it was hitherto. It placed a new duty on the police, fire and rescue and emergency ambulance services to keep collaboration opportunities under review and, where it is in the interest of their efficiency and effectiveness, to put those opportunities into practice. Let us not forget the rationale for a broad and non-prescriptive duty. It is for those with clear, local accountability to accelerate local emergency service collaboration.

As noble Lords will be aware, the Act also enables PCCs to take responsibility for the governance of fire and rescue services to drive that greater collaboration between policing and fire, which is what we are discussing this evening. Sir Ken Knight’s 2013 review of the fire and rescue service concluded that PCCs,

“could clarify accountability arrangements and ensure more direct visibility to the electorate”.

His findings were clear. The patchiness of collaboration across the country—I can attest to that myself—will not begin to change consistently without more joined-up and accountable leadership.

The directly accountable leadership of PCCs can play a critical role in securing better commissioning and delivery of emergency services at a local level. I pay tribute to the noble Lord, Lord Bach, for the work that he is doing to this end, and of course to Greater Manchester and the excellent work done in that area.

I have visited the police authority and seen the current PCC in action and I can certainly attest to the more visible model that PCCs represent. They are directly elected by the communities they serve, and it is the public who hold PCCs to account in the most powerful way—at the ballot box. I know the noble Baroness, Lady Pinnock, questioned the visibility of the PCC but, even though I was on a police authority, I am not sure I could name every member. However, everyone in Greater Manchester knows the PCC.

Last month marked a year since the first police, fire and crime commissioner was established in Essex. Roger Hirst set out a raft measures—

19:30

[Lord Harris of Haringey]

I just wanted to correct the Minister. There is no PCC in Greater Manchester; there is an elected mayor.

[Baroness Williams of Trafford]

I beg your pardon. I am sorry—I was making a point about visibility and I knew that the noble Lord would pick that up the moment I said it.

A public consultation on Roger Hirst’s fire and rescue plan, outlining the fire and rescue service’s priorities over the next five years, will soon go live. Staffordshire’s police, fire and crime commissioner, Matthew Ellis, is also beginning to make real headway. For instance, a shared occupational service is providing readily accessible mental health support for all police and fire staff. I know noble Lords will join me in commending such a worthwhile service.

Last week, we saw the third police, fire and crime commissioner established in North Yorkshire, which is the subject of this debate. I am grateful to all those who have taken part. I have listened very carefully to the noble Baroness and her concerns, but I say with great respect that I disagree with the assertions levelled in her Motion. She expressed concern about the lack of assessment undertaken by the PCC. I regret that this betrays a misunderstanding of the robust process that is in place before a governance transfer is approved. Before a proposal is submitted to the Home Secretary, the police and crime and commissioner must publicly consult with all relevant local authorities, local members of the public and those employees who may be affected by the proposal. Commissioner Julia Mulligan duly undertook a public consultation to garner views on her proposal. The consultation ran for 10 weeks and received over 2,500 individual responses from residents, local businesses, employees from the police and fire service and local authorities.

Opposition to the proposal was not widespread, as the noble Baroness maintained. It is clear that the status quo in North Yorkshire had not been aiding collaboration across the emergency services. All local stakeholders agreed that some change in governance was needed to aid collaboration. The North Yorkshire branch of the Fire Brigades Union supported a governance change and the PCC’s consultation resulted in over half of respondents supporting the PCC’s proposal to take on responsibility for the fire service.

I accept that that means that some respondents did not support the proposal, but such views were in a minority. These views have been considered very carefully. North Yorkshire County Council and the City of York Council did not support the proposal, as the noble Baroness, Lady Harris, said, and the noble Baroness, Lady Pinnock, highlighted that the fire and rescue authority disagreed with the proposal.

As a result of the objections from North Yorkshire County Council and City of York Council, the Chartered Institute of Public Finance and Accountancy, as noble Lords mentioned, was commissioned to undertake an independent assessment of the proposal. CIPFA is independent, has substantial public sector finance expertise, and experience of working in both the policing and fire sector. Importantly, CIPFA discussed the proposal with local leaders, including the chief fire officer and his senior management team, the leader of North Yorkshire County Council and the leader of City of York Council.

CIPFA concluded that the PCC had conducted a wide-ranging consultation, with public events held on market days, and allowed adequate time for responses, especially taking account of the holiday season. CIPFA also noted that there is,

“no increased risk to public safety due to the proposed change in governance and there may be benefits in the future”,

as other noble Lords noted. On that point, I make clear that maintaining public safety is a core part of the fire and police service’s role. Its commitment to public safety will not be compromised.

The Home Secretary had due regard to CIPFA’s assessment and the PCC’s proposal alongside the consultation and representations made. In June, the Home Secretary was satisfied that the proposal was in the interests of economy, efficiency and effectiveness and did not have an adverse effect on public safety. I reassure noble Lords that the distinction between policing and fire will remain: this is not an operational takeover. I recall the very firm arguments to that end that were made in this Chamber when we discussed the Bill.

The new police, fire and crime commissioner will be subject to robust scrutiny between elections. The police and crime panel has a range of appropriate powers to scrutinise the decisions of commissioners that affect their communities. The Act makes it clear that the functions of the police and crime panel will be extended to include the fire service. The panel will need to ensure that it has the right skills and knowledge relating to fire and rescue, as well as crime and policing. To support this process, a grant uplift has been issued to North Yorkshire County Council, in respect of the North Yorkshire police, fire and crime panel.

Following this Government’s reforms, the North Yorkshire Fire and Rescue Service will also be subject to inspection, which is a key pillar of the reform agenda. I hope that gives the noble Baroness some comfort as to some of the work going forward. I am sure she will be looking forward to the outcome of the inspection.

I am confident that the changes to fire governance in North Yorkshire will take collaboration between North Yorkshire police and fire services further than has been the case to date. The police, fire and crime commissioner, Julia Mulligan, will further develop her plans, as we would expect, but I welcome the emphasis, in particular, on streamlining senior management posts, collaboration on back-office support services and sharing buildings between the two services.

[Lord Jopling (Con)]

Has it crossed my noble friend’s mind that this whole debate is far more about the parties opposite preparing for the next election of police commissioners in North Yorkshire than about the amalgamation of fire and police services in North Yorkshire?

[Baroness Williams of Trafford]

My noble friend makes a very interesting point because this measure was not prayed against. Noble Lords opposite are expressing their feelings in a regret Motion slightly after the event. I share my noble friend’s cynicism.

[Noble Lords]

Oh!

[Baroness Williams of Trafford]

Well, I do. Much of this was debated when we examined the Bill. Many of the issues around scrutiny were debated and I thank noble Lords for the time they took in scrutinising the Bill to make it far more robust in terms of the scrutiny that went on. I see that the noble Lord, Lord Shipley, is in his place; he was one of the people who were absolutely adamant about scrutiny.

The noble Baroness, Lady Pinnock, noted that the savings directly attributed to the proposal were modest and the noble Lord, Lord Rosser, backed that up. CIPFA was of the view that the savings associated with the direct governance benefits were reasonable and that savings for the shared estates and support services were not unreasonable. CIPFA reported that the PCC’s proposals set out estimated net savings of £6.6 million at present value over the 10 years and the noble Baroness pointed that out. CIPFA also highlighted that, in its experience, benefits can be obtained by better procurement and the realisation of the benefits of purchasing on a larger scale, and that it would be reasonable to expect benefits to arise in this area. I do not think any noble Lord could dispute that there are further streamlining processes that could be achieved. There will be some implementation costs associated with the transfer, but many other benefits such as increasing the pace and scale of collaboration, which can have substantial benefits for local communities.

The noble Baroness, Lady Pinnock, questioned the accountability of the panels, saying that they are a bit toothless, and the noble Lord, Lord Harris of Haringey, asked whether they were an afterthought. They were very much the recommendation of your Lordships’ House. Again, the noble Lord, Lord Shipley, was very keen that such scrutiny should take place. The panels enable the public to hold them to account as well and, crucially, they conduct the majority of their business in public—which is not something we could say for previous police authorities.

[Noble Lords]

Oh!

[Baroness Williams of Trafford]

They did not have the public-facing role that—

[Lord Harris of Haringey]

My Lords, the Minister has, unfortunately, said something quite outrageous. I chaired the Metropolitan Police Authority for four years, and the number of times we went into private session was extremely small. Most of those meetings were held in public with television cameras and most of the national press present. That was the balance.

[Baroness Williams of Trafford]

The noble Lord is absolutely right; it was the case in London. Elsewhere it most certainly was not.

[Baroness Harris of Richmond]

Certainly, when I chaired my police authority, we went all around the county and everybody was welcome; we had lots of people there. So what is happening now?

[Baroness Williams of Trafford]

The noble Baroness pinpoints the issue. The public were welcome to attend. The public did not attend.

[Noble Lords]

Oh!

[Baroness Williams of Trafford]

Well, not in great numbers. Anyway, that is a moot point. In Greater Manchester they did not attend.

[Lord Shipley (LD)]

My Lords, the Minister has mentioned my name even though I have not taken part in this debate at all, although I share the concerns of those who have moved this regret Motion. She may be confusing my concerns on scrutiny of the structure and governance of the combined authorities with the statements I made at the time of the passing of the Bill in relation to police and crime commissioners. As I recall, I never felt that the proposal was robust or that the scrutiny arrangements were adequate, because the powers given to the panels in my view were nothing like strong enough.

[Baroness Williams of Trafford]

I apologise to the noble Lord if I am conflating or confusing combined authorities with the PCC role. He certainly was very vociferous on the role of scrutiny in terms of the combined authority.

The noble Lord, Lord Harris of Haringey, asked about the Government’s view on police and fire mergers in terms of the wider role; he referred to justice. I shall go back and ask what future plans are, because I confess that at this point I do not have up-to-date information on that.

Noble Lords asked about claims of bullying and whether the Home Office had received any representation. I confirm that the PCP in North Yorkshire has written to the Policing and Fire Minister regarding those allegations of bullying and harassment levelled at the PCC from members of her own staff. I also confirm that broader questions regarding the scrutiny role of PCPs have surfaced. PCC Mulligan has apologised for the impact that her behaviour may have had on the complainant and is already addressing many of the areas that the panel identified in its recent report.

[Lord Rosser]

I am talking about this in general terms. Is the ability of a PCC to work with those around her—for example, the police and crime panel and her own staff—a factor that is taken into account in considering whether she or he should also have responsibility for the fire and rescue service?

19:45

[Baroness Williams of Trafford]

I do not know whether personal qualities or characteristics are taken into account and I do not feel that I am in a position to opine on this, given that I do not know the detailed circumstances of the complaint. However, the PCC is receiving support from the Association of Police and Crime Commissioners, which is providing a mentoring function. I probably cannot go further than that.

The noble Lord, Lord Rosser, also implied that PCCs seeking to take on governance of their local fire and rescue service should be prevented from doing so where that would have a negative impact on public safety. Public safety is of course the absolute core element of the role of the fire and rescue service, so we would not expect the Home Secretary to approve a transfer where that was compromised.

If I have not answered all the questions that were put to me, I will write to noble Lords in due course. Having heard the Government’s case, I hope that the noble Baroness will be content to withdraw her Motion to Regret.

[Baroness Pinnock]

I thank all noble Lords who have contributed to the debate, which has got more interest than I anticipated, and I thank the Minister for her very considered and careful response, as always. I want to highlight three points that the Minister has made.

The first is about collaboration. I said right from the outset that that is not in question here. As far as I am concerned, the point is well made. There ought to be collaboration between the emergency services, and efforts are being made in North Yorkshire without this change having been imposed on the authority. My second point is about the CIPFA independent assessment, which was underwhelming in its endorsement of the business case put by the North Yorkshire PCC. It could not have been more tepid if it tried. For that reason, we ought not to take into account that the CIPFA report was in favour of this. It found no supporting evidence for the case that was made. The third point I want to make is about the one that the Minister and others have made in the reports that I have read: “It is great to have visibility; we know who the PCC is”. We know who dictators are, actually, and we know that they are transparent in their decision-making, but they are not accountable and neither is a PCC.

For these reasons, the whole situation in North Yorkshire is becoming very difficult indeed, especially when we think that these are emergency services on which people’s lives depend. This is not a game being played, although it has seemed to be by the PCC. This is important stuff. To just say that it will lead to visible decision-making—no, it will not. Decision-making has to be thoughtful, considered and right.

The last comment I want to make is about accountability. The panels that are set have no powers at all to really call anyone to account. It is a single person who makes these vital decisions on emergency services, and the panels can do little or nothing. As we have heard, they have had to write to the Home Office to see if they can sort something out about the collapse in relationships in North Yorkshire.

I respect the Minister and the work she does, but I am afraid that in this instance I am not happy with her responses for the reasons I have given. Given that, I wish to test the opinion of the House.

19:50

Division 2

Ayes: 123

---

Liberal Democrat: 61
Labour: 56
Crossbench: 4
Plaid Cymru: 1

Noes: 138

---

Conservative: 126
Crossbench: 4
Democratic Unionist Party: 3
Independent: 3
Ulster Unionist Party: 2

Crime and Courts Act 2013 (Commencement No. 18) Order 2018

Wednesday 21st November 2018 Lords Chamber

Motion to Approve

20:00

Moved by

[Baroness Vere of Norbiton]

That the draft Order laid before the House on 13 March be approved.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee

[Baroness Vere of Norbiton (Con)]

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for giving me the opportunity to return to this important topic. I should also like to thank all noble Lords for their contributions as we move on.

Electronic monitoring using radio frequency technology has been used nationally as a key element of our criminal justice system for almost 20 years. It has proved to be an effective tool to manage offenders’ compliance with curfew requirements. In any one year, 60,000 people are so monitored and at any one time there are around 11,000 subjects monitored on curfew. For those released on prison licence, legislation also allows for the subject’s location to be monitored either to support a requirement of the licence or to monitor an offender’s whereabouts. The latter is referred to as a stand-alone location monitoring requirement; that is, it is not linked to another requirement.

Furthermore, legislation already exists to permit location monitoring to be used as part of court bail or a community sentence to monitor compliance with a requirement such as an exclusion zone. The order before your Lordships’ House today, which has already been debated in the Moses Room, seeks to commence legislation that will allow courts to impose a stand-alone location monitoring requirement as part of a community sentence when it is considered to be appropriate, proportionate and necessary to do so. Using an electronic GPS tag, an offender’s location will be tracked by satellite using technology similar to that of a satnav. The ankle tag will record the offender’s position and, at frequent intervals, send that data to a monitoring centre via a mobile network. The location data will be retrospective.

The case for stand-alone location monitoring has been supported by two pilots, the first of which was run by the Ministry of Justice and the second by the London Mayor’s Office for Policing and Crime, or MOPAC. The first pilot ran for 18 months across Bedfordshire, Cambridgeshire, Northamptonshire, Nottinghamshire, Hertfordshire, Leicestershire, Staffordshire and the West Midlands. Of the 586 subjects that were tagged, 161 were given a stand-alone location monitoring requirement. Of those, 107 also had an electronically monitored curfew. The tagging was considered to be necessary and proportionate by a court, or a prison governor, having due regard to advice from probation practitioners. The remainder of the subjects had location monitoring imposed to monitor compliance with another requirement; for example, an exclusion zone.

The second, smaller-scale pilot run by MOPAC in the London area was initially intended to run for 18 months, but has now been extended for a further 18 months and will conclude in September 2019. As at the end of October, 100 of the 104 community-sentenced subjects in the MOPAC pilot have been given a stand-alone location monitoring requirement by courts and more are expected. This indicates that decision-makers recognise the benefits of using stand-alone location monitoring in the right circumstances. Indeed, criminal justice boards in the areas included in the first pilot were very keen to see a continuation of location monitoring in general and wrote letters of support.

This has been mirrored by feedback received from offender managers and some offenders during both pilots. That feedback indicates that stand-alone location monitoring provides offender managers with more information on offenders’ movements, allowing for constructive conversations to take place regarding their behaviour, helping to manage the risk of reoffending, aid rehabilitation and help those they supervise to lead law-abiding lives. It can motivate subjects to engage in their rehabilitation, attend addiction therapies, turn up for work or training and to stay away from those people and places that would have a negative influence on their lives. In some cases, it could also provide enough assurance to enable courts to impose a community sentence as an alternative to custody, thereby reducing prison numbers. Let me read to you a comment received from one offender:

“It’s the fact that you can continue to provide support for the people that you care for and you can still work, you can still be around, you can still be a brother, a friend, you can still be a dad. You can still be all those things whilst on GPS that you can’t if you’re in custody”.


This feedback is supported by the independent evaluation of the first pilot, conducted by NatCen Social Research, which will be published shortly. One of the key findings is that partner agencies, probation, police, prisons and courts were keen to use location monitoring to help monitor and manage compliance with bail, sentence and licence conditions. The report highlights that location monitoring was felt to support the effective management of offenders in the community in four key ways: supporting offender rehabilitation; facilitating risk management; helping to inform decisions about whether a wearer should be recalled to custody or court; and providing evidence either to exonerate them or to link them to a crime.

Lessons have been learned from both this pilot and that of MOPAC, as well as from MOPAC’s ongoing pilot, to inform the implementation of the new electronic monitoring service. Those lessons have been incorporated into the ministry’s programme for delivery. For example, subjects reported issues with keeping the tag charged. As a result, the tag will come with a portable charger and subjects will receive alerts when their tag’s battery needs charging. The new service will have an initial phased release at the end of 2018 in the north-west and the Midlands, which will start to introduce at scale the availability of GPS tags. That will be augmented by a further release in the summer of 2019, providing greater functionality for service users, including a portal where updates and alerts can be viewed online.

This order builds on legislation which is already in place regarding electronic monitoring. The pilots have worked well and are working well, and we look forward to seeing GPS tagging in the right circumstances as soon as it is appropriate. I beg to move.

Amendment to the Motion

Moved by

[Lord Thomas of Gresford]

To move, as an amendment to the above motion, at end to insert “but that this House regrets that the Order provides for a new type of standalone electronic monitoring requirement for community orders and suspended sentence orders before the results of the ongoing pilot schemes are known”.

[Lord Thomas of Gresford (LD)]

My Lords, my original objection to this statutory instrument was based upon the fact that its purpose was to introduce a major difference in the use of electronic tags which affected the liberty of the subject without awaiting the results of the pilot schemes which were then being carried out in two major areas in the country. I believe in evidence-based policy and I thought that the Government took the same view.

As the Minister said a moment ago, electronic tags have been used within the criminal justice system for some 20 years since 1988, but only to monitor offenders’ compliance with a curfew. It was possible to confirm whether an individual was at a particular address at a particular time. The introduction of GPS monitoring differs considerably. The tag remotely captures and records information on an individual’s whereabouts at all times. Signals are received from satellites and are communicated via a mobile phone network to a case management system.

There was a pilot scheme in Greater Manchester, Hampshire and the West Midlands between 2004 and 2006. It was not a complete success. One of the modes of tracking was called hybrid tracking, which involved the delineation of geographic exclusion areas: if the offender moved into an exclusion area, a signal would be sent to the case management system immediately. This was the sort of tracking that is now envisaged in this statutory instrument. The conclusion of the 2006 report said:

“Although there may be a role for this form of hybrid tracking in providing an added layer of protection for victims assessed as particularly at risk, the limited use to which it was put during the pilots meant that no firm conclusion could be reached. On the other hand, if the main purpose of satellite tracking is to provide information on offenders’ whereabouts in order to challenge them about their movements and help them avoid dangerous situations, or to provide robust evidence of violations of exclusion zones, then this can be achieved through ‘passive’ tracking”—


that is to say, not this complicated system—

“and may not even require the daily flow of information from the monitoring company to offender managers that was made available in some areas during the pilots”.

That 2006 report also found that active tracking, whereby an offender’s general movements are followed in real time, could not be used because of the high level of resources which would be needed for such an operation.

Also in that report in 2006, probation officers, police officers and youth workers were generally less enthusiastic about the way that the satellite tracking equipment had worked. They were particularly worried about GPS drift—where GPS plots are, for a short period of time, wildly aberrant—and signal loss. Both created uncertainty in their minds. Had the offender tampered with the equipment, had the equipment broken down in some way, or had the signal been blocked by a tall building or some other obstruction? Their other concerns were that maps of offenders’ movements were sometimes unclear, insufficiently detailed or difficult to interpret; that battery life was limited; that ankle tags frequently needed changing; that communications between offender managers and the monitoring companies were not as good as they ought to be; and that tracking units were intrusive and infringed civil liberties. That was the position in 2006. One would have thought that the current pilot schemes should have been completed and brought before this House before introducing the system more widely.

The scheme in 2004 to 2006 was therefore not followed up in the light of the comments received. GPS tags have been used in a number of situations since, specifically for integrated offender management schemes—IOMs—but on a voluntary basis only. The case for their use is not open and shut, and the expense for hybrid or active tracking where offender managers feel it necessary to carry out immediate action is considerable. One would have thought that the Government would have awaited the findings of the recent pilots before introducing as part of the criminal law of England and Wales a scheme that is similar but which differs in one very important respect: the proposal for compulsory, not voluntary, tagging on a large scale.

On Monday, the Minister helpfully provided me with an embargoed copy of the report; I am grateful to her for that and for the courteous letter that accompanied it. I read and digested its contents. Unfortunately, because of the timing of this Motion to approve the statutory instrument, I cannot comment on its findings or conclusions. When will it be published? When could I comment on it? When the DPRRC considers the appropriate course for parliamentary scrutiny of the exercise of powers granted to Ministers in a Bill and advises the House, it does so in the belief that the use of the affirmative procedure will give the House an opportunity to raise any matters of concern on the evidence. There is evidence—there is an embargoed report—yet we proceed tonight without that report having been published. It is not available to Members of this House for comment.

20:15

However, I think that I am entitled to raise a number of questions without reference to the report’s contents. First, has electronic monitoring been shown to have any significant impact on the rate of reoffending? The 2004-06 study followed offenders for up to five months after the end of their tagged period. Its report stated that, during that limited period,

“26 per cent … of satellite-tracked offenders were either reconvicted for an offence committed during their period of tracking … or while unlawfully at large following their recall/revocation … or were considered by their offender managers … to have committed an offence during their period of tracking”.

The report also stated:

“If a longer period had been available, more convictions would almost certainly have been detected”.

Secondly, some people are vulnerable and lead chaotic lives. There are strict conditions attached to the use of tags: offenders have to be able to charge the tags for two hours a day in a docking device, and failure to do so is a breach that can result in punishment. Anybody who has to charge their phone every night knows that it is not always possible to make sure that you have done it. Exclusion zones and other conditions have to be agreed and communicated to the offender. Does an offender leading a chaotic life fuelled by drugs or alcohol have the capacity to understand and comply with orders of this sort?

Has a suitable design of the tags been developed? Back in 2006, there was considerable criticism of their comfort, the ease with which they could be removed and so on. Most importantly, will the resources be made available? What a familiar comment that is. The 2006 evaluation identified a mismatch between what the pilot areas sought from satellite tracking and what the monitoring companies had been resourced to provide. With such exclusion zones and conditions, there obviously has to be 24-hour monitoring of the central system alongside a field team that can be sent out to deal with any breach that occurs during that 24-hour period.

Finally, what steps are being taken to inform and advise magistrates, judges and prison staff so that they may have confidence in the system? I very much regret that the Motion has been brought forward at this time without the report being publicly available for your Lordships and everybody else to read and comment on. I beg to move.

[Lord Beecham (Lab)]

My Lords, the story of the Government’s policy on electronic tagging over the past seven years has been one of a prolonged disaster. Of course, the Minister is not to blame for that. She has tried to be helpful, although today’s letter—referred to by the noble Lord, Lord Thomas—warning recipients not to quote the contents of a document she sent us labelled “Embargoed” was, to put it mildly, unfortunate. I remain grateful for her attempt to be helpful, even if the Ministry of Justice appears to be vying with the Home Office in the competition to be seen as the most incompetent government department.

It is seven years since this policy began its gestation and 16 months since the announcement that the oligopolist G4S—an organisation presumed by the Government to be able to conduct all kinds of services across the system of government in this country—had been awarded a £25 million contract, notwithstanding the fact that it was then under investigation for fraud and that a National Audit Office report criticising the prolonged delay in implementing a policy of satellite tracking for offenders was soon to be published. A ban on G4S was imposed in 2013 after allegations of overcharging on contracts for the electrical monitoring of offenders, although the ban was lifted in 2014 on the basis that G4S had paid £109 million and Serco, another familiar scion of private enterprise, paid £70 million.

Labour’s shadow Lord Chancellor, Richard Burgon, has referred to G4S as having billed the Government,

“for tagging thousands of ‘phantom offenders’ – including those who were dead or in jail”,

and to,

“serious delays in informing the authorities that over 100 prisoners had been fitted with faulty electronic tags”.

In addition, Capita and two smaller firms became involved, although one withdrew after six months and another after 16 months, following incremental delays in the programme. Can the Minister explain how these failures in contracting occurred, and what steps have been taken to improve the department’s commissioning practice?

G4S purports to be able to provide public services across a broad range, including health, prisons and probation, but in January the Public Accounts Committee published a damning report, pointing out that a scheme due to be completed in 2013 was running five years late at a cost of £60 million to the taxpayer, with an additional irrecoverable loss of £9 million. What is more, the new tags are apparently expected to be available early next year. Can the Minister update us on progress, including both the starting and the completion dates for this project?

In its damning report in January 2018, the Public Accounts Committee described the programme as having been “fundamentally flawed”, and,

“so far … a catastrophic waste of public money which has failed to deliver the intended benefits”,

adding that the MoJ had,

“wasted a huge amount of time and … money to end up with … the same types of tags and supplier it had when the programme started”.

Significantly, the committee’s critique declares that the Ministry of Justice,

“lacked the capacity and capability to manage the difficulties and delays that it created”.

This appears to be confirmed by the fact that it is seven months since the report of the Secondary Legislation Scrutiny Committee asked why the draft order had been laid while piloting of the scheme was in progress—the very issue raised in the noble Lord’s Motion.

Just how long is that process of piloting going to take? Who will evaluate the response? What role will Members of both Houses have in considering the response and triggering the implementation of the order? And what plans are there to review the performance of the contractors? Who will conduct such reviews, and what provision will be made to terminate contracts in the event of failure on the part of the contractors, or if it transpires that, in any event, little or no improvement in reoffending by those fitted with tags has resulted?

[Baroness Vere of Norbiton]

I thank both noble Lords for their comments, and I hope to be able to address as many of the points raised as possible. First, clearly I shall have to take on the chin that criticism of what went on previously with this project. I do not have the information about what steps were taken, and why the failures occurred, in front of me, but I will write to the noble Lord and set out properly what happened previously and how we will address these issues in future.

I now turn to the comments of the noble Lord, Lord Thomas of Gresford. When I opened the debate, I tried to explain that this order provides an extension of provisions that already exist. There are other classes of subjects that can already be location monitored on a stand-alone basis. One of the reasons for not hanging around and waiting until the evidence, as he called it, is published, is that the report is not for stand-alone location monitoring on its own. It covers all sorts of different location monitoring, so it is more of an ongoing step, for all sorts of electronic monitoring, much of which is already covered by legislation.

The noble Lord took us back 12 years, to 2004 to 2006, and to what people said then. During the passage of the Crime and Courts Act, there was a significant debate about the civil liberties elements of the tagging, but technology has moved on significantly since then, and we are dealing with a very different beast from what was then being reported on.

[Lord Mawson (CB)]

I am in favour of innovation and the use of technology. Indeed, I have spent a lot of my life in the field of innovation, and was involved for a period in technological innovation. So I am in favour of all of this. The technology is used for young people in cars, with little black boxes that monitor where our children who have just learnt to drive are going. Our family’s experience of it is that these things are open to abuse from insurance companies—and from technology companies. I worry that things are going on that are far from fair for our young people. My question is: how sure is the Minister that this technology can be trusted and will work in practice? She says that things have moved on, but my experience is that technology always has downsides and weaknesses, and we need to be very secure about it. I am just checking, in this case, what tests have been done.

[Baroness Vere of Norbiton]

I thank the noble Lord for his intervention. As I explained in my opening remarks, the technology we are talking about is GPS tracking. Yes, it is used in black boxes. My son has one in his car, so he does not do naughty things on the road—which is superb—and we all have it in our telephones. If the noble Lord is asking whether the technology has been tested, I think we can say that it certainly has. Indeed, it is probably used by most of us on a daily basis as we make our way around in the world using Google Maps. More specifically, the partners in place that will be building up the service providers all have great experience in this area. For example, mapping the data from the tags will be done by Airbus—which I think probably knows a fair amount about where things are, particularly aeroplanes in the sky. Of course we are confident that the technology works, and I believe that the pilot has made us confident that the application of it for this particular group of people is a good thing.

The noble Lord, Lord Thomas, commented on the timing of the publication of the report. I am now in two minds about why I shared that anyway. I did it to put noble Lords’ minds at rest, because the responses from the pilot were, as we have heard, fairly positive. I cannot give the noble Lord a date for publication, but it will be very soon. That is how all this has fitted together.

As for the timing of the SI, noble Lords discussed this in the Moses Room many months ago, and one of the reasons for the timing relates to an issue that was raised slightly later, about engaging with stakeholders. How can we ensure that this system is actually used by the people who need to be able to step up and say, “You can have a tag, because we can trust you to go into the community, provided that you do certain things”? We have found that, the more we can engage with the people within the criminal justice system who will make those orders, the more likely they are to use the tag. We wanted to get the timing of the SI right so that we could engage with stakeholders.

The noble Lord also mentioned charging. I think that I too mentioned that in my opening remarks. It takes one hour a day, and—to be a bit brutal—it is slightly better than being in custody to have to sit down somewhere and charge a tag. There is also the portable battery charger; I talked about that too. So I do not believe this is a huge issue. The design, too, is much better. We have all seen that the size of these things has now come right down to an insignificant size that will go under a sock, which is very good.

As for resourcing, the cost of monitoring has been brought down significantly by technology—and on the flip side, there are benefits. The cost of investigations could be lower for the police as they look for people they want to rule in or out of possible criminality.

I take the point made by the noble Lord, Lord Beecham, about G4S. I will write to him and set out what happened with G4S in the past, but I reassure him that we have run a fully compliant, open and competitive bidding process for all service providers. There is no scope to exclude bidders within this system, even if they are subject to an ongoing investigation. I recognise the noble Lord’s concerns. We are obviously keeping things under a careful, watchful eye, but we are pleased with the service providers we have.

Finally, on reporting, there are no specific plans to publish an individual report on the effectiveness of the new service, but the ministry will monitor take-up and effectiveness as part of the benefits realisation and will also report on the service providers’ performance. I am sure the noble Lord will find that very interesting. It will report on their performance against service level agreements and the number of orders being managed as part of wider regular offender management publications. I think noble Lords will see the numbers, there will be commentary about how well the service is working and there will be the results of the longer-term pilot by MOPAC in due course.

[Lord Beecham]

Before the Minister sits down, will she give an indication of when we will get the reports she has just referred to?

[Baroness Vere of Norbiton]

I am afraid I cannot. We know that the first tranche of GPS tags will be coming out at the end of 2018. Full rollout is expected by summer 2019. I think that a period will have to elapse from full rollout until we can get some proper numbers, so I think it will be after that, but obviously I cannot set anything in stone.

[Lord Thomas of Gresford]

My Lords, there is one group of people who have not been discussed this evening, and that is the judges, magistrates and prison governors who will be concerned with making these orders. I am not sure that they will be tremendously helped by, or have much confidence in, the replies that we have received. I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

Motion agreed.

House adjourned at 8.31 pm.