Grand Committee
(2 years, 10 months ago)
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Arrangement of Business
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The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, good afternoon. Members are encouraged to leave some distance between themselves and others and to wear face coverings when not speaking. If there is a Division in the Chamber while we are sitting, the Committee will adjourn for 10 minutes.
Subsidy Control Bill
Monday 31st January 2022
(2 years, 10 months ago)
Grand CommitteeRead Full debate Subsidy Control Act 2022 View all Subsidy Control Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 84-II Second marshalled list for Grand Committee - (31 Jan 2022)
Lord Wigley
Lord Wigley (PC)
My Lords, I am delighted to have the opportunity to open Committee on this important Bill by moving Amendment 1, which stands in my name, and for which I am grateful for the support of the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Humphreys. I apologise that I was unable to participate at Second Reading: at that point I was self-isolating after testing positive for Covid. I wrote to the Minister to explain my absence. I was able to follow the whole Second Reading debate on the parliamentary live feed and from that I am aware that the dimension I raise in this amendment was touched upon by several speakers—and of course, I am conscious of the sentiment expressed in Senedd Cymru on the matter.
The point of the amendment is to ensure that Senedd Cymru and the Scottish Parliament are fully involved in the procedures triggered by Clause 1, and thereby the application of the Act for which Clause 1, of course, provides. This goes to the heart of the issues addressed by the Bill. That relates to the essential and totally valid role of Senedd Cymru and the Scottish Parliament in matters relating to subsidy control. I make it clear that I accept that there needs to be a framework in any common market or customs union in which subsidies can be permitted or prohibited. Therefore, there has to be a clear and transparent mechanism for defining the context within which subsidies can be paid, and therefore also the mechanisms of subsidy control that are necessary.
Let us be clear: subsidies have been a tool of government for both Conservative and Labour Governments down the years. One has to think only of the agricultural subsidies applied in UK long before our accession to the Common Market to see that such interventions have been regarded as legitimate. Before the UK entered the European Union, both the Wilson and Heath Governments operated substantial capital and revenue interventions, such as the selective employment tax and the regional employment premium. At one time, such schemes on a revenue basis and capital investment schemes could provide as much as 45% support for manufacturing industry investment. Indeed, when I was head of finance at Hoover, we negotiated an investment package in which £11 million out of a £16 million expansion scheme—substantial money in the early 1970s—came from public funds.
However, in acknowledging the validity of such interventions, as I believe the Minister does, it would be quite unacceptable for the power to decide whether subsidy controls are necessary to rest in one legislature alone. It must be on the basis of parity of esteem for all relevant legislatures—and Senedd Cymru and the Scottish Parliament are most certainly relevant legislatures. It would be totally unacceptable if one Parliament could legislate to protect its own interests while other Parliaments, with responsibility for economic development within their nations, were denied that power. If such powers are to be at the disposal of one partner within the union, they must be equally available to other nations.
It could be that the intention of the Government in proposing the wording of Clause 1(7) is to use the term “an Act of Parliament” in a generic manner, but the definition in Clause 89, the interpretation clause, rules that out, as indeed does the normal usage of that term at Westminster. It may well be that the Government do indeed regard Westminster as the senior partner in these matters and are deliberately choosing to legislate in a preferential manner that enables Westminster, by the use of Acts of Parliament, to seize control of this entire agenda. If that is so, it can be little surprise that the devolved Governments are extremely unhappy about the implications.
This matter, in various guises, is likely to arise again at various junctures in our deliberations. Indeed, other amendments on the Marshalled List raise these considerations. I shall listen to other speakers when they address those other amendments in due course, and there may well be better ways of dealing with this fundamental dimension than the wording that I propose in Amendment 2. However, let the Committee be in no doubt that an equal, even-handed approach must be built into the Bill for it to be acceptable in both Wales and Scotland. On that basis, I beg to move Amendment 1.
Lord Hope of Craighead (CB)
My Lords, I have added my name to the amendment of the noble Lord, Lord Wigley, and I agree with what he has just said in support of it. As he mentioned, it will be apparent from the many amendments on the Marshalled List that mention the devolved Administrations that there are real concerns that the provisions of the Bill as they stand will have an adverse effect on the relationship between those Administrations and the UK Government.
I recognise that subsidy control was made a reserved matter by Part 7 of the United Kingdom Internal Market Act, but that does not mean that the UK Government should shut their eyes and ears to the views of competent authorities throughout the UK, and of the devolved Administrations themselves, as to the way that subsidies are distributed and controlled. After all, while we were in the EU the Commission had a very robust evidence-based consultation procedure which ensured that other voices were heard, and that should continue to be the position.
“Respect” and “co-operation” were the key words in the recent report by the Constitution Committee, of which I am a member, about building a stronger union in the 21st century, but I am afraid that those virtues were absent when the internal market Bill was being designed and debated in this House and the other place. As a result, relations with the devolved Administrations became very strained. We do not want to go back to that, but the way in which the Bill has been drafted appears to pay very little attention to the concerns and needs of the devolved Administrations.
I am sure that the Minister will remember, very well, the conversations we had with regard to the amendments I tabled to the internal market Bill to enable exemptions from market access principles to be given to agreed common frameworks. They did not seem to get us very far, until, at the very last moment, there was a change of mind in the Government and an appropriate amendment was put through. Of course, I understand that the Minister’s hands were tied, but I hope there may be a little more flexibility this time.
I respectfully ask the Minister to say something about the legislative consent procedure in relation to the Bill. The Constitution Committee said:
“For the Sewel convention to operate well, constructive relationships and good faith is required between the UK Government and the devolved administrations.”
I hope that that is how things are being handled this time and that the Minister will keep the Committee updated as discussions continue, with a view to settling the devolved Administrations’ concerns, which I believe are still there; as I understand it, a consent Motion has not been achieved in either case.
Baroness Humphreys (LD)
My Lords, I have added my name to Amendment 1 in the name of the noble Lord, Lord Wigley, and support Amendments 13, 16 and 17 in the name of the noble Lord, Lord McNicol of West Kilbride, to which I have also added my name. Clause 1 provides an overview to the contents of the Bill. Amendment 1, in a few words, points out exactly what is wrong with the clause and the Bill itself, which is that, by their very omission from the Bill, there is no role to be played by the devolved Ministers or the devolved Administrations in the subsidy control scheme, even in areas where they have devolved competence.
All noble Lords agree and accept that the regulation of subsidies is a reserved matter, as do I and my colleagues from the devolved nations, but no consideration is given in the Bill to the sensitive issue of the UK Government acting in the areas of economic development, agriculture and fisheries—areas which, until now, have been overseen by the devolved Administration under powers given to them under the Government of Wales Act 2006. I understand the Minister’s desire to create a UK-wide scheme for the regulation of subsidies, and I know that he sees it as a way to strengthen the union, but I must respectfully disagree with him. Strengthening the union is a political concept and should have no place in underpinning a practical scheme such as this.
I refer the Minister to this document: the supplementary legislative consent memorandum agreed by the Senedd to the Building Safety Bill, which will have its Second Reading in this House tomorrow. I must admit that it gladdened my heart to read it. In that Bill, the Government place a requirement on developers across the UK to belong to a single, independent new homes ombudsman scheme. Paragraph 4 of the Welsh Government LCM reads:
“As housing is a devolved matter, the UK Government has worked with devolved governments to seek agreement for the new arrangements under the NHO to be UK-wide for home owners and developers.”
Amendments were tabled by the UK Government at both Commons Committee and Report stages, one of which provided for consultation with Welsh Ministers before the Secretary of State makes arrangements for an NHO scheme. The list includes amendments made at the request of the Welsh Government that recognise their devolved competence.
So we have another Bill seeking to create a UK-wide scheme, just as the Subsidy Control Bill does, but what a difference in approach between the two government departments. The Department for Levelling Up, Housing and Communities has been constructive, co-operative and willing to recognise the powers of the devolved Governments. Because the housing department has chosen to collaborate with the devolved Governments, one must ask the Business Minister: does he believe that this has really resulted in a weakening of the union? I would argue that the union is at its strongest when each component part is strong and using its powers, experience and knowledge to contribute positively to the proper functioning of the whole. The acceptance of Amendment 1 would begin to achieve that.
The amendments to Clause 10 to which I have added my name follow a similar theme and would clarify the role of devolved Ministers in making a streamlined subsidy scheme. They clarify that those schemes must be laid before the relevant devolved legislature and, if modified, the modified terms must be laid before the relevant devolved legislature too. I fully support those amendments. If both noble Lords wish to table their amendments again on Report, they will have my full support.
Finally, I am aware that the Under-Secretary of State, Paul Scully, was scheduled to meet the Welsh Finance Minister on Thursday last week. Can the Minister confirm that the meeting took place and when, and tell us what was discussed and the outcome?
Baroness Bryan of Partick (Lab)
My Lords, I too support this group of amendments.
I recognise that some aspects of the Bill should be welcomed. It has the potential to produce a more flexible and responsive system. The ability to streamline could make a crucial difference to local economies. What is concerning about the Bill is that the devolved Administrations are treated as having the same role in their economies as that of local authorities. It fails to recognise that each has a strategic responsibility for their national economy. Despite the Minister’s assurance that
“the Government have worked closely with the devolved Administrations, including sharing the consultation response document ahead of publication and carefully considering their representations”—[Official Report, 19/1/22; col. 1711.]
the devolved Administrations disagree and feel that they have been told rather than consulted.
The Scottish Government argue that the Bill should give Scottish Ministers the same powers as the Secretary of State has over matters such as referring subsidies to the Competition and Markets Authority, making streamlined subsidy schemes, and providing subsidies in response to natural disasters and other emergencies. The Welsh Government are concerned by the powers being given to the Secretary of State to shape the regime in future, with little scrutiny by the UK Parliament and none by Welsh Ministers or the Senedd. Both Governments agree that this legislation undermines powers which are fundamental to their ability to shape their own economies and industrial development.
People in Scotland and Wales view their devolved Governments and Parliaments as being responsible for the economy of their country. When they voted in last May’s elections, they chose to vote for policies that were different from those of the UK Government. My worry is that this Government want to turn back the clock to pre-devolution times.
Having looked closely at the Minister’s response at Second Reading, and the concerns raised about the exclusion of the devolved Administrations from some of the powers given to UK Ministers, I could find no explanation for why this should be the case. I hope the Minister will give a clear reason why these Parliaments and elected Governments should not have similar powers to those that the Bill awards to UK Ministers.
Baroness Jones of Moulsecoomb (GP)
My Lords, these amendments, which I fully support, allow the Senedd Cymru and the Scottish Parliament actually to decide issues for themselves. The legislation itself is deeply annoying because this should be standard in every Bill. I do not understand why the Government keep leaving it out.
In the Scottish independence referendum, the people of Scotland were promised devo-max. They received no such thing and then Brexit came along and gave this Government an excuse to steadily unpick devolution and centralise power in the UK Government. This is evidenced by Clause 1(7), which allows the UK Parliament to legislate contrary to the Bill but does not allow the devolved Parliaments any similar power. I simply do not understand that.
I will support these amendments if they come back on Report. I hope by then the Minister will understand that this should be in every single Bill. It should not be fought over every time. We do not want constant battles in Parliament to enact the devo-max that Scotland was promised. So please let us get some movement on this and actually make it fit for purpose.
Baroness Randerson (LD)
My Lords, I will speak specifically to Amendment 20, in the name of the noble Lord, Lord McNicol, to which I have added my name. Before I do, I want to place on record my concern that our debates on the Bill are being held only in Grand Committee. This Bill is of equal significance to the internal market Bill, and it has both economic and constitutional significance way above the status it is apparently being given by being located here.
Amendment 20 closely reflects the concerns of the Welsh Government, and there are of course similar concerns among the Scottish Government. In comparison with the other amendments in this group, Amendment 20 is a modest request for the Secretary of State to seek consent from the devolved Governments. However, if consent is not given the Secretary of State can go ahead anyway. This reflects a formula accepted by the Government in other pieces of legislation, which I assume is why it was written in this way—because it is the least controversial option of those put forward. It implicitly allows for a situation in which a devolved Government might seek simply to frustrate the UK Government’s efforts without full discussion and, therefore, does not reflect that in the vast majority of situations devolved Governments seek to negotiate in good faith with the UK Government. That is what the Welsh Government have certainly done this time, but they are not prepared to issue an LCM.
I signed the amendment despite my reservations that a Secretary of State’s Statement is to go to the House of Commons and that this place is not referred to. Given our attention to detail, I would hope that both Houses would be kept informed.
The amendments in this group all seek to restore an appropriate counterbalance to the sweeping powers the Bill allocates to the Secretary of State. Despite the Government’s chastening experience during debates on the internal market Bill, they seem heedlessly determined to continue their smash and grab on the powers of the devolved Parliaments. I am pleased to hear that at least one department of the UK Government has seen the light on this, but that does not alter the fact that the Bill is unreconstructed in its approach.
The Government talk about strengthening the union but are seizing every opportunity to undermine devolution. Powers over economic development and its funding have been devolved, in effect, since the Welsh Development Agency was established in 1975. Long prior to devolution, it was an example of excellence in pursuing successful economic development opportunities, mostly using funding.
The Minister will undoubtedly protest that nothing here removes powers over economic development or agriculture, for example, but power without funding power is a meaningless shell. This system allows the Secretary of State to halt schemes devised by devolved Governments because they are deemed unfair, but it does not in turn allow the devolved Governments to complain about the Secretary of State’s schemes devised for England.
It is not surprising that this is a sensitive issue in Wales. Under the EU system, two-thirds of Wales benefited from regional funding. In the Brexit debate prior to the referendum, people in Wales were promised specifically that they would not lose a single pound or euro, and voted accordingly. That promise proved very wide of the mark, and people in Wales feel betrayed.
It is worth noting that devolution in Wales is much less controversial than in Scotland. It enjoys very broad support across the political spectrum, and chipping away at the Welsh Government’s power to deliver on economic development or agriculture, for instance, is a dangerous path for the UK Government to take. I hope Ministers will see the light.
Lord McNicol of West Kilbride (Lab)
My Lords, I thank the noble Baronesses, Lady Humphreys and Lady Randerson, for putting their names to a number of my amendments in this group. I thank the noble Lord, Lord Wigley, as well. His opening remarks summed up the thrust of group one, which is to ensure that the devolved Administrations are fully involved and engaged, and that there is parity of esteem for all the relevant legislatures. It set up the framework for this group of amendments rather well.
As we have heard, this is the first of several important debates on devolution, one of the major concerns about the Bill. As has been noted, at Second Reading the Minister outlined the number of meetings he had had with devolved officials—45, I think, 13 of them to talk about the regime itself. It is concerning that those meetings have taken place but we still find ourselves in a situation where there are unresolved issues with the Scottish Government and the Senedd.
My take on this is that it will not take a lot to move this on. In fact, as the noble Baroness, Lady Randerson, said, Amendment 20 is a very modest amendment, which would give the Secretary of State the power still to press ahead after a month if an agreement has not been reached. These are not tough amendments, especially following some of the debates in the Commons.
On that subject, I thank the department for releasing the guidance, but it is a bit bizarre that the Bill passed through the Commons stages without any of the guidance being published or being able to be read. There are still a lot of square brackets in the guidance and bits that needs to be filled in. As we will touch on later, the concerns that the DPRRC raised will, I hope, lead to some positive changes to the Bill.
A number of noble Lords spoke at Second Reading of their concerns and those of the devolved Administrations, many of which we shared and echoed. Amendments 13, 16 and 17 are intended to make it clear that the devolved authorities can make and modify streamlined subsidy schemes. As we are aware, at present the Bill reserves that power for the Secretary of State, although comments were made in the debates in the other place by the Commons Minister that this could be broadened out. It would be good to hear from the noble Baroness, when she responds on behalf of the noble Lord, Lord Callanan, whether we have seen any movement or development in broadening it out.
We also saw, throughout the Brexit process, which was touched on by a number of noble Lords, that when we got down to the detail in your Lordships’ House we were able to make changes and amendments. The noble and learned Lord, Lord Hope, talked about some of those regarding the internal market Bill. It would be good if we did not have to take this as far or go through the same pain and difficulties that we did on that Bill, especially when the amendments we are looking to make fit into and sit alongside the same changes made there. With that, I will conclude. I look forward to the noble Baroness’s response.
Baroness Bloomfield of Hinton Waldrist (Con)
I thank the noble Lords, Lord Wigley and Lord McNicol of West Kilbride, for tabling Amendments 1, 13, 16, 17 and 20, and all other noble Lords who participated in this debate. I say at the outset, in answer to the noble Baroness, Lady Randerson, that the use of the Moses Room is not intended to minimise the importance of this Committee stage. We agreed through the usual channels that this would be the best use of time.
Before I discuss each amendment in turn, I start by saying that the proposed UK subsidy control regime empowers public authorities, including the devolved Administrations, to award subsidies flexibly and quickly to meet their policy objectives. As noble Lords have said, the United Kingdom Internal Market Act 2020 amended the relevant devolution Acts to make the regulation of subsidies a reserved, or in Northern Ireland an accepted, matter. The devolved Administrations are, and will remain, responsible for spending decisions on devolved subsidies within any subsidy control system.
As the Minister in the other place clarified, the devolved Administrations have standing to challenge UK Government or any other subsidies in the Competition Appeal Tribunal in instances where the interests of people in the areas in which they exercise their responsibility are affected. Some provisions of the Bill engage the legislative consent Motion process, as they alter executive competence; for example, they confer new functions on DA Ministers. We hope that the devolved Administrations will agree with us on the importance of the Bill and be able to give us their legislative consent for the relevant provisions. Those discussions are continuing and I will keep the Committee updated.
We have engaged closely with the devolved Administrations throughout this process at ministerial and official level, not only on the LCM process but on our policy development ahead of the Bill’s introduction, in advance of our publication last week of the illustrative documents, and as we continue through the parliamentary process in the run-up to implementation. In response to the noble Baroness, Lady Humphreys, I confirm that the Minister for Small Business met the Welsh Minister for Finance and Local Government, Rebecca Evans, last Thursday—27 January. The meeting discussed the Bill as part of ongoing engagement to understand concerns on it and to provide reassurance.
I will begin with Amendment 1. Clause 1 provides an overview of what each part of the Bill will cover and establishes its application to other legislation. Clause 1(7) and (8) specify that if a subsidy is granted, or a scheme is created, using powers contained in either primary or secondary legislation, the subsidy control requirements will apply, unless an Act of Parliament specifies otherwise. The specific reference to an Act of Parliament here is solely to clarify that nothing in the Bill should be interpreted as conflicting with the fundamental principle that no Act of Parliament may bind a future Parliament; in other words, it reflects the constitutional reality and does not create any further exemption or special treatment.
Amendment 1, proposed by the noble Lord, Lord Wigley, extends this clarificatory statement to cover the Senedd and the Scottish Parliament. In doing so, it fundamentally changes the character of this statement from a clarification to an exemption from the subsidy control requirements. The amendment would allow the Senedd and the Scottish Parliament to set aside the subsidy control requirements set out in the Bill, not only for the purpose of subsidies given directly in primary legislation, for which specific provision is made in Schedule 3, but for subsidies given by means of a power in that legislation; in other words, for all devolved spending powers in Scotland and Wales.
The discrepancy highlighted here between the Parliament of the United Kingdom and the legislatures in Northern Ireland, Scotland and Wales is not a matter of government policy but a reflection of constitutional reality. The subsidy control regime differentiates between devolved legislatures and Parliament in a way that respects the devolved legislatures and reflects this Parliament’s status as the supreme legislative body of the United Kingdom. The devolved legislatures have a unique constitutional status and we have ensured that the requirements placed on subsidies given directly in devolved primary legislation are proportionate and respectful of their status and processes. Schedule 3 sets out the specific arrangements that take account of this. None the less, it is important that the subsidy control requirements apply comprehensively and that we do not create exemptions.
As for subsidies given through powers conferred by Parliament or the devolved legislatures in secondary legislation or otherwise, it is essential that these are compliant with the subsidy control rules without exception. As it stands, the clause simply clarifies that express or implied repeal by a future Act of Parliament remains a possibility. It does not suggest that the Government will, on a whim, propose legislation that exempts a particular project or power from the subsidy control requirements.
It is absolutely right that subsidy control is a reserved matter: by its very nature, it affects how all public authorities in the UK, including devolved authorities, may exercise their spending powers. That is because its purpose is to establish common rules for different authorities with different interests and policy objectives to protect UK competition and investment. The Bill will also facilitate our compliance with our international obligations, including those set out in the EU-UK Trade and Cooperation Agreement, which reflect exactly this constitutional reality.
I turn to Amendments 13, 16 and 17. Clause 10 concerns the making of subsidy schemes and streamlined subsidy schemes. Public authorities using a streamlined subsidy scheme will not have to access any subsidies they award under the terms of the scheme against the subsidy control principles. Streamlined subsidy schemes will have parameters for use that must be complied with by the public authorities using them, and can be made by a Minister of the Crown. Two illustrative streamlined subsidy schemes were published by the Government last week; I trust that they provide practical examples for noble Lords of the possible terms of these parameters for use.
Together, Amendments 13, 16 and 17 would have the effect that a Scottish Minister, a Welsh Minister or the Northern Ireland department would have the power to make streamlined subsidy schemes and lay them before their relevant devolved legislature. I will therefore take them together. The first amendment would allow streamlined subsidy schemes to be made by Ministers in Scotland or Wales or the Northern Ireland department. The second and third amendments would require such streamlined subsidy schemes to be laid before the relevant devolved legislature when made or amended.
Related amendments on this matter, regarding the role of the devolved Administrations, were made in the other place. The position of the Government remains that we will create streamlined subsidy schemes for public authorities across the UK to use to award subsidies that help UK-wide priorities. Streamlined subsidy schemes will therefore function best when they apply across the length and breadth of the United Kingdom. The Government will design these streamlined subsidy schemes such that they are fit to be used by public authorities in all parts of the United Kingdom.
Given that these streamlined subsidy schemes will be part of the UK-wide subsidy control regime, the appropriate place for them to be laid is in this Parliament. We have published two illustrative streamlined subsidy schemes and an accompanying policy statement that sets out for Parliament how the Government intend to use these schemes. We have worked with the devolved Administrations while developing this policy at both official and ministerial level. Officials will continue their close engagement with the devolved Administrations as the regime continues to develop. Finally, it is important to note that Scottish Ministers, Welsh Ministers or a Northern Ireland department, as primary public authorities, can also make schemes for use by other public authorities where that is within their existing functional powers; for example, the Scottish Government may choose to make a scheme for use by local authorities in Scotland.
On Amendment 20, Clause 11 sets out the terms for making regulations to define subsidies and schemes of interest or schemes of particular interest. The amendment would require the Secretary of State to seek the consent of each of the devolved Administrations before making regulations on subsidies, schemes of interest or schemes of particular interest under the clause. If this consent was not forthcoming, the Secretary of State would be required to make a statement to the other place explaining why they had chosen to proceed with the regulations without DA consent.
This amendment was also raised in the other place; the Government’s position on it remains the same. Regulations made under Clause 11 will define subsidies, schemes of interest and schemes of particular interest to ensure that the work of the subsidy advice unit is focused on subsidies and schemes that are most likely to cause negative effects on competition and investment in the United Kingdom, or which may do the same to our trade with other countries.
These regulations are key to the functioning of a reserved policy area. It is right, therefore, for the regulations to be debated and voted on here in the UK Parliament. I simply do not believe that it is appropriate to require the Secretary of State to seek consent even when the Secretary of State may ultimately proceed without that consent from the devolved Administrations on a reserved matter. A requirement to seek the consent of the devolved Administrations each time regulations are made under Clause 11 also risks introducing significant delays into the process, particularly if regulations need to be amended quickly in the future, such as in the event that economic conditions change rapidly. In such cases, the Government may need to legislate rapidly without consent, so the amendment would not achieve its aim.
The Government have had numerous discussions with Ministers and officials in the Scottish Government, the Welsh Government and the Northern Ireland Executive and we are committed to continuing to engage regularly with them. We have published illustrative regulations on subsidies and schemes of interest and of particular interest, in addition to the accompanying policy statement outlining the Government’s approach to this important question. Ahead of publication, officials have discussed the approach to these regulations with each of the DAs, taking on board their comments and suggestions as the policy has developed. We have also provided early sight of the draft regulations for comment ahead of publication. I assure noble Lords that this engagement will continue as we prepare for implementation of the regime. I also welcome any comments or questions that my noble friend may have regarding the illustrative products. Indeed, I welcome any further comments or questions from the devolved Administrations. I therefore humbly request that the noble Lord withdraws his amendment.
Lord Wigley (PC)
My Lords, I am grateful to the Minister for her response, which I will come back to in a moment. First, I thank all noble Lords who have participated in this short debate. The noble and learned Lord, Lord Hope, spoke of respect and co-operation between Westminster and the devolved Administrations. That goes to the heart of what we are talking about. We need a regime, as far as these aspects of business are concerned, that has mutual respect and co-operation between all parties; otherwise, we are bound to find ourselves in a position where one body is trying to outdo the other and perhaps to gain political kudos for doing so. That is not what this should be about.
The noble Baroness, Lady Humphreys, whose support I was grateful to receive, spoke about the Bill giving no consideration to the issues that arose in respect of earlier Westminster Bills taking powers from the devolved Administrations. That is the feeling that exists, certainly in Cardiff Bay and the Senedd and, as I understand it, in Edinburgh as well.
I was grateful to the noble Baroness, Lady Bryan of Partick, for her comments. She highlighted the failure of Westminster to adequately consult in good time. That, again, is an element of this lack of respect. By properly consulting in time, there is an opportunity to be able to amend proposals taking such consultation on board. But it is done at the last moment. I understand that one consultation took place last Saturday—not from this department, I think—on something that is happening today. That is no good. There has to be an active engagement between the Governments of our three nations, or four nations if we include Northern Ireland—I have not included Northern Ireland in this because of the complex situation there, but of course the principles apply equally.
The noble Baroness, Lady Jones, spoke of the need to have proper respect for devolved Administrations. That should run through every Bill. I noted the strong feelings that the noble Baroness, Lady Randerson, who spoke mainly to Amendment 20, had concerning the consent of the devolved Administrations. The parity of esteem that the noble Lord, Lord McNicol, talked about goes to the heart of this issue.
The other amendments in this group will no doubt be taken at later stages in different guises, because they touch on subjects that arise in different parts of the Bill, but the noble Baroness, Lady Bloomfield, said that the question of the relationship between the Governments in Cardiff, Edinburgh and here at Westminster “reflects the constitutional reality”—those are the words that she used. Those words will create a reaction in Edinburgh and Cardiff that will cause even greater problems.
We need to seek a new partnership approach. If the unity of purpose within these islands is to mean anything, it must be on the basis of respect between all three or four partners and not the idea that because Westminster was the original one and the all-powerful one, it can overrule or ignore what is felt in Edinburgh, Cardiff or Belfast. I believe that it is possible in the general context to get a formula that can reflect that need for recognition and respect, but it is not going to be achieved in the way that the Bill is drafted. The reaction in Cardiff and Edinburgh was totally foreseeable and it could have been avoided—and it needs to be avoided.
Lord Wigley
“(1A) No payment may be regarded as a subsidy if it is equally and freely available to all enterprises whose economic activity, to which the payment relates, is undertaken wholly or largely within the territory of the body making the payment.”
Lord Wigley (PC)
My Lords, I apologise for appearing to hog the Committee at this early stage. I will have a self-denying ordinance as things go forward, I promise. Amendments 2 and 3 are in my name and go to the heart of the use of subsidies as a legitimate tool for securing economic objectives. From the Minister’s remarks at Second Reading, it is clear that the Government accept that in some circumstances the payment of subsidies may be legitimate. Surely that must be right.
Let us take as an example the Covid crisis. If the payment of subsidies was necessary to enable a company to bring forward a vaccine more quickly, say, or to enable an adequate supply of face masks to be available for hospital and home care workers, if that is the only way of securing such socially necessary provision, no one in their right mind would oppose such payments being made. Equally, if subsidies were made to one company to give it an unfair advantage over another, that would clearly not be an acceptable use of public funds, unless it was to enable economic or social benefits to become available in a manner that would not have been possible by paying similar subsidies to other potential providers.
This brings us to the fundamental question of the circumstances in which the payment of subsidies is legitimate and who decides that that is the case. I do not pretend for one moment that we can define in legislation all the circumstances and eventualities in which a credible argument can be made for the use of subsidies, although there clearly needs to be transparency and the circumstances need to be defined in terms that can be appreciated by those who might want to supply goods or services for which subsidy payments may arise. This might be difficult to define in words that are both comprehensible and able to withstand scrutiny in the courts.
To make that process easier, I believe that it would be helpful if some of the principles on which a determination of the efficacy and appropriateness of subsidies could be defined in the Bill. If such a detailed approach is difficult—or, indeed, impossible in some circumstances—at the very least there should be some principles spelled out in legislation for the benefit of the Governments of the four nations of these islands and for the guidance of those involved in the provision of goods and services, who have the right to know the ground rules within which they operate.
Amendment 2 seeks to deal with a set of considerations that may well arise for Governments trying to operate within the framework of the Bill. For colleagues to appreciate the background against which I bring it forward, I draw the Committee’s attention to the way in which successive Governments in Wales have tried to tackle the endemic unemployment levels that have blighted Wales for most of the last century, consistently running at twice the level experienced in England. To tackle this, the Welsh Government have—absolutely rightly, to my mind—tried to ensure that public sector contracts for the provision of goods and services in Wales go, as far as possible, to contractors based in Wales or those that will make it their policy to employ people living in Wales to undertake the work.
Clearly, there has to be value for money and tender prices are a factor that cannot be ignored, but that is only one of several relevant factors. The best deal for the community as a whole is not necessarily ensured by insisting that tender prices are the only factor that determines where widgets must be purchased. Quality of product, security of supply, and aftersales service are absolutely legitimate considerations which may trump a pure price consideration.
There is also the effect on the local economy. It is worth noting that in pursuing a local sourcing policy, which clearly can also have significant environmental benefits by cutting unnecessary transport costs, the Welsh Government have succeeded in raising the level of local sourcing from under 35% to some 55% over the past 20 years. The target is to push that figure to 70%. To my mind, that is an absolutely valid approach. If sandwiches for Welsh hospitals can be made locally rather than brought in from Birmingham or London, they most certainly should be sourced locally, as should service provision contracts. There was a nonsense a few years ago when a contract for grass cutting in schools in Anglesey was apparently placed with a company in the east Midlands.
The net effect of this approach has been to reduce Welsh unemployment figures so that they now stand below the level in England for the first time in my lifetime. Activity rates have also increased.
I readily concede that this approach does not solve all our problems. The level of GDP per head of population remains stubbornly low, and I understand that this argument has to be confronted. The quality of work and the added value must also come into the equation. Our Governments, in Wales and Scotland as well as Westminster, must take these considerations on board when developing public policy.
In this amendment I seek to write into the Bill a provision that states that it is absolutely acceptable for Governments to seek to secure economic activity within the communities for which they have responsibility and that it is legitimate in some circumstances to pay subsidies to businesses that employ people within those communities and pay taxes to local government in those areas, and whose profits may circulate in those local economies.
I make it clear that this is not a block on tendering for contracts to provide goods and services for an area. Those who are primarily based away from that area should not be debarred, but surely it is necessary that when such decisions are made, consideration is given to whether companies are willing to locate an office in the areas offering subsidies, to purchase supplies from within those economies and to have a transparent policy of recruiting people in those areas, preferably to work within their communities.
My amendment states that no payment should
“be regarded as a subsidy”
for the purpose of this Bill
“if it is equally … available to all enterprises”
that undertake “economic activity” to which the subsidy relates “within the territory” of the governmental body making any such payment.
In his wind-up speech at Second Reading, the Minister stated that it would continue to be in order for a public authority to give subsidies if in doing so it is “addressing regional inequality”, so I hope that he will either accept the amendment or undertake to bring forward his own, either at the end of Committee or preferably on Report when it can be voted on. It may be that the wording of this amendment needs to be tightened and more focused. What I now seek is an indication as to whether the UK Government appreciate that other Governments must have their hands free to improve the economic well-being of their communities and that the judicious use of subsidies is a perfectly legitimate tool in trying to stimulate economic activity.
Briefly, Amendment 3 is different in nature but relates also to ensuring that Governments are not precluded by this Bill from making payments for the provision of local services by public bodies in their territory. There are many aspects of local services that may be provided by both public authorities and private contractors. One has to think only of care homes, refuse collection, recycling or highway maintenance to see areas where there could be arguments as to whether public authorities are subsidising activities in competition with the private sector.
My amendment is tabled to give the Minister an opportunity to state categorically that the Bill, when enacted, will not constrain public authorities from making such payments and to point out in the Bill where such safeguards are provided, if indeed they are. If they are not, we will need to return to these matters on Report. I believe I may be knocking on an open door with this amendment but I will listen to what the Minister has to say. I beg to move.
Viscount Chandos (Lab)
My Lords, I support Amendments 2 and 3 in the name of the noble Lord, Lord Wigley. With the agreement of the Committee, I shall speak to my Amendment 2A. My amendment would add just one word to Clause 2(2) and I will try to be commensurately brief.
Clause 2(2) lists examples by which financial assistance may be given, starting with
“a direct transfer of funds (such as grants or loans)”.
It does not purport to be exclusive or comprehensive, so why do I think it is important to add equity to the examples given of grants and loans? The guidance published last week, following Second Reading, includes the following:
“Subsidies can be provided in many different forms, including grants, soft-loans, loan guarantees, and tax breaks. Other forms, such as taking an equity stake in firms … may also constitute subsidies [to be inserted—link to future section on determining whether an intervention is a subsidy].”
That prospective insertion of a link to a future section—further evidence of the Government’s ill-preparedness for a Bill that they have known for months, if not years, was needed—gives a clue as to why it is important to add equity to the examples given in the Bill.
A grant from central or local government is self-evidently a subsidy. It is relatively easy—not totally simple, but not rocket science either—to gauge whether a loan is, for the borrower, more favourable than market terms and hence has a subsidy embedded within it. A loan will ordinarily carry the requirement to pay regular interest and, by final maturity, to have repaid all the principal amount. The arithmetic is pretty simple. Equity is much more difficult to analyse as the future returns are unpredictable. The risk of loss is total and the potential returns unlimited. Professional venture capital and other investors can take strongly divergent views about the prospects for any one company, which explains the huge dispersion of returns between different funds.
I acknowledge that it can be difficult to say whether an equity investment is made on market, and hence unsubsidised, terms. A judgment has to be made about the share of the company concerned received for the investment made; the speed with which a decision to invest is made; the proportion of the funding contributed; any liquidation preference attached to different classes of shares; and a whole range of other conditions, whether imposed or waived. Even if private sector investment is made pari passu with the public sector’s commitment, that may not be prima facie evidence that the public sector’s investment is on market terms, since the commitment, particularly if as a significant cornerstone investment, may in itself attract private sector investment in a way that could disadvantage competitor companies.
Lord German (LD)
My Lords, I want to speak to these amendments because we have reached the point in the Bill when we are looking at the architecture for the future. Clause 2 sets out very clearly the fundamentals that we need to understand. I seek to ask the Government whether the subsidy regime proposed here is more or less permissive, and whether it is more or less bureaucratic, than what we have had before.
I am grateful to the Minister for letting us have more information and some draft regulations and draft guidance, but the problem that the devolved Administrations have is summed up in the statement in paragraph 5 of Streamlined Routes: Objectives, Operation and Next Steps:
“The Devolved Administrations have also had the opportunity to share their views on Streamlined Routes to support their development.”
I am often asked to share my views and very often I am told that the Government do not agree with them. I am sure that that is very common. Perhaps the Minister could tell us whether there has been any accommodation of these views when they have been shared and whether any changes have been made. It would be interesting to see that happen.
My fundamental point is whether the scheme’s architecture is more or less permissive than what we had before. The situation is very different for Wales, of course, because we received the largest amount of European money of anywhere in the United Kingdom over a sustained period. Only two things mattered in terms of the regime itself, as opposed to how it was dealt with: there were subsidies—money and cash—and there were rules on which the subsidies operated. The Government’s own words to us in the Chamber, if they are to believed, were that Wales would not suffer, pound for pound, any less in the money it received than from the European schemes. Clearly, that is not true yet.
My first question to the Minister is: when will the money be received? It clearly has not been yet. Can he repeat the commitment that, pound for pound, Wales will not suffer? We could get that side of the subsidy regime out of the way. However, I suspect that some of us might have been misled in our thinking over the promise that money would be available. I hope that the Minister, on a day when we have been told that we may have been misled about promises put to us, can set the record straight for us right now.
Leaving aside the subsidies themselves—we have heard a little bit but we do not yet know whether there will be cash on the table—we now turn to the rules for them. I had the opportunity to be deeply involved in setting up one six-year period of the European funding for Wales. The way in which it was brought about was interesting. We had to secure an operational programme with the European Union; that programme was broad but very detailed and extensive. When that happened, it gave us, for six years, the rules by which we could operate and understand how to deal with the problems in our country.
The direct comparison now is between the operational programmes, where the EU determined after extensive negotiation, and the other, streamlined schemes, several of which we have in front of us. That comparison includes how these might work and which is more permissive. The former was for six years. It was very broad. You knew where you were. The latter is a tighter constraint around a specific topic. One of the obvious criticisms from the documentation we have received is that there is going to be a whole lot of narrow, siloed regimes. It will be extremely difficult for public authorities and anybody else to find their way not only through those regimes but to the interconnecting places.
An obvious example of that concerns the general conditions in the innovation scheme. I do not think anybody would disagree that a UK subsidy regime should not compensate for costs that the beneficiary would have funded in the absence of any subsidy—that is a fundamental. So why is it in this document? It may also be slightly different in another one; we do not know because we do not have the extent of it before us. Essentially, what we needed was an overarching set of rules that were clear enough to be in the Bill or, alternatively, in any regulation that we see in advance. Perhaps the Minister could tell us, in saying what a regime should look like, where we can get the specifics of these overarching things and the subsidy regimes that will take place.
The amendments tabled by the noble Lord, Lord Wigley, would return the decision-making clearly to the Welsh Government; it is quite clear that, under these powers, they will lose that. One of the suggestions that has been made—it will come up later in our debate, of course—is that we should have an agreed framework of activity within which there would be an ability to do things in a much more free-flowing way. It is absolutely essential that authorities intervene in areas of deprivation. If you do not do that, you certainly do not use the words that begin with an L and a U, which the Government are so keen on. We certainly cannot bring lifestyles to a better place if we do not target where public money should go.
Overlaid with the broad set of rules that I have just talked about, including on such things as displacement and the fact that people cannot be compensated where they would have done it for themselves, we need to understand whether these rules will provide a level playing field. The understanding I get from my reading of them is that we will continue to have an uneven playing field and one on which politics will play a far bigger role than the clear set of understandings that there were in the past between, for example, the Welsh Government and the European Commission, about what one could do. Can the Minister explain why this scheme is an improvement and why it is proportionate between the Governments of this country? The suspicion is that one Government are using their powers to disadvantage another.
Lord Lamont of Lerwick (Con)
My Lords, I will speak even more briefly than did the noble Viscount, Lord Chandos, in expressing a modicum of support for him. It is up to the Minister to explain why equity is not included rather than for the noble Viscount to prove the case for including equity; it seems a bit of an omission. We read today about the failure of the British Business Bank to do well on some of its investments. We have also had the publicity about the Covid loans that have not been recovered. Why do I mention the British Business Bank? Because we have seen a whole series of equity injections by this Government that have not always had an overall rationale.
The noble Viscount, Lord Chandos, referred to the spread of returns from equity investment and how different investors would take a different view of the future, but the reason often advanced by government for direct investment is what is termed “market failure”, and I see that the phrase “market failure” is referred to in the Bill. Unfortunately, market failure is a convenient get-out for Governments wishing to subsidise a particular entity. The very fact that Governments provide direct investment, which I know the noble Viscount favours in a way that I would not, often disguises the fact that there is a subsidy. They say that it is because of market failure and they want it to be on market terms, but, too often, it turns out just to be an implicit subsidy. I agree with the noble Viscount that equity, particularly from a public sector grant-making organisation, can often conceal a degree of subsidy. I hope that careful consideration will be given to the point that he has rightly raised.
Lord Fox (LD)
My Lords, I shall speak to Amendments 2 and 3 and then Amendment 2A, as they seem to associate with each other.
In the speeches of the noble Lord, Lord Wigley, and my noble friend Lord German, the nub of the question is: what is a subsidy and what is it not? I see Amendment 2 from the noble Lord, Lord Wigley, as trying to unearth that definition. Later, we will discuss Clause 11, which allows certain definitions to be defined by affirmative regulation rather than appearing in the Bill. These definitions are:
“subsidy, or subsidy scheme, of interest”,
and
“subsidy, or subsidy scheme, of particular interest”.
This is the Subsidy Control Bill and it would be enormously helpful if the Government would put in the Bill what they seek to control because, at this stage, they have not revealed their hand. In this amendment, the noble Lord, Lord Wigley, seeks to delineate where a subsidy starts and finishes: the territory, as he puts it. This is a moot point and a key issue that we will talk about later. The noble Lord, Lord Lamont, talked about market failure. We need to understand what the Government understand as “the market” in the first place to delineate where a failure may or may not have occurred. Hereby lies the issue.
In a letter to my noble friend Lord Purvis, the Minister sought to help and, perhaps, to clarify. He replied:
“The geographic scope of a market depends on the goods, services and activity in question—which means geographic scope can vary.”
I think that that flies in the face of some of the words that we heard just now from the noble Lord, Lord Wigley. The letter continues:
“A key factor is the distance over which these goods or services can be supplied”—
the sandwiches of the noble Lord, Lord Wigley, perhaps—or
“the preference of customers”.
I understand the issue about distance—I can get that—but to include the preference of customers is potentially specious.
To take an international example rather than a Welsh one—although, of course, Welsh is international, if I am speaking from England—there was no market for Spanish-grown strawberries until such time as Spanish-grown strawberries were imported to this country. Then there was a market, because customers showed a market preference. So at the outset of a subsidy there may be no customer preference because there is no product for the customers to prefer. Some time after the six months have expired and the subsidy is open to challenge, the product appears on the market. How is customer preference to be applied retrospectively to subsidies as the market goes forward? I do not think that the issue of customer preference is easy to define, understand or control. If the Minister stands by the words in the letter to my noble friend, we need a much clearer understanding of how that customer preference role will play out. Not only do we need to understand geography, but we need to understand the customers.
Lord McNicol of West Kilbride (Lab)
My Lords, I have very little to add to what other noble Lords have said. I am grateful to the noble Lord, Lord Wigley, and my noble friend Lord Chandos for Amendments 2, 2A and 3. As has been said, they go to the heart of the Bill. Clause 2 is titled “Subsidy” and lays out the effect and explanation of what a subsidy is or can be. The noble Lord, Lord Wigley, has come up with an interesting means of looking at protecting the devolved authorities’ interests by making it clear, as we have heard, that certain forms of payments would not be classified as subsidies and would therefore fall outside the control and requirements of the Bill.
The amendment from my noble friend Lord Chandos raises an interesting point in relation to the illustrative documents that have just been released. As the noble Lord, Lord Fox, said, my noble friend’s amendment was tabled late but that was because the guidance papers were released so late. If some of the guidance and regulations had been shared and published earlier, some of our colleagues in the elected Chamber may well have been able to pick up and dig into some of these issues.
The noble Lord, Lord Wigley, touched on the use of subsidies as a legitimate tool for securing economic benefit when done correctly, but also when done transparently. This is one of the fundamental issues we will come on to in later amendments. The big difference from European state aid is obviously that an agreement had to be reached before state aid was brought in. With this system, and this is one of the benefits of it, the subsidy can be brought in very quickly beforehand. But that creates a huge dilemma if the information on the subsidy is not transparent, and if there is no proper opportunity to analyse and challenge it. That is why we will be going into far more detail on this.
Tidying up some of these issues and getting them into the Bill, rather than in secondary legislation and regulations, would help to move it into a far better position. With that, I look forward to the noble Baroness’s response to the issues, especially the one raised by my noble friend Lord Chandos on why equity cannot be added straightforwardly. The Minister, the noble Lord, Lord Callanan, has tabled a number of government amendments. It would be great if we could do some of the tidying up as we move through Committee.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, again, I am grateful to the noble Lord, Lord Wigley, for tabling his amendments, and to all noble Lords for participating in the debate.
Clause 2, as the noble Lord, Lord Fox, said, is the cornerstone of the new subsidy control regime as it sets out the definition of a subsidy for the purposes of the Bill. The definition consists of a four-limb test, and all four limbs must be satisfied for a financial measure to be considered a subsidy. I also draw the Committee’s attention to Clauses 3 to 8, all of which are necessary to understand the definition of “subsidy”. I believe that those provisions collectively provide sufficient clarity and legal certainty to ensure that all public authorities can give subsidies with confidence. We will provide guidance on this matter as the Bill comes into force.
In response to my noble friend Lord Lamont, I believe the Bill sets out a series of overarching principles that provide a level playing field for all public authorities in the UK. The Bill is not a framework for funding; therefore, in response to my noble friend, spending decisions are of course for the Chancellor. It is a set of rules that all public authorities must follow in their decision-making when they give a subsidy or make a scheme. I do not recognise the criticism that it is too streamlined or too narrow, or that it will not be accessible to the devolved Administrations and to other public authorities outside Westminster. The streamlined subsidy schemes that we create will be beneficial but also entirely voluntary for public authorities to use. I note too that we have adopted helpful suggestions from the devolved Administrations for the illustrative Subsidy Control (Subsidies and Schemes of Interest or Particular Interest) Regulations on the treatment of rescue and restructuring subsidies to ailing businesses, as well as in relation to the identification and selection of sectors of interest.
Amendment 2, proposed by the noble Lord, Lord Wigley, would exclude from the definition of a subsidy financial assistance offered by a public authority to all enterprises operating wholly or largely within its territory. I entirely agree with the noble Lord that it is of the utmost importance that public authorities are responsible for the financial assistance that they provide within the areas for which they are accountable, and that when a devolved Administration—or, for that matter, a local authority—design a scheme that is general to enterprises in their territory, subsidies should not be specific. Of course, those subsidies should be designed in support of the economy and community for which the public authority is responsible in order to address market failures or issues of disadvantage. I am pleased to inform the noble Lord that that is what Clause 2 provides, with particular reference to the notion of what constitutes a specific subsidy in Clause 2(1)(b) and Clause 4. I am grateful to him for raising this important point.
The requirement that is relevant to the noble Lord’s amendment is that a subsidy must be specific. In order to be specific, Clause 2(1)(c) provides that it must benefit one or more enterprises over one or more other enterprises with regard to the production of goods or the provision of services. When determining whether a subsidy benefits one or more enterprises over others, it is necessary to consider what constitutes the reference framework for that subsidy by reference to the legal basis for that subsidy, the authority giving the subsidy and how it is financed, in order to determine who is in the same legal and factual position.
Where a UK-wide power is conferred on a UK Minister, the reference framework is the whole of the UK, while a subsidy that will benefit only enterprises in a specific part of the UK—such as Wales or, indeed, London—will meet the definition of a specific subsidy. However, when an Administration covering a discrete area, such as a devolved Administration, make a subsidy under the powers conferred on them, the reference framework will be the territory of that Administration.
Therefore, in the case of Wales, for example, a disadvantaged workers’ subsidy scheme that is available equally to all enterprises in Wales will in most cases not be specific because the subsidy will not favour any enterprise in Wales over another enterprise in Wales in the absence of factors limiting the availability of the subsidy. However, a disadvantaged workers’ subsidy by the Welsh Government limited to enterprises in Newport, or which was otherwise limited in availability, would be a specific subsidy because it favoured enterprises in Newport over other enterprises in Wales. It can also be said, with reference to Clause 4(2), that the notion of the reference framework is inherent in the design of subsidies by the devolved Administrations because they can act only in pursuance of their devolved competences.
Similar provisions are made in relation to taxation in Clause 4 to ensure that, where a devolved Administration are acting autonomously in relation to a devolved tax or a variation of a national tax, there will not be a subsidy if the scheme of taxation does not contain elements that are specific to their areas of responsibility. Acting autonomously includes having the competence to set the tax and being responsible for the fiscal consequences of setting the tax at the chosen level.
I hope to persuade the noble Lord, therefore, that the discretions he wishes to maintain for subsidies that are general to enterprise in Wales—and not confined to certain enterprises in Wales—are inherent in the general principles in the Bill, which are derived from the TCA, without need for a specific amendment.
Lord McNicol of West Kilbride (Lab)
I do not think their lateness was perceived—it was real—but that is not why I rise. I go back to a point the Minister made on my noble friend Lord Chandos’s amendment. Under Clause 2 on “Subsidy”, she said that subsection (2) is not an exhaustive list. That is the subsection where my noble friend was looking to add “equity” after “grants”. It may not be an exhaustive list, but lines 23 and 24 say:
“For the purposes of this Act, the means by which financial assistance may be given include”.
If Her Majesty’s Government are not going to add anything in, can they at least clarify that the list in paragraphs (a) to (e) is not exhaustive? Am I just being a bit too pernickety?
Lord McNicol of West Kilbride (Lab)
Thank you. If the Minister wishes to write to us, that is fine. I am sure we will come back to this.
Baroness Bloomfield of Hinton Waldrist (Con)
I think I said that an equity investment is still considered a direct transfer of funds from one entity to another. The whole point of not putting in an exhaustive list is to avoid worry about what you leave out of a list, rather than what you have in it. I believe this is already covered by the Bill.
Lord Wigley (PC)
My Lords, I am grateful to everybody who has participated in this short debate. I am not sure whether the noble Viscount, Lord Chandos, is happy with the response he got, but no doubt there will be opportunities to pursue that further. I also noted the comments of the noble Lord, Lord Lamont. There is clearly an issue here that needs some further consideration.
I was grateful to the noble Lord, Lord German, for his contribution. He was Minister for Economic Development in the Welsh Government. Was it 20 years ago?
Lord Wigley (PC)
It was a long time ago but clearly the noble Lord learned many lessons, not least the one he repeated: to stress that we in Wales received considerable benefit from the European Union and that there is a need for a guarantee that, pound for pound, we will not miss out from the changes taking place. That is a bit on a tangent from the issues we are debating; none the less, it is a well-made point and needs to be well received. Hopefully that will be the case. I agree very much with the noble Lord, Lord German, on his point about the Government spelling out in greater detail the rules coming through that will provide a level playing field. Those are very much needed.
I was grateful to the noble Lord, Lord Fox, for his interesting contribution, as always. He asked what a subsidy is. That really goes to the heart of the Bill, does it not? It is clear from the detailed response we had from the Minister that it will require quite a lot of exercising.
The noble Lord, Lord McNicol, again emphasised the need for greater clarity and transparency. That is what is coming out of this. I thought that the Minister’s responses recognised in many ways that the issues exist, but she believes that they are already covered in the Bill. We are going to need to press those aspects further as we go through the Bill. It is essential that the Bill is understood not only by those of us who work in the world of politics but, even more so, by those at the sharp end of business and industry who have to live with the consequences of it. They need transparency, and they need to be sure that they are not being enticed down a road where there may not be any hope of a satisfactory outcome. As the Bill progresses and we probe more aspects of it, I hope that that light will start shining through and that, if necessary, there will be appropriate briefings outside Committee on any further thinking or clarity that the Government can give to these issues.
I believe that the matters raised in my two amendments are relevant. The Minister confirmed that, to all intents and purposes, what is covered in Amendment 3 is covered by the Bill. That is fine; I said that I might be knocking on an open door. I am grateful for that, but I have no doubt that we will need to return to some aspects of the more general debate we have had. On that basis, I beg leave to withdraw the amendment.
Baroness Blake of Leeds
“The subsidy strategy
(1) The subsidy strategy is a strategy made by regulations made by the Secretary of State which outlines how, in the opinion of the Secretary of State—(a) subsidies should be used by public authorities to support the delivery of an industrial strategy,(b) subsidies should contribute to progress towards meeting the target in section 1 of the Climate Change Act 2008 (carbon target for 2050), and(c) the subsidy control scheme established under this Act should interact with, or be otherwise influenced by, other public schemes including (but not limited to)—(i) a UK Shared Prosperity Fund, and(ii) the Levelling Up Fund.(2) Regulations under this section are subject to the affirmative procedure.”Member’s explanatory statement
This amendment seeks the creation of a clear subsidy strategy, to be laid before and approved by Parliament. Such a strategy would set out how Her Majesty’s Government expects subsidies to be used to support a wider industrial strategy and progress towards the 2050 net zero target. It would also outline how the new subsidy control scheme works alongside other initiatives including the Shared Prosperity Fund and Levelling Up Fund.
Baroness Blake of Leeds (Lab)
My Lords, I rise to move Amendment 4 in the name of my noble friend Lord McNicol. As the explanatory statement says, it
“seeks the creation of a clear subsidy strategy, to be laid before and approved by Parliament. Such a strategy would set out how Her Majesty’s Government expects subsidies to be used to support a wider industrial strategy and progress towards the 2050 net zero target. It would also outline how the new subsidy control scheme works alongside … the Shared Prosperity Fund and Levelling Up Fund.”
I am pleased also to speak in support of Amendments 5 and 25 in my noble friend’s name, and Amendments 4A and 5A in the name of the noble Lord, Lord Ravensdale.
I will preface my comments by setting some context. The real desire to seek to improve the provisions in the Bill comes from a place of ambition for the economy of the whole United Kingdom, unlocking potential while recognising regional inequalities. As we have heard in the debate thus far, we are approaching this issue, as always, in a spirit of transparency, fairness and purpose. As we know, at Second Reading a number of noble Lords voiced their concerns that this new subsidy control system does not appear to be linked to a wider strategy, whether that is delivering strands of an industrial strategy—does one still exist?—or supporting the Prime Minister’s levelling-up agenda and the net-zero strategy, which I mentioned and which we will come on to in debates on later amendments.
These are interesting and potentially stressful times for authorities across the country, as new funding mechanisms and policy initiatives are implemented and the realities of Brexit become more apparent. I confess that I believe Her Majesty’s Government have somewhat dragged their feet on implementing their long-promised UK shared prosperity fund. The early indications are that many of the biggest recipients of the European Regional Development Fund are not only losing out but are likely to lose out to the tune of tens of millions of pounds a year.
Lord Ravensdale (CB)
My Lords, I shall speak to Amendments 4A and 5A in my name and first apologise to noble Lords for their late tabling. I thank Jonathan Branton, a subsidy control expert at DWF Law, for his assistance with my remarks today.
As I said at Second Reading, for me the key aspect that is missing from the Bill is how it will assist disadvantaged areas and how it fits with the levelling-up agenda. I see the Bill as being a central part of how levelling up can be delivered through targeted subsidies into disadvantaged areas. What business across the UK really needs is clear visibility and legal certainty about which areas will benefit from financial assistance, through an evidence-based mechanism. Then the market can get on and do its job of driving investment into those left-behind areas of the UK and deliver on levelling up.
I listened carefully to what the Minister said at Second Reading: that the Bill gives public authorities the flexibility to grant subsidies where they are best served to support economic growth in local places. At present, however, it does not give businesses clear visibility of which areas in the UK will benefit from increased help. There is nothing to differentiate between a wealthy area and a disadvantaged one.
Having a commitment in the Bill on levelling up could not be more timely, with the levelling-up White Paper being due for publication imminently. We have had continued debate over the last two years about what levelling up actually means, as the noble Baroness, Lady Blake, said. If the Government could point to a clear strategy within the Bill to deliver on it and prioritise business investment into disadvantaged communities, that would send a powerful signal about their intent to those communities across the UK and indeed to the business community.
My Amendment 4A is in similar vein to Amendment 4, tabled by the noble Lord, Lord McNicol, and spoken to by the noble Baroness, Lady Blake, which I also support. It proposes an areas of disadvantage subsidy strategy, which would need to be laid before Parliament within six months of this Act being passed. Critically, that would need to involve defining what a disadvantaged area was. Under the previous subsidy regime, we had a map defining assisted areas. That mechanism was not perfect; there are a number of issues with attempting to draw on a map which areas would receive preferential treatment. Previous maps were developed by Eurostat, but we now have the opportunity to develop a map that is right for the UK and uses the wealth of economic data available at a local level. For example, I am co-chair of the Midlands Engine APPG. The midlands engine encompasses many of the most deprived areas in the UK and is home to around 11 million people. Our regional observatory produces a wealth of economic data that could be used in the development of such a map.
As I highlight in my amendment, a map is not necessarily required here. A list of agreed economic indicators could do the same job and perhaps provide a more flexible route to defining a disadvantaged area in the context of subsidy control. Again, it would give business the clarity needed on where subsidies would be available to drive inward investment.
My Amendment 5A would simply serve to make Amendment 4A operable, as Part 1 of the Bill deals only with definitions, by making reference to the strategy in Schedule 1.
In conclusion, the way the Bill is drafted, if a manufacturer were deciding whether to locate in Scunthorpe or Surrey, or deciding between Bilston and Buckinghamshire, there is nothing to advantage the former locations. The legal certainty that would come from implementation of an areas of disadvantage subsidy strategy would be attractive for many organisations and businesses considering offers from different areas, and would therefore make a key contribution to levelling up across the UK. I hope the Minister will agree with the logic here and I look forward to her response. In particular, I would like to get her views on how the Bill will support levelling up from a national perspective. When a business is deciding where to locate, what clear visibility of subsidy support in disadvantaged areas will there be to inform its investment decisions?
Lord Thomas of Cwmgiedd (CB)
My Lords, I shall speak to Amendment 6. I am extremely grateful to the noble Baroness, Lady Randerson, and to my noble and learned friend Lord Hope of Craighead for their support of the amendment. It tries to grapple with the areas that have been raised so far, but it must be remembered that the Bill applies to agriculture as well, and that makes the task much more complicated. It seems to me that the Bill provides in Schedule 1, that it is possible to have a subsidy that addresses an equity rationale, such as social difficulties or distribution concerns.
It is unfortunate that the word “equity” was used, because we used it in a completely different sense in our earlier debate. That must be one really good reason, if I may say so with respect, for not adopting the amendment of the noble Viscount, Lord Chandos—but I did not mean that as a throwaway line for the Minister. We will need to know what it means, and it is very important, it seems to me, to grapple now with the question of how we take into account the need for levelling up, or providing subsidies, where regional help is necessary in agriculture and fish. I think this is ultimately a political question—I will return to that in a moment—and the worst possible thing to do would be to allow independent bodies, particularly judicial bodies such as the CAT, to be embroiled in political decision-making.
It seems clear to me that we must have some form of agreement or definition of what are the criteria, or a map if need be, by which we can apply levelling up. As I understand it, we could look at GDP per person, which is the European Union method. We could look at GDP per employee. We could look at household income, and could then dream up—I do not mean that disrespectfully because it was no doubt carefully considered when it was done—a broad economic index that takes into account productivity, skills, unemployment rates, population density, employment, et cetera. We must be very clear how a business, or Ministers giving agricultural subsidies, can direct those subsidies according to some metrics that have a UK-wide basis. Is that something that can be done?
My concern here arises out of the criticism that has been made—I do not want to go into the merits of the criticism—of the way the social prosperity fund has had its index looked at. It must, it seems to me, ultimately be a political decision to decide what are the factors that go into making disadvantages which need to be addressed for a levelling up. This is not something a court should do; it is a political question and, for the sake of the courts, we should not be shunting political decisions to a judicial body, or an independent body such as the CMA.
That is the first proposition: this is a political question and it should be resolved politically. There are two ways of doing that. The first way and, I argue, by far the best way is to do it is by agreement in a common framework.
Baroness Sheehan (LD)
My Lords, I will speak to Amendment 4 in the name of the noble Lord, Lord McNicol of West Kilbride, and I thank the noble Baroness, Lady Blake of Leeds, for her comprehensive introduction. I shall add just a couple of points. I particularly enjoyed the contribution of the noble Lord, Lord Ravensdale, in his introduction to his amendment, and that of the noble and learned Lord, Lord Thomas. They illustrate clearly why the Bill is lacking in detail and clarity, and why Amendment 4, to which I put my name, is totally necessary.
The letter from the Minister last week gave us some hope that, even six months on from when the Bill started its parliamentary progress in the other place, we would have greater clarity and detail on what is meant by the terms used in the Bill—to go back to basics. However, other than broad sums of money around which a subsidy, a subsidy of interest or a subsidy of particular interest may be defined, we have very little—apart from a promise of more detail to come. Even the sums attached to those definitions are liable to change, we are told, so we really are none the wiser.
The referral criteria for the subsidy advice unit—the SAU—relating to a subsidy of interest or a subsidy of particular interest tell us very little. In any case, we are told that the SAU’s report will be non-binding on public authorities, regardless of whether the referral is voluntary or mandatory. This leaves public authorities with very little guidance, and a next-step referral to the CAT is really more draconian than it need be had they been given sufficient criteria before making their applications.
The draft statutory instrument, which the Government published last week, was supposed to shed light on their thinking. It is helpful in some respects but we all know how a statutory instrument can be structured. It leaves too much to the imagination; there are too many gaps which will be filled later. Instead of clarifying what we already have, in fact it introduces a new term of a “sensitive sector”, which we are told will be defined later by an SI. I would be grateful if the Minister could shed some light on that today.
I found the statements on the streamlined routes very helpful. They seem to provide some clue as to the sort of framework that might be applied but, yet again, there are too many gaps. Too much is left to be filled in in the future, when those details are required in the present. As the noble Baroness, Lady Blake, said, the Government want us to take much on trust but trust in the Government is in very short supply at the moment. Those streamlined routes for clean heat and for research, development and innovation are helpful. It seems that some of the fundamentals of those illustrations can be put into the Bill. At least, it would be useful to know the timeframe within which we can expect to see further illustrations. It would be really useful to see a streamlined route, for example—the Minister is coughing; I hope he is okay—for fulfilling their policy of better energy efficiency in the domestic sector.
I agree with the noble Lord, Lord McNicol of West Kilbride, that a clear subsidy strategy needs to be laid out within the Bill, setting out how the Government expect subsidies to be used to provide a wider industrial strategy and progress towards the 2050 net-zero target. Importantly, it would also outline how the new subsidy control schemes work alongside other initiatives, including the shared prosperity fund and the levelling-up fund, details of which would be appreciated sooner rather than later.
The abolition of the industrial strategy last year and the disbanding of the Industrial Strategy Council was, according to the BEIS Commons Committee, a retrograde step. I therefore hope that the Government will give serious consideration to Amendment 4 and the other amendments in this group, and recognise the merits of having greater clarity in the Bill, given the boost it will give business to have long-term consistency and clarity.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support these amendments, which are very welcome because they make up for what the Bill lacks. It is a very technocratic Bill, with lots of rules and principles, but it completely misses the opportunity to develop a grand strategy for what we want subsidies to achieve. The economic power of government finance is obviously huge; it can sway the economy for good or bad. Simply constraining subsidy-making powers, rather than planning what we want to achieve for those subsidies, indicates a huge lack of ambition on the part of the Government.
Part of that reflects an insurmountable tension within this Government, from those who are so free-marketing that they verge on being anarcho-capitalists to those who want to use the power of state finance as a way of sucking in voters and making a political legacy for themselves. Both those groups miss the point: that the Government should lead the economy into the future that we want to see and live in—one that would be comfortable for the majority of people. We need strategies for how we are going to deal with achieving net-zero carbon emissions and eliminate poverty. That would be a fantastic thing to want to achieve but, somehow, this Government actually increase poverty. Of course, this is not just about wealth; it is also about well-being. The Bill could be a chance to achieve all those things. However, the Government have to get back to the job they should be doing, which is improving the well-being of the population.
Before I sit down, I want to mention the noble and learned Lord, Lord Thomas of Cwmgiedd. He stood and spoke for five minutes without notes, apart from two scribbled sentences on a scrap of paper that I do not think he even looked at. We should all speak without notes. I am one of the biggest culprits; I cannot.
Lord Lamont of Lerwick (Con)
My Lords, I had not intended to intervene in this debate; I hope that the Minister will forgive me. I know that the role of the Government Back Benches is to sit there and keep quiet. I apologise for giving way to temptation, but I do so in a genuine spirit of inquiry.
I was very interested in what the noble and learned Lord, Lord Thomas, said about the question of a map. I have a personal reason for being interested because, dare I confess it, very many years ago—I try never to talk about the past—when I was a Minister in the Commons, for what was then the Department of Industry, I was responsible for radically altering the map that existed for assisted areas in the early 1980s. We decided that this needed doing partly because of the cost but also because the assisted areas map had grown so large that it covered most of the country. There had been pressure to add to it and successive Governments had given way, so the map had got bigger and bigger. Also, rather than being given as the noble and learned Lord implied it should be, the assistance was given automatically. It was thought that there was therefore a lot of deadweight cost in the subsidies system—that is, people got a subsidy if they went to area X simply because they went there. That is what persuaded us that we should radically curtail the map to make it more concentrated.
Over the years, I have reflected on whether that was the right decision because what has happened in this country is that regional inequalities seem to have grown rather worse, while many of the most deprived urban areas have got even worse. I spent many of my teenage years living in Grimsby, a town that has been devastated by industrial change and had huge problems. I do not think that the move away from automaticity and a map, looked at over decades, has perhaps had quite the benefits that we thought it had.
One argument, of course, was for moving to a more selective basis of help because you were more likely to satisfy the criterion of additionality. In the arguments put forward by the noble Viscount, Lord Chandos, about equity we have already had a little discussion about additionality—that is, if the Government or a public body give assistance, is it assistance that would not have been given otherwise? That was an important criterion. However, as I say, when I look at the thing in the round, whatever the logic of a more selective approach, I am a bit sceptical as to whether a wholly discretionary and selective approach can work.
There is something to be said for looking at degrees of automaticity and, as the noble and learned Lord, Lord Thomas, said, having a map. He posed the question of how it would be done and what the criteria would be, which is a difficult question. It used to be done on the basis of unemployment combined with travel-to-work areas. I think you would not be able to do it without giving some such weight to unemployment; obviously, it would have to be in a travel-to-work area.
Baroness Randerson (LD)
My Lords, I will speak specifically to Amendment 6, to which I have added my name. The noble and learned Lord, Lord Thomas of Cwmgiedd, explicitly outlined its importance.
This very important group of amendments seeks to get to the core of what this is all about: why are subsidies required? As it stands, the Bill sets out seven subsidy control principles, which you could actually call rules and which on their own can easily be interpreted in a mutually contradictory way. They are further complicated by additional “energy and environmental principles”, by “subsidy schemes” versus “streamlined subsidy schemes”, and by “schemes of interest” versus schemes of “particular interest”.
This web of rules is combined with a complete lack of context. I take to heart the points just made by the noble Lord, Lord Lamont. As a councillor in south Wales, I was on the receiving end of changing maps. There is great significance in maps as an instrument to encourage investment in certain areas. If you are not going to have a deprived areas map for places to be assisted, you can have a carefully written industrial strategy that sets out terms on which assistance would be given to help the less prosperous areas. There is also a clear potential for overlap with other government schemes. It seems that levelling-up funding could well be seen to be in direct contravention of several of the principles set out in the Bill.
All this is further complicated by the unbalanced power structure at the top. I will not go through it again, but we will undoubtedly do so at different points on our amendments over the next few meetings. Briefly, the crux of the problem is that the Secretary of State is the Minister for England at one moment and the UK’s referee at another. In addition, there is a weak regulator with ill-defined powers and a lack of transparency, with high financial limits at which subsidies have to be registered. All this together strikes me as a chaotic system that is cooking up a bureaucratic nightmare because it does not have the clarity of the map or of the industrial strategy. It is a lawyer’s dream come true and invites litigation.
My noble friend Lord Fox gave us some excellent examples, and we could add to them the overt conflict between the principles of this Bill and those of the ARIA Bill. I was one of the Peers sitting here prior to Christmas discussing the Government’s desire to have the freedom to invest without particular principles that they would have to obey. I cannot see how that does not conflict with this Bill.
The amendment from the noble and learned Lord, Lord Thomas, tries to start to sort this out. So far the Government clearly do not know what they want, or they would have set it out in much greater detail and with much more clarity. Another way of looking at this is that the Government have been given all the cards in terms of power and can brush aside competition. They can hide significant subsidies that fall below the very generous thresholds that they have set out. It leaves the Government free to pick winners on the flimsiest of evidence—almost as was done over PPE at the start of the Covid pandemic, and we know what grief that has caused to both the Government and taxpayers.
Crucially, Amendment 6 sets out a process of agreement between the four Governments on what constitutes “disadvantaged areas” that are hence in need of levelling-up subsidies. As the noble and learned Lord, Lord Thomas, said, this must be a decision taken at a political level. It is not suitable for the CMA or the Competition Appeal Tribunal; their job is to judge individual cases against the rules established as a result of political decision-making.
Amendment 6 would once again establish in legislation the existing concept of common frameworks in relation to this topic. There are of course dozens of common frameworks on everything, from nutritional labelling to rail technical standards, from blood safety to motor insurance. Each has a set of rules on how the four Governments of the UK will co-operate to ensure that individual internal markets work properly. If any mechanism is likely to disrupt relationships within the internal market then subsidies are the one, so a formal common framework with evenly balanced dispute mechanisms is required. That way, the Governments of the four nations can establish their own priorities for subsidies and ultimately subject them to a formal dispute procedure if needed.
Lord Wigley (PC)
My Lords, I had not intended to intervene in this debate, and I am going to do so not from a particularly Welsh angle but from a general one. I identify with Amendment 6 and the comments of the noble and learned Lord, Lord Thomas of Cwmgiedd, with regard to the practicality of any Act like this being interpreted by the courts. We are going to create a monster if we are not careful, and it may well fall down because of its own inertia.
Three areas of experience spring to mind for me in addressing this question. The first is the old—am I allowed to say it?—Chinese saying that if you give a man or woman a fish then you feed them for a day, but if you teach them to fish then you feed them for a lifetime. Therefore, any long-term economic strategy must be geared towards enabling that to fulfil itself, so that we are not just providing subsidies for the day but providing a basis on which to build.
The second experience that comes to mind is writing an economic plan back in 1970 with the late, great Phil Williams, whom some colleagues here will remember from the National Assembly. We did an analysis to find winners in terms of industry and in terms of geographic location. Most of them worked out. In fact, they were fairly common-sense things—electronics, chemistry and so on—and I suspect that they would have fulfilled themselves had there been no grant mechanism, because they were doing what there was a momentum towards.
My third and final point concerns our experience in Wales with regard to European funding; I have no doubt that similar experience will have been obtained in Cornwall, South Yorkshire, Merseyside, parts of Scotland and wherever such funding was available. The funding went not just to narrow projects but to areas of investment with a long-term payback, such as work, even blue-sky projects, in our universities. These would not create immediate jobs but provided a basis on which industry and commerce, and those who were going to invest in them, could look to the future. The scheme of grants that was available then through the European Union was very broad; we should not ignore that dimension. We need mechanisms that enable that to happen. If we can get this right, it could be very valuable. It may well be that this Bill has that potential in it, but there is a lot that needs to be clarified at the moment. Some of these amendments may help tease that out.
Lord Bruce of Bennachie (LD)
My Lords, I wish to intervene briefly because this has been a really interesting debate. The intervention by the noble Lord, Lord Lamont, seemed to ask legitimate questions about whether the intention of the Government’s strategy relates to levelling up or regional development.
In the 1970s, I was involved with the economic development strategy. I remember the map that the noble Lord, Lord Lamont, talked about. It was about unemployment and travel to work but it did not always take account of things such as depopulation. There are certain communities where, if there is no work, people go and look for it, but the communities are then told, “You don’t have high unemployment, so you’re not entitled to any support”. Yet those people can be encouraged to stay there, or alternatives can be brought in.
Secondly, it seems to me that this should have some relationship to the economic realities of the region. We have seen situations in which ideas have effectively been dumped into a region, with massive incentives from government, but simply did not survive. These were big projects that became white elephants and embarrassments. On the other hand, supporting local and growing businesses has proved very effective. It is exactly the kind of thing that local councils and local organisations are better at, because they have that degree of knowledge in a way that central government often does not and they are kind of organic.
I remember, in the 1970s and 1980s, the Highlands and Islands Development Board, which was set up in the 1960s. It described itself as an investment bank with a social conscience. At the time, the Scottish Affairs Select Committee was holding an inquiry that Conservative MPs had asked for, originally with a view to discrediting the board. I must say, they rather changed their view at the end of the evidence. The chairman was asked, “How many of the projects that you have supported failed, and what was the average rate of return on the investment you made?” We got an answer to those. When asked, “How did those compare with the private sector?”, the answer was, “Almost exactly the same.” The question then was, “So why do we need the Highlands and Islands Development Board?”, to which the answer was, “All these projects were turned down by the private sector in the first place but succeeded.”
We have been through a period of highland depopulation, and it is beginning to happen again. In my part of the north-east of Scotland, we lost our development assistance, perfectly understandably, on the arrival of the oil and gas industry. Now that it is leaving, we may well need to support not the fossil fuel industry but new industries, perhaps related to energy, or some of the traditional industries that add value to the food production of the area and that sort of thing.
I suggest that we are entitled to ask the Government for some kind of explanation of strategy as to how this is going to work, whether there should be a map and what kind of sectors can be expected or allowed to be encouraged. At the very least, the objective over 10 years would be to reduce the inequalities between the high-growth, high-population areas and the low-population areas to the benefit of both. I accept the point that stealing from one to give to the other is not the answer, but it is sometimes quite difficult to know what the balance is within that. The questions being asked are legitimate and justified; the Government should give us some idea of what the answers might be.
Lord Fox (LD)
My Lords, as we have heard, this set of amendments seeks to create some foundation for a future subsidy regime, whether that is geographical or socially minded or in terms of activity.
In introducing the Bill, and at other times, the Minister has sought to use phrases such as “flexible” and “light touch” to describe the Government’s plans. We do not have to rely on our own experience: we can read what the noble Lord, Lord Agnew, wrote in the newspapers over the weekend about how he saw a light touch rooted in ad hoc decision-making that created a soft touch for light-fingered individuals. We do not want to enshrine that in an Act of Parliament.
To guide where we are going, it is useful to look at where we have been. That is not nostalgia; it is common sense. As my noble friend Lady Sheehan said, about 10 months ago, the Government abandoned any pretence that they were seeking to deliver a modern industrial strategy and withdrew their promise to set out a long-term plan to boost the UK’s productivity. This interrupted what had been something of a consensus. From Heseltine to Mandelson to Cable to Clark, all of them worked within the same tramlines to a lesser or greater extent. This is characteristic of a Government who constantly seem to want to chip away at things that are multilateral and consensual, and to introduce their own stand-alone version.
As I am sure the Minister remembers, the strategic intensions for the industrial strategy were artificial intelligence and data, clean growth, the future of mobility and supporting an ageing society, alongside the important need to improve the UK’s declining productivity. As we know, the political U-turn was executed by the Business Secretary, the right honourable Kwasi Kwarteng, who at the same time disbanded the Industrial Strategy Council, which was due to oversee this whole process. Meanwhile, I understand that, in BEIS, the associated industrial strategy team was also broken up.
What we got instead was the Build Back Better brochure: a glossy, colour catalogue composed half of launches—usually ones that had already happened—backed up by page after page of colour library photos. The Minister may note that the picture illustrating the infrastructure page is of a Victorian viaduct, which perhaps rather indicates the direction in which the Government might be going. In other words, there is nothing now to guide where we might focus subsidy investment. I understand the Minister’s allergy to central micromanagement but what we have been left with will be chaotic and, I am sure, wasteful and unfair.
On the issue of focusing on regions or areas, there is an example we could look at. It is called the European Regional Development Fund—the ERDF. It aims to strengthen economic, social and territorial cohesion in the European Union by correcting imbalances between its regions. It is what you might call levelling up. It states:
“The ERDF finances programmes in shared responsibility between the European Commission and national and regional authorities in Member States.”
I think that reflects some of the words we have heard already. It goes on:
“The Member States’ administrations choose which projects to finance and take responsibility for day-to-day management … In 2021-2027 it will enable investments in a smarter, greener, more connected and more social Europe that is closer to its citizens.”
The aim is to create businesses that are
“more competitive and smarter … greener … more connected”,
supporting the social life of the areas in which they operate—this very much speaks to the point of the noble Baroness, Lady Jones, about improving the lives of the people who live in the country, which is something we should all be seeking every time we debate an issue—and are
“closer to citizens, supporting locally-led development and sustainable urban development.”
I am not proposing that the Minister leads us bravely back into the European Union. What I am proposing is that the Minister learns from the experience of others and applies that learning in a sensible way. This is an opportunity to do such learning.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
Apologies; I thought that the noble Lord, Lord McNicol, was going to speak there. I thank the noble Lords, Lord Ravensdale and Lord McNicol, the noble Baronesses, Lady Blake and Lady Randerson, and the noble and learned Lord, Lord Thomas, for tabling Amendments 4, 4A, 5, 5A, 6 and 25.
Let me go back to first principles. The Bill establishes a clear, flexible set of rules for granting subsidies for all public authorities in the United Kingdom. Its central function and purpose is to reduce harmful distortions to domestic competition and investment—as well as to trade and investment between the UK and other countries, of course—which can arise from the giving of subsidies. The new domestic regime will not, however, instruct public authorities on which policy objectives they should direct subsidies towards, so long as they remedy a market failure or address the much-discussed equity concerns.
We are not in the business of interfering with the policy decisions of democratically elected public bodies in Scotland, Wales, Northern Ireland or elsewhere in the United Kingdom. In keeping with this, the new subsidy control regime will empower public authorities to design subsidies in a way that is tailored and bespoke for their local needs, without facing excessive bureaucracy in order to do so. That is why we have provided clear guidance that supports public authorities, and which they must consider, to support them in choosing the appropriate indicators because we believe that they are the ones who are best placed to make those final decisions.
Turning first to Amendments 4 and 25, I thank the noble Lord, Lord McNicol, for his amendments; the noble Baroness, Lady Sheehan, put her name to Amendment 4. However, it is my view that Amendments 4 and 25 go against the grain of the Bill. Taken together, they would provide for the Secretary of State to make, by regulations, a strategy that sets out how subsidies should be used by all public authorities to support the delivery of various other strategies. They would then require public authorities to consider the subsidy strategy before awarding a subsidy or making a subsidy scheme. The UK Government have developed various strategies for specific policy issues and will continue to do so. This is where and how the Government will articulate and develop a coherent approach to issues such as net zero and levelling up.
To take an example, in March last year, the Government published a policy paper on how they will build back better, setting out plans to support growth through significant investment in infrastructure, skills and innovation. The Government will also soon publish a levelling-up White Paper—eagerly awaited by the noble Baroness, Lady Blake, no doubt—articulating how bold new policy interventions will improve opportunity and boost livelihoods across the country as we recover from the pandemic. On the points made by the noble Baronesses, Lady Blake and Lady Sheehan, the shared prosperity fund will ramp up to £1.5 billion per year in 2024-25 and total funding will, at a minimum, match the size of EU funds in all nations each year. The Government will publish further details of the fund in due course.
The Committee should bear in mind that subsidies are but one possible tool in the toolbox for supporting strategic public priorities. It is not necessary for the UK as a whole, or even the UK Government, to have an overarching strategy for the provision of subsidies, much in the same way as there is no need for a broad strategy on the use of regulatory levers. Strategies should focus on how to tackle the major issues, rather than the specific tools through which we may address them. A subsidy strategy could well risk steering public authorities towards using subsidies inappropriately or indiscriminately.
It is imperative that public authorities give proper consideration, on a case-by-case basis, to whether the subsidy they propose is the appropriate instrument for achieving any given policy objective. In many cases, there may be more appropriate measures which a public authority can deploy. To take an example dear to the heart of the noble Baroness, Lady Jones, meeting our net-zero targets will involve leveraging a mixture of public interventions, including but not limited to regulation, the emissions trading scheme and public procurement, as well as appropriate and carefully targeted subsidies.
I will now address Amendment 5, tabled by the noble Lord, Lord McNicol. Subsidy control principle A allows public authorities to address inequality and disadvantage through the use of subsidies. It states:
“Subsidies should pursue a … policy objective”
that either remedies a market failure or addresses
“an equity rationale (such as social difficulties or distributional concerns).”
Amendment 5 seeks to include areas of relative economic deprivation as an example of an equity rationale that may be addressed through subsidies. I welcome the noble Lord’s support for levelling up and his interest in ensuring that the subsidy control regime provides for this. I can assure him, however, that the Bill already facilitates the use of subsidies to support areas of relative economic deprivation.
The concept of equity rationale set out in principle A unquestionably covers investment in areas of relative economic deprivation. It is my view that guidance is the best place to provide further examples of legitimate policy objectives for subsidies and, more broadly, to address the practical application of those principles. The Government recently published illustrative guidance on the application of the subsidy control principles. This elaborated on the meaning of an equity objective:
“Equity objectives seek to reduce these disparities between different groups in society or geographic areas.”
It further states that subsidies targeted at
“Levelling up a deprived or disadvantaged area”
would be an example of an equity objective. I would be very happy to discuss this further ahead of Report with the noble Lord, Lord McNicol, and my noble friend Lord Lamont as I am keen to ensure that the intention here—that regional disadvantage is an example of equity rationale—is clear.
The amendments tabled by the noble Lord, Lord Ravensdale, raise a number of similar issues. I am glad of the opportunity to address those as well. A Bill for regulating the granting of subsidies for all purposes, in all policy areas, is not the place to articulate a levelling-up strategy. There will be plenty of time to debate that when the White Paper is published. The purpose of his amendment is to ensure that subsidies to remedy regional disadvantage are permitted under this regime, and on that point I hope I can give him complete reassurance.
As I have mentioned, this is an inherently permissive regime; there is no default prohibition on subsidies. I confirm again that addressing regional disadvantage is an equity rationale for the purposes of principle A, and one that would therefore justify the giving of a subsidy. In contrast to the EU state aid regime, there is no need for central government to set out maps or other metrics of deprivation in the Bill to permit levelling-up subsidies. By empowering public authorities at all levels of government to give subsidies that are designed by them to meet the needs of the places for which they are responsible, the Bill will undoubtedly be an important enabler of the Government’s levelling-up agenda.
However, the subsidy control regime is distinct from it. It is not directly through this Bill or regulations made under it that the Government will pursue their programme to level up the UK. It is perhaps also worth noting that, just like the EU state aid regime, the Bill is concerned with regulation; it is not a source of funding. No doubt there will be lots of debates at other times and in other places about the appropriate level of funding, but I submit that Committee on the Bill is not the place to have those debates. Everything is in its place. This is a flexible and permissive subsidy control regime. Although it facilitates levelling up, it is not the place to define it and it should not be seen as the main vehicle for pursuing it.
Lord Purvis of Tweed (LD)
As I understand it, the guidance states that every authority now needs to define for itself what a social equity is as far as deprivation is concerned, even taking into consideration what relative that would be. It says:
“Public authorities must use supporting evidence which … should include measures or statistical indicators set against appropriate comparators”.
That suggests that every public authority defining its own scheme will have to provide its own statistical basis and definitions. How will the CMA judge those against others? Given that there will be no commonly agreed areas of social deprivation, is it not likely to create even more bureaucracy and confusion if every public authority has to make its own definitions and provide its own necessary material and statistical basis?
Lord Callanan (Con)
It is for the CMA to provide guidance on those matters but for the authorities themselves to determine whether the subsidy in question is justified. Then, but only if it is challenged against the principles in the Act, will the CAT be empowered to make a judgment on whether it is in compliance with the specific provisions in the Act.
Baroness Blake of Leeds (Lab)
My Lords, I express my gratitude for all the contributions to this increasingly important debate. Judging by the response from the Minister, there are still many areas that I am sure we will want to pursue and explore and to which we will come back at later stages of our proceedings. I echo the comment by the noble Lord, Lord Ravensdale, that there is a clear question here: is there a clear strategy? That is something that we can all question as we go forward.
Many of us in the Room today have been involved with the vexed issue of distributing regional funding, which is extraordinarily complex. I come back to the very clear comments by the noble and learned Lord, Lord Thomas, about the nature of the political decision in this. I have enormous concerns about how the whole process will be taken forward if it is allowed to stay in its current form, and real concern about the lack of focus on what it is going to mean in terms of benefit for communities and for people. As the noble Baroness, Lady Sheehan, emphasised, a lack of clarity, very little in the way of guidance and too many gaps have been the theme that has run through this debate.
I have to pick up one of the comments that the noble Baroness, Lady Jones, made concerning tension within the Government. I think that helps to explain where the lack of clarity has come from.
I think we would all welcome improvements. No one is trying to suggest that what we had before was perfect. I myself go back to the time of SRB funding, for example, when local authorities were put by a national directive in the position where communities were split down the middle, with funding going into an area on one side of a street but not the other. We do not want to move away from local determination, and that is very much the spirit in which we are taking this up.
With those comments, and with a clear understanding that we will be coming back to discuss these important matters, I beg leave to withdraw the amendment.
“(c) progress towards meeting the target in section 1 of the Climate Change Act 2008 (carbon target for 2050).”Member’s explanatory statement
This amendment adds consistency with the UK’s net zero commitments as a particular consideration for public authorities before deciding whether to give a subsidy.
Lord McNicol of West Kilbride (Lab)
My Lords, the future of our planet should be of concern to us all. I am sure the noble Baroness, Lady Boycott, will argue that language around the preservation of it should be part of all our legislation as we move forward.
I have tabled Amendments 7 and 11, both of which are quite short. Amendment 7 would insert proposed new sub-paragraph (c), which refers to
“progress towards meeting the target in section 1 of the Climate Change Act 2008 (carbon target for 2050).”
This amendment adds consistency with the UK’s net-zero commitments as a particular consideration for public authorities before deciding whether to give a subsidy.
Amendment 11 is another short amendment, very much along the same lines, to insert proposed new sub-paragraph (c), which refers to
“delivering progress towards meeting the target in section 1 of the Climate Change Act 2008 (carbon target for 2050).”
We also support many of the other amendments in this group. I hope to hear the Minister provide a clear explanation exactly how the Bill as written, if these amendments are not accepted, will move us closer towards the 2050 net-zero target, and how the use of subsidies could and should contribute towards that.
There are a number of legitimate reasons for making subsidies to industries that have traditionally been associated with damage to—or, at least, not the preservation of—the environment. We have campaigned on this over the years. Many public authorities may wish to support jobs in industries such as steel that have environmental issues. Conversely, subsidies can be used to facilitate the green transition by investing in newer, greener technologies and approaches.
Any climate commitment in the Bill will have to be carefully crafted to balance any immediate economic concerns with the long-term environmental ones. As COP 26 highlighted, we are a long way from delivering the scale of change needed to preserve this planet for future generations. All the parts of the UK economy—our devolved authorities, local authorities and central government—will have to contribute towards hitting emissions and other targets.
The Minister will no doubt point to Schedule 2 as an example of Her Majesty’s Government’s commitment to the green agenda but, as we discussed at Second Reading, the application of the environmental principles is somewhat limited. In the further amendments to the Bill, does the department aim to broaden them in any sense?
From what we have heard in response to other amendments, the Minister is likely to resist the amendments in this group and not want to set any precedent, yet we have seen various commitments made in recent times, whether in the Pension Schemes Act, the Financial Services Act or the suite of Defra legislation, in which commitments have been given and gone into in more detail.
We want to support businesses to support the planet, and many will want to do the right thing, but financial incentives are often needed to help drive those key changes. This new subsidy control scheme should wherever possible support the transition to net zero. At Second Reading, the Minister mentioned net zero three times in his opening and closing remarks, but in the Bill as now crafted there is no mention of it. These amendments seek to impress upon the authorities that would be making subsidies the need for alignment with support for net zero. With that, I beg to move.
Baroness Jones of Moulsecoomb (GP)
I am going to ask the Minister four questions. I would like an answer today. If I do not get the answers today, I would like a meeting with him to explain why it is incredibly important that he listens first-hand. One issue I have is that the Government keep bringing us these thin Bills that ought to include things such as the ecological crisis—climate change—but do not. We as an opposition end up tabling all these amendments and then the Government complain because we are taking too long to debate the Bill. My first question is: please will the Government start putting these issues into Bills so that we do not have to keep making the same arguments about the ecological emergency? Why is that not in the Bill?
The subsidy principle should ensure that all our environmental and climate targets are met. Ecologically damaging, polluting industries should be weaned off public money completely and, ultimately, binned. My Amendment 8 would ensure that subsidies contribute towards limiting global temperature rises to 1.5 degrees centigrade of warming. That is what scientists say we must achieve, so our laws should reflect that reality. I hope that the Minister will not insult our intelligence by telling us that the Government are on track to do that; they most definitely are not. I can list an awful lot of legislation that has been passed that is damaging our chances of getting to that lower level of global warming.
My Amendment 33 would prohibit subsidies for fossil fuels and extend the definition of fossil fuel subsidies to include any government policy that makes fossil fuels cheaper than their true cost. This is really important, because fossil fuel subsidies are not just about giving money or tax breaks but include favourable regulatory systems, exemptions from environmental laws and so on. It is essential that we capture all those factors in the calculation of a subsidy.
My second question is a very particular point, and perhaps cannot be answered today. It is about community energy schemes. They are quite important in a lot of local communities. Please can the Minister tell us something about them, perhaps at a later date? I might have to bring back another amendment.
Finally, I am opposing the Question that Clause 51 stand part of the Bill. Nuclear energy is an energy scheme or an environmental scheme. I need an explanation —this is my third question—why nuclear energy is expressly excluded from the energy and environmental principles in the Bill. This seems to allow for favourable subsidy arrangements to be given to the nuclear industry against renewable and zero-carbon energy sources, which will clearly distort the market in favour of nuclear. If nuclear can compete with renewables, let it do so and scrap this exemption. If it cannot compete with renewables in a fair fight, why pursue nuclear at all? This is a probing amendment at the moment, but I will probably bring it back on Report and push a vote on it, because I am so incensed that there is not a fair fight between nuclear, which is potentially extremely polluting, and renewables. My fourth question is: will the Minister meet me so that I can explain all these issues clearly and with much more energy to him?
Baroness Sheehan (LD)
It is always a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb —we are often on the same page. I shall speak to Amendments 9, 10, 12 and 29 in the name of the noble Baroness, Lady Boycott, who is unfortunately unable to be with us this afternoon. I am grateful to the noble Lord, Lord Whitty, who also, sadly, cannot be here this afternoon, for adding his name to the amendments, along with my own. The main purpose of these amendments is twofold. First, they would embed consideration of climate and environmental targets in the Bill, to ensure that they are factored into the decision-making of public authorities when designing and deciding to award subsidies. Secondly, they would ensure that subsidies align with, or at least are not contrary to, our net-zero and environmental targets.
COP president Alok Sharma in a recent speech said that
“inaction or delayed action on climate will create immense risks and costs.”
He went on to highlight the economic opportunities for businesses of acting now and stated that
“my absolute focus for the UK Presidency year is delivery.”
The Government’s own Net Zero Strategy states:
“Our goal is to go even further to embed net zero across government activity. This will mean that government takes net zero into account when taking decisions.”
It further calls for
“a whole system approach to tackling climate change”,
which includes:
“Embedding net zero in a wider range of decision-making levers.”
I have purposely used the Government’s own words.
The fact is that if we do not ensure that alignment with our climate and environmental goals is embedded into new policy frameworks, such as our new subsidy control regime, we risk missing a key opportunity for delivering climate action. Delivery will not happen effectively and quickly unless both net-zero and nature considerations—because nature is inextricably linked to the climate crisis—are consistently woven into the fabric of all that Governments do at every tier of decision-making; not just centrally but devolved Administrations and regional and local government. The Government said in their response to the consultation on the Bill that
“public authorities will be able to take subsidy decisions that facilitate strategic interventions to support the UK’s economic recovery and deliver government priorities such as levelling up and achieving net zero.”
I welcome the Government’s recognition that subsidies can be a valuable way of supporting the achievement of the UK’s net-zero targets. However, there is nothing in the Bill to ensure that subsidies are directed towards interventions that can help to achieve our net-zero and environmental goals or, even worse, to avoid a situation in which subsidies that are contrary to or do not align with these goals could be introduced. Unfortunately, not all public authorities are as focused on delivering net zero as others—the Cumbrian coal mine comes to mind. Without this strategic direction, opportunities could easily be missed. I hope the Minister will agree that we need to include our net-zero and environmental goals within the Schedule 1 principles as laid out in Amendments 9 and 10 from the noble Baroness, Lady Boycott, which would guide decision-making on subsidies.
The Government did, in fact, consider including a specific net-zero principle but decided against this, which is a real shame because including consideration of net zero would not have precluded the achievement of wider policy objectives. It simply provides that when granting any subsidies, not just those related to energy and environment, public authorities must consider whether they align with our net-zero and environmental goals. This would not compromise the Government’s flexible, proportionate approach to the new regime.
It is important that the broader principles in Schedule 1, which apply to all subsidies, provide clear direction to the hundreds of public bodies that will use these rules and embed the consideration of net-zero and environmental goals. This would show strategic direction and leadership from the Government, and support the COP president’s aims for a clear focus on delivery. With the urgency of the challenge ahead of us—to take action to reduce emissions and restore our depleted nature—we cannot afford to miss opportunities such as this to help to deliver it. I hope that the Minister will consider embedding consideration of climate and environmental goals in the Bill and look sympathetically at Amendments 9 and 10.
Amendments 12 and 29 would provide simple clarifications aimed at ensuring that the law stated that the grant of subsidies did not release a beneficiary from its other legal duties in relation to environmental protection. Amendment 12 would clarify, within the principles, that all subsidies should be subject to that prohibition, while Amendment 29 would provide for a stand-alone clause within the general prohibitions with the same effect. We are saying that, without the amendments, there may be perverse incentives and the “polluter pays” principle could well be lost. I look forward to a response from the Minister on those amendments.
I support the amendments in this group in the name of the noble Lord, Lord McNicol of West Kilbride, and the noble Baroness, Lady Jones of Moulsecoomb, which are very much in the same vein as those of the noble Baroness, Lady Boycott.
I want to mention Amendment 33 in the name of the noble Baroness, Lady Jones, about subsidies for fossil fuels. The Minister and I have frequent disagreements on what defines a subsidy, so I am pleased that this amendment has been tabled. I support it because I hope it will give the Minister an opportunity to clarify, first, whether taxpayers’ money should be used to support exploration for new oil and gas fields, and secondly—there are many subsidies but I will restrict myself to two questions—whether the Government should in fairness continue to allow the decommissioning costs of fossil fuels in the North Sea to be met by the UK taxpayer. Oil companies at the moment are pocketing vast sums of pure profit—eye-watering and fairly obscene profits—and we are giving them money on top of that. The Minister will have his opportunity to answer that—I hope he will.
I also welcome the Motion by the noble Baroness, Lady Jones, that Clause 51 not stand part of the Bill, which is a probing amendment. I, too, want to know why nuclear energy is excluded from the energy and environment principles in the Bill; there seems to be little rationale for doing so.
Baroness Hayman (CB)
My Lords, I declare my interests as set out in the register, particularly as co-chair of Peers for the Planet. I am grateful for the opportunity to speak to this suite of amendments dealing with climate change and environmental issues. I particularly support Amendments 9, 10, 12 and 29, which have just been so ably introduced by the noble Baroness, Lady Sheehan, and are in the name of my noble friend Lady Boycott, who I know is deeply disappointed not to be able to be here. I did not manage to get my name on the amendments but I am here, so perhaps I can say a few words about the general tenor of this group.
Lord Purvis of Tweed (LD)
My Lords, if I speak briefly now, I need not intervene on the Minister. Relating to electricity and energy, having had a second weekend without electricity in the Scottish borders as a result of the storm, I may say that moving towards a more sustainable and reliable network is a key consideration for many people in the north of England and the Scottish borders. The Minister led the Statement on this issue, and I know that it is an important issue for him, but we are still vulnerable in this country.
It is a pleasure to follow the noble Baroness. Before I ask the Minister my question, it is worth putting on record that we are already a number of weeks behind member states of the European Union, which has now integrated within the subsidy scheme state aid for climate, environmental protection and energy. Whatever we secure as a result of any new scheme, we will be playing catch-up. It would be most interesting to know whether companies in Northern Ireland can now utilise the new scheme from the European Union within the areas of goods and electricity provision.
My questions to the Minister relate to Clause 51. The noble Baroness, Lady Jones of Moulsecoomb, referenced nuclear. I am happy if the Minister wants to write to me on these points. First, how will our approach on supporting nuclear power for both our domestic consumption and exporting technologies, which we will soon see in the Nuclear Energy (Financing) Bill that is going through Parliament, interact with this legislation? I understand that the Government’s proposal for funding nuclear is to make its funding model more akin to how we fund our railways and our regulated asset base. How will the regulated asset base for private sector companies, which will be able to use it, interact with the subsidy principles? We could see all the work we are doing here become completely irrelevant if private sector companies can use a regulated asset-based system. Can the Minister explain how they will interact? Does the regulated asset base fall into scope within the Bill?
Secondly, as I understand it, the Government, through small modular reactor funding, have already provided £210 million to Rolls-Royce as part of supporting small modular reactors. However, that is for export. Rolls-Royce is very keen to promote the fact that Qatar is interested in buying these technologies; a Minister who was in Qatar in recent months was saying how good that would be, with joint funding from a French company and an American company. My understanding is that support for export, unless it is WTO-approved or through export finance guarantees, is prohibited within this, so I would be grateful to know where that £210 million of small modular reactor funding fits. Is it a subsidy, or would the scheme supporting it be considered a subsidy? If the Minister could respond to those points, I would be grateful.
Lord Fox (LD)
My Lords, we have had a detailed debate. Before making a few comments—I emphasise “a few”—I return to the idea of having meetings. I recommend that perhaps the noble Baronesses, Lady Jones and Hayman, and others should all have separate meetings with the Minister. Then we can compare notes afterwards.
I find it interesting to read Schedule 2 because it refers to:
“Subsidies in relation to energy and environment”.
I am trying to think of any human activity that, strictly speaking, does not involve energy or the environment. Perhaps the Minister can suggest an activity that goes on which does not consume energy and/or affect the environment in one way or another, because that seems a false distinction. Many speakers have made the point that trying to put energy and the environment in a ghetto within Schedule 2 does not make any sense. Human activity, by its nature, is interacting with the planet at that level. It therefore seems clear that those activities pervade all elements of the legislation that we are talking about here.
Each of this suite of amendments—I have never heard a group of amendments called a “suite” before but it is nicer than “raft”, which I have always wondered about— seeks to address on a small scale, in its own way, the bigger point that speakers have made: these issues need to be at the centre of the Bill. I am not going to compare and contrast any of the amendments but I will pull out a point around Amendment 12 that is worth emphasising: supporting activity that can cause pollution. We have not heard much about that in these speeches, although I think my noble friend Lady Sheehan mentioned it. We have to be clear that if subsidies are there then they are not supporting pollution, which is another aspect of our environmental impact.
I reiterate—but without repeating—that we need a plan. Net zero is not an easy target. Whichever year we set for it, there is an awful lot to do; we need to find ways of developing technology that we do not even have yet. It is clear that subsidies will be a key element in delivering our response to net zero. However, the plans are not there to get us there. That is not my opinion; I take as my text the Climate Change Committee’s statement on its annual report to Parliament last year, showcasing the strategic blind spot that we keep coming back to:
“The Government has made historic climate promises in the past year, for which it deserves credit. However, it has been too slow to follow these with delivery. This defining year for the UK’s climate credentials has been marred by uncertainty and delay to a host of new climate strategies. Those that have emerged have too often missed the mark. With every month of inaction, it is harder for the UK to get on track”—
the point that my noble friend Lord Purvis was making. The committee says:
“An ambitious Heat and Buildings Strategy, that works for consumers, is urgently needed. Delayed plans on surface transport, aviation, hydrogen, biomass and food must be delivered. Plans for the power sector, industrial decarbonisation, the North Sea, peat and energy from waste must be strengthened. The … cross-cutting challenges of public engagement, fair funding and local delivery must be tackled.”
Subsidies are going to be a key way of making many of those issues happen—the Government sometimes use the phrase “pump priming”—but, instead of having a plan, the Government are settling back for what I can only describe as a free-for-all. It is clear that the amendments are trying to set out a structure where that free-for-all can be brought in and focused on something that matters to all of us every day.
Lord Callanan (Con)
I am grateful to all noble Lords who took part in this debate. The noble Baronesses, Lady Sheehan, Lady Hayman and Lady Jones, raising their favourite subject brought me a great sense of déjà vu—the feeling that I have been here before and will no doubt be here on many occasions in future. Nevertheless, it is important to highlight the crucial issues of our net-zero commitments, climate change and environmental protection.
Before I address the individual amendments, I will explain further the approach that we have taken in this Bill towards the vital subject of energy and environmental protections. As noble Lords are aware, the Subsidy Control Bill sets out a new approach that is tailored to the needs of the UK. Broadly, it addresses two objectives: first, to facilitate compliance with our international commitments, including the subsidy control provisions in the EU–UK Trade and Cooperation Agreement; and, secondly and perhaps more importantly, to ensure that markets in the UK function effectively and that we minimise the domestic distortive effects of subsidies.
However, in respect of energy and environmental objectives, it would be fair to say that our approach is slightly different. In this area, the UK’s existing commitments, regulations and practices are extensive and world-leading, from the Environment Act principles to support for Sizewell C and the clean heat grant. Given all this, I believe that we already have the right framework in place.
As a result, our primary objective in respect of the energy and environment principles is to fulfil our international obligations—specifically, to implement the provisions in the TCA. These are good, common-sense principles; it will not be a challenge for UK public authorities to comply with them. I am not trying to suggest that they have been included reluctantly or that they do not have this Government’s full endorsement, but, equally, we have not sought to introduce further requirements or extend the scope more widely than required because we believe that energy and environment rules in general should apply to all kinds of policy-making, regulation and funding, rather than having specific provisions just for one tool in the toolbox. This brings me to the question asked by the noble Baroness, Lady Jones, on why nuclear has been excluded from the principles set out in Schedule 2; I will come on to that in more detail.
I will start with Amendments 7 to 10, all of which would amend Schedule 1. I thank the noble Lords, Lord McNicol and Lord Whitty, and the noble Baronesses, Lady Sheehan, Lady Jones of Moulsecoomb, Lady Bennett of Manor Castle—I see that she is not with us—and Lady Boycott, for tabling and putting their names to the respective amendments.
Schedule 1 sets out the subsidy control principles that public authorities must consider for any subsidies that they award or subsidy schemes that they make. These common-sense principles will ensure that subsidies and schemes offer value for money while addressing important public policy objectives in the United Kingdom. Public authorities will need to consider the effects of subsidies in the round before awarding them. The areas currently listed under principle G are those that subsidies inherently affect: competition, investment and trade. Other negative effects should be considered for the purposes of principle G only in so far as they are relevant.
Net-zero and climate change considerations are not inherent to all subsidies. Placing additional emphasis on climate change in principle G, or adding an additional principle H, could lead to public authorities having to do bespoke, possibly onerous, assessments for every single subsidy awarded or subsidy scheme made, even when it has no meaningful impact on net-zero targets.
I turn now to Amendment 11 to Schedule 2. Schedule 2 sets out that energy and environment subsidies must aim at one of two objectives: first, delivering a secure, affordable and sustainable energy system and a well-functioning and competitive energy market; or, secondly, increasing the level of environmental protection compared with the level that would be achieved in the absence of that subsidy. I would have thought that the noble Baroness, Lady Jones, would support that. This amendment would add a third aim, specifying that subsidies in relation to energy and environment should incentivise the beneficiary to help to deliver the UK’s net-zero target.
As I have said—there is no disagreement among us here—I and the Government entirely agree that net zero is of critical importance. Indeed, the Government published their Net Zero Strategy last year. The Government have already announced new subsidy schemes that promote net-zero objectives, are compliant with the interim subsidy control regime and, of course, ensure good taxpayer value at the same time. These include schemes such as the clean heat grant, which will help consumers to overcome the high up-front costs of low-carbon heat and will build supply chains for low-carbon heat ahead of the introduction of regulations for existing buildings off the gas grid, which we will come to later in the decade.
However, I do not believe that it is necessary to add an additional aim in Schedule 2, principle A. Sustainability and environmental protection are explicitly mentioned in the principle already, and it is clear that progressing our net-zero priorities would fall into these categories. Adding a further requirement on all subsidies and schemes, on top of those existing principles and regardless of whether the subsidy or scheme has a specific net-zero aim or impact, is not necessary given the existing comprehensive set of regulatory requirements on public authorities. I have mentioned several of these already but they include the legally binding environmental targets in the Environment Act, for example. It could even disincentivise other valuable subsidies that improve environmental protections but would not have a direct net-zero component.
Lord Purvis of Tweed (LD)
The Minister and the Government have been consistent in saying that moves are unnecessary, specifically because of principle G, but principle G says that
“beneficial effects (in terms of achieving their specific policy objective) should outweigh any negative effects”.
The “beneficial effects” are the achieving of the “policy objective”, so if the policy objective has nothing whatever to do with sustainability—it could well be market support in one area—then only beneficial effects with regard to that “specific policy objective” will be taken into consideration. There will not necessarily be beneficial impacts on sustainability, net zero or climate because the beneficial effects are very narrowly defined under principle G. So the necessary element still stands because the Government have restricted beneficial effects only to those linked with the original policy objective.
Lord Callanan (Con)
I think we discussed this earlier. I am really not sure of the point the noble Lord is trying to make.
Amendments 12 and 29, tabled by the noble Baronesses, Lady Boycott and Lady Sheehan, and the noble Lord, Lord Whitty, would prevent subsidies that would relieve their beneficiaries from their liabilities as a polluter. Provision already exists in the Bill to protect the “polluter pays” principle for any subsidy in relation to energy and environment. Principle B in Schedule 2 sets this out explicitly:
“Subsidies in relation to energy and environment shall not relieve the beneficiary from liabilities arising from its responsibilities as a polluter under the law of England and Wales, Scotland or Northern Ireland.”
Clause 13(3)(b) ensures that a public authority
“must not make the scheme unless it is of the view that the subsidies provided for by the scheme will be consistent with those principles.”
As I have previously set out, it is right that the provisions in the “polluter pays” principle apply only where they are relevant. That principle has long-standing foundations in UK law—including, most recently, in the provisions of the Environment Act 2021, which I also covered earlier.
Amendment 33 would prohibit subsidies for fossil fuels, including those subsidies that fall within the definition used by the IMF for fossil fuel subsidies. This would include subsidies for fossil fuel development and for the construction of new unmitigated fossil fuel-powered electricity generation, either in the UK or abroad. The principles in Schedule 2 to the Bill will help ensure that energy and environment subsidies contribute to optimal outcomes for UK citizens, recognising the importance of a secure, affordable and sustainable energy system and increasing levels of environmental protection.
I am fully in agreement with the noble Baroness, Lady Sheehan, that inefficient fossil fuel subsidies encourage wasteful consumption, reduce our energy security, impede investment in clean energy sources and undermine efforts to deal with the threat of climate change. However, I cannot accept this amendment because unabated gas-fired generation currently plays a critical role in keeping Great Britain’s electricity system secure and stable. New-build gas generation capacity will continue to be needed to ensure security of supply until clean alternatives are deployable at scale.
Baroness Sheehan (LD)
I have a question for the Minister. We have a real problem with fuel poverty and the energy cost of living—indeed, the cost of living everywhere. Energy costs are so high, and they are going to get even higher come April. Does it not worry the Minister—and, through him, the Government —that Shell paid $1.8 billion in tax to Norway in 2020 but, over the same period, it received $99.1 million from our Government in the UK? In that year, the UK was the only country where Shell operates in which it did not pay tax, according to the company’s own annual report on payments to Governments. There is something very wrong here.
Lord Callanan (Con)
That is not a subject for today’s debate. I have no idea whether the figures produced by the noble Baroness are accurate, but we have had this debate many times. We are phasing out fossil fuel-required generation. We have one of the fastest deployable rates of renewables in the world. We have the largest offshore wind capacity in the world. I appreciate that the noble Baroness wants to go even faster but, unless she is standing here saying that we should turn the lights out tomorrow, even the Climate Change Committee accepts that we will need gas-fired generation in the years to come. This is a transition, not a revolution, so we will scale down our use of fossil fuels gradually but, in the short term, we will continue to need them.
Baroness Sheehan (LD)
I really must challenge the Minister on this. He knows that this is not a question of switching off the lights overnight. The Climate Change Committee has a well-worked-out plan for scaling down our use of fossil fuels. In that plan, we start to reduce our reliance on oil and gas to a point where the only oil and gas we have is mitigated by some form of abatement, in whatever form that may take, by 2050. The plan is not that we continue to use gas unabated until 2050—that just is not the case. It is very misleading to say that.
Lord Callanan (Con)
Indeed—[Interruption.] I will let the noble Baroness, Lady Jones, come in as well.
Baroness Jones of Moulsecoomb (GP)
We may have had this debate many times but the fact is that the Government do not listen. For example, the Government could have already reduced by a huge margin our reliance on fossil fuels and gas by helping people insulate their homes. They have given little bits here and little bits there, but they have not invested heavily. They could do more but they refuse to do so. I do not understand why. So, we are going to continue having these debates until the Government actually fulfil some of the promises they have made.
Lord Callanan (Con)
We will continue to have these debates: I just point the noble Baroness to the fact that we are spending £3.4 billion over the next few years on precisely the schemes that she mentions. By all means, argue that we should be spending even more, but it is just not true to say that we are not spending anything at all. We will continue to have these debates.
Going back to the points by the noble Baroness, Lady Sheehan, I think we are in danger of violently agreeing here. Of course, there has to be a transition and we have to reduce our reliance over time, but my point is and will remain that in the meantime, we still require unabated gas-fired generation unless she is proposing to turn the lights out, which I know she is not. Therefore, we are effectively agreeing. We could have a long and detailed debate about the scale of the transition and how we should progress the transition, but in essence we are saying the same things.
Lord Purvis of Tweed (LD)
Will the Minister address the points about how the regulated asset base will be considered—I understand his comments about that—and specifically about support for the small reactor scheme for Rolls-Royce?
Lord Callanan (Con)
The noble Lord makes some valid points on the RAB mechanism, which will be debated in full on the upcoming nuclear Bill, but I will write to him on the specific points, particularly about support for the SMR reactors he talked about. I point out that existing subsidy schemes are of course excluded from the Bill. No doubt he will want to ask what happens if we want to award a similar subsidy in the future.
In my view, the energy and environment principles provide helpful support to our energy, environmental and climate change ambitions, but they are not the main engine of those ambitions. Finally, to answer the other questions of the noble Baroness, Lady Jones, on community energy—not really a matter for the Bill—and the Government’s approach to net zero, I am very happy to follow that up and write to her with the details. We are fully in favour of community energy projects, but of course they have to pay their share of the costs towards the network, as all other projects do if they wish to be connected to the national grid. I will write to her with the details and follow up with the noble Lord, Lord Purvis, on SMRs and the basis of nuclear subsidies.
Lord Fox (LD)
There may be something to add to the letter. My noble friend Lord Purvis made a valid point about paragraph G of Schedule 1, to which the Minister feigned non comprendi. The point my noble friend was making is that the Minister had said there was no need to have an explicit environmental or energy benefit in the Bill because that was implicitly within everything. However, paragraph G absolutely says that unless something is a specific policy objective, it is not considered to be a beneficial effect, so that paragraph cancels out what the Minister said to the Committee. Some sense of resolving that tension would be helpful. That is something we can come back to because, if indeed paragraph G overrides other benefits, which it seems to do, it is even more important that environmental and energy issues are placed at the heart of the Bill.
Lord Callanan (Con)
I think if the objective is set then it is an overarching benefit, but I will be happy to confirm that to the noble Lord, Lord Purvis, and will copy the letter to the noble Lord, Lord Fox, as well. Once again, I will be very busy in my letter-writing activities for the next few days. With that, I hope noble Lords are satisfied—or, if not satisfied, content—with the answers that I have given and therefore, in compliance with that, that the noble Lord will feel able to withdraw the amendment at this stage.
Lord McNicol of West Kilbride (Lab)
I thank the Minister for his response, and I thank the noble Baronesses, Lady Jones, Lady Sheehan and Lady Hayman, for their comments. I am not quite sure how many of the four questions asked by the noble Baroness, Lady Jones, we got through; we might be coming back to some of them.
As expected, to be fair, the Minister said that he believes we have the right framework in place and there is no need to extend it. I had a different take on the discussions with the noble Lords, Lord Purvis and Lord Fox, about paragraph G. The Minister said that not all subsidies will be relevant to net zero. As the noble Lord, Lord Fox, pointed out earlier, many subsidies fit around the issue of energy and climate but, if we take the Minister at his word on that and a particular subsidy has no meaningful impact on climate or net zero, his argument was that it could cause an extra administrative burden on the authorities if they have to show that it is not relevant. However, if the subsidy had no relevance to the environment or to climate. it would be relatively straightforward for them to say so. My feeling was that that negated the argument that the Minister was making for not including Amendments 7 or 11 in the Bill.
I am still genuinely struggling to understand why it would be so difficult to include that commitment, because those are guiding principles. If we all agree that we need to move towards net zero, protecting the environment and delivering on the climate emergency, then this is an opportunity to put that language in the Bill—especially a Bill that is so relevant to the fact that historically either state aid or government decisions, which we have argued for many times, have supported industries that harm the environment, albeit for very good reasons.
I am sure we will come back to this issue but, with that I beg leave to withdraw the amendment.
House of Lords
Retirement of a Member: Lord Coe
The Lord Speaker (Lord McFall of Alcluith)
My Lords, I should like to notify the House of the retirement with effect from today of the noble Lord, Lord Coe, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I should like to thank the noble Lord for his much-valued service to the House.
Middle East: Human Rights
(2 years, 10 months ago)
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Baroness Anelay of St Johns
To ask Her Majesty’s Government what progress was made by the Foreign Secretary at her meeting with the foreign ministers of Saudi Arabia, Qatar, Oman, Bahrain, and Kuwait on 20 December 2021 on protecting and promoting human rights.
The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)
My Lords, on 20 December, the Foreign Secretary hosted her Gulf Cooperation Council counterparts. The meeting was primarily focused on foreign policy and trade and investment, and the full communiqué detailing the main discussion points has been published on GOV.UK. I can reassure all in this House that we regularly engage with our partners from the GCC and consistently underline the importance of respect for human rights. We continue to work closely with our allies to tackle any human rights concerns.
Baroness Anelay of St Johns (Con)
My Lords, a month before that meeting, the Foreign, Commonwealth and Development Office published its update on the human rights abuses about which it was concerned in Saudi Arabia. They include enforced disappearances, arbitrary detention and torture. Did the Foreign Secretary raise these issues with the Saudi Foreign Minister when she met him and with what results? If not, why not?
Lord Goldsmith of Richmond Park (Con)
My Lords, no aspect of our relationship with Saudi Arabia prevents us speaking frankly about human rights. Saudi Arabia remains an FCDO human rights priority country, particularly because of its use of the death penalty and restrictions on women’s rights, freedom of expression and religious freedom. We regularly raise concerns with the Saudi authorities through diplomatic channels, including through Ministers, our ambassador and the British embassy in Riyadh.
Lord Alton of Liverpool (CB)
My Lords, I want to underline the important question that the noble Baroness, Lady Anelay, has just asked the noble Lord. Will he return to the issue of capital punishment that he has just referred to and confirm that, since 2015, there have been over 600 executions? Although there has been a welcome reduction in recent years, did we raise that directly with the Saudi authorities and did we raise with them their obligations under Article 18 of the 1948 convention on human rights, the issue of freedom of religion or belief—comparing them perhaps with the much more favourable disposition of countries such as the UAE in implementing Article 18?
Lord Goldsmith of Richmond Park (Con)
My Lords, the full communiqué has been published on the government website but, in relation to the death penalty, in October last year my noble friend Lord Ahmad—in whose portfolio this sits—raised his concern regarding the use of the death penalty in the kingdom with Dr Awwad al-Awwad, president of the Saudi Human Rights Commission, inquiring specifically into the case of Abdullah al-Howaiti and Mohammed al-Faraj, both believed to be minors at the time of their crimes. He raised a range of other concerns as well.
Lord Collins of Highbury (Lab)
My Lords, at the time of the meeting, a number of human rights organisations wrote to the Foreign Secretary regarding Dr al-Singace, a human rights defender who is in prison in Bahrain. He has been there for over a decade and has been on hunger strike for over 190 days. Can the Minister tell us whether this case was raised and whether we are seeking his release after this horrendous period?
Lord Goldsmith of Richmond Park (Con)
My Lords, I assure the noble Lord that we continue to monitor and raise the case of Dr Abduljalil al-Singace as well as many others with the Bahraini Government and the relevant oversight bodies.
Lord Purvis of Tweed (LD)
My Lords, the International Relations Committee found that the Government were on the wrong side of international human rights law in not pausing arms sales to Saudi Arabia while the attacks in Yemen are carrying on. The Minister will know that the UN Secretary-General has condemned the Saudi-led coalition for the recent attack on 21 January that led to 91 civilians dying. This, together with the Houthi rebels who are recruiting child soldiers—primarily from Sudan—shows an escalation of the conflict in Yemen. This is the very wrong time to be cutting our support for women and children in Yemen. Will the Government now reverse this and ensure that those most at risk in Yemen are supported by the Government, rather than the floor being taken away from under them?
Lord Goldsmith of Richmond Park (Con)
As I said, we have a good, full and frank relationship with our Saudi Arabian allies. There are no issues that are off the table in our discussions with them. Saudi Arabia remains a human rights priority country within the FCDO, particularly because of the use of the death penalty. We will always raise concerns with the Saudi authorities when it is felt that we should do so.
Lord Howell of Guildford (Con)
My Lords, my noble friend Lady Anelay is entirely right to raise the question of promoting human rights. It is a great cause, but does the Minister agree that along with rights go responsibilities? Will he accept that if these countries are to join properly in the comity of nations and gain our respect, they not only have to improve their own human rights record but have to stand up internationally and vocally for the rule of law and speak out in flagrant breaches of the rule of law—particularly as we now see being proposed by President Putin around the borders of Ukraine?
Lord Goldsmith of Richmond Park (Con)
My Lords, the UK has always believed that reform will be the guarantor of longer-term stability in the region—that we are more likely to bring about change through engagement, dialogue and co-operation. However, of course my noble friend is absolutely right to say that with the rights enjoyed by these countries come enormous responsibilities.
Lord Anderson of Swansea (Lab)
My Lords, some of these states, in contrast with the UAE, have a very patchy record on human rights, particularly in respect of freedom of Christians. Does the Minister believe that gross human rights violations should render a state ineligible for membership of the UN Human Rights Council?
Lord Goldsmith of Richmond Park (Con)
My Lords, if we were to apply—honestly and rigorously—the same criteria, there would be very few members of the Human Rights Council remaining.
Lord Cormack (Con)
My Lords, my noble friend Lady Anelay asked a specific Question about whether these matters were raised in the meeting on 20 December. My noble friend the Minister gave a helpful but general answer and did not answer that specific question. Could he now do so?
Lord Goldsmith of Richmond Park (Con)
I am very pleased that my answer was helpful. I apologise if it was too general, but I am afraid that is the depth of my knowledge on an issue that does not normally sit within my portfolio.
Lord West of Spithead (Lab)
My Lords, some 20 years ago we signed a big contract with Qatar to get liquid natural gas from the North Dome oilfield and take it round to Milford Haven, and that contract was running well. Bearing in mind the current energy crisis and the need for gas, were there any discussions about that? It seems to have tailed away slightly. Where do we stand now on ensuring that provision of LNG?
Lord Goldsmith of Richmond Park (Con)
I am afraid I do not know if there were discussions in relation to access to gas in Qatar, but I will ensure that the noble Lord’s question is followed up in the Foreign Office.
Lord Singh of Wimbledon (CB)
My Lords, do any of the places visited allow those of other faiths, particularly non-Abrahamic faiths, to have their own places of worship and to practise their religion freely, as required under Article 18?
Lord Goldsmith of Richmond Park (Con)
My Lords, I may not have heard the beginning of the question correctly; I think it was about whether the countries visited permit the kind of religious freedom that the noble Lord rightly says should exist in all countries. If that was the question, the answer is no. There are any number of restrictions in place in countries across the region, including Saudi Arabia. In this country, we have always strongly supported the right to freedom of religion or belief across the region and indeed across the world.
Baroness Hussein-Ece (LD)
My Lords, my noble friend Lord Purvis asked specifically about Yemen and Saudi involvement, but I did not hear a clear response on that. Could the Minister comment on the escalation of the war and the humanitarian disaster in Yemen? Also, could he comment specifically on whether, in the discussions, Saudi Arabia is being asked why it is not allowing international organisations to deliver basic food and medicine to people who are starving and suffering in this terrible conflict?
Lord Goldsmith of Richmond Park (Con)
My Lords, to my knowledge, this issue was raised in discussions in Saudi Arabia, particularly in relation to ease of access and transport for delivering much-needed provisions in Yemen. I will encourage my colleague to follow up with a more detailed answer.
Lord Hannan of Kingsclere (Con)
My Lords, there is barely a country in the world with which we will not have some differences on domestic policy, but with Saudi Arabia this has spilled over into international affairs—in Yemen, with the kidnap of the former Lebanese leader and in the Khashoggi murder. Will my noble friend the Minister confirm that, in our relations with all GCC countries, we will stress the vital importance of the principles of national sovereignty, territorial jurisdiction and order among nations?
Lord Goldsmith of Richmond Park (Con)
My noble friend is exactly right, and that is very much the view of the British Government. There is no single formula for success or single model of government, particularly in a region with such distinct cultures and differing political systems. It is not for the UK or indeed other Governments outside the region to dictate how each country meets the aspirations of its people, but there are certain principles that we must—and do—continue to stand up for.
Intelligence: Russia
(2 years, 10 months ago)
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Lord Wallace of Saltaire
To ask Her Majesty’s Government what plans they have, if any, to introduce legislation “to provide the intelligence agencies with the tools they need to tackle the intelligence challenges posed by Russia”, as called for by the Intelligence and Security Committee in its the Annual Report for 2019-2021 (HC 877).
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am very pleased to confirm that, as announced in the Queen’s Speech, the Government are committed to bringing forward new legislation to counter state threats and ensure that our world-class security services and law enforcement agencies continue to have the tools that they need to tackle the evolving threat and any challenging or hostile activities by any state.
Lord Wallace of Saltaire (LD)
My Lords, in that case, where is the Bill? This is a question of priorities. We have a number of badly drafted, long Bills before the House at present, but this is a question of national security. It is two and a half years since the ISC Russia report was published and the Prime Minister has dragged his feet ever since. Can the Minister assure us that the links of the Russian elite to the UK, to which the report refers, and its links to political parties are not part of the cause of the delay, given the amount of Russian-origin money which has flowed into Conservative Party finances?
Baroness Williams of Trafford (Con)
I can absolutely assure the noble Lord of two things. The Bill will be state agnostic and linked to the actions of whichever state or actor is trying to perpetrate evil against this country; it will not be country specific. On the delay, this area of law is complex and some of this legislation has not been updated in over a century, so we must make sure that we both bring it up to date and future-proof it.
Lord Lancaster of Kimbolton (Con)
My Lords, I declare my interest as chairman of the Reserve Forces review 2030. Providing access to skills and tools was at the heart of the Question. The Reserve Forces review 2030 is all about trying to access civilian skills through the medium of the reserve to support the Government. Given the relationship between the intelligence agencies and defence intelligence, does my noble friend not think that, if we were better at this, we could use the reserve to provide the very skills we are calling for to counter the Russian threat?
Baroness Williams of Trafford (Con)
My noble friend homes in on a very important point, which is that we must use all the skills and tools in our armour to counteract whichever threat we are facing. That is why it is so important that this Bill comes forward to allow us to use those skills and tools.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, does the Minister think that President Putin is going to treat seriously any threats from Boris Johnson or Liz Truss, when we are continuing to give hundreds of Russian oligarchs golden visas to enable them to get British citizenship and, perhaps even eventually, membership of the House of Lords? Is this not a total farce?
Baroness Williams of Trafford (Con)
My Lords, in terms of people being a threat to this country, the noble Lord talked about, as I have often done, the funny money that might be swirling around—
Baroness Williams of Trafford (Con)
I think he kind of talked about both: visas and money coming into this country. He will know from legislation that I brought in previously that, through unexplained wealth orders and things like that, we are doing everything we can to stop the flow of illicit finance in this country. I cannot comment further on golden visas, except to say that we are very, very careful about the visas we issue and the people we let into this country.
Baroness Kramer (LD)
My Lords, speaking of legislation that has not appeared, will the Minister acknowledge, as other Ministers have, that the Bill providing for a public register of the beneficial owners of property in the UK has been ready to go for weeks but has not yet been introduced in this House? Will she also confirm that the intelligence services have no hope of dealing with what is known as the London laundromat until that Bill becomes law, when civic society across the globe and activists can assist the intelligence services in getting to the bottom of these chains of ownership that lead, in the end, to oligarchs and kleptocrats?
Baroness Williams of Trafford (Con)
The noble Baroness illustrates some of the complexities around state activity. She is absolutely right—I recall her being involved in the Bill—and the Government have made a start on this. We have things such as unexplained wealth orders in place, and we will be bringing forward legislation to deal with the various threats that are impeding the rule of law and our economy.
Lord Coaker (Lab)
My Lords, in the 2020 report the committee found that until recently, the Government had badly underestimated the response required to the Russian threat and were still playing catch-up. Shockingly, that same report also found that the UK was clearly a target, but that no one within government was prepared to take responsibility for the defence of the UK’s democratic processes. Therefore, can the Minister reassure the House that whatever legislation the Government are proposing will deal with those specific points, and that they will move quickly to deal with this and the other issues that noble Lords have raised today?
Baroness Williams of Trafford (Con)
I most certainly can reassure noble Lords that we will be looking at all legislative possibilities to deal with the various issues that the noble Lord, the noble Baroness and other noble Lords have raised today.
Baroness Ludford (LD)
The Foreign Secretary pledges “nowhere to hide” for Putin’s oligarchs, but they are “hiding in plain sight” in their London mansions. In 2018, the Commons Foreign Affairs Committee said that the London laundromat of corrupt, Kremlin-connected assets
“has implications for national security.”
That was nearly four years ago. Do we have to wait until its chairman, Tom Tugendhat, becomes Prime Minister, as he wants to do, before action is taken?
Baroness Williams of Trafford (Con)
As far as I am aware, there is no vacancy for the post of Prime Minister, but there is ongoing work to implement the recommendations as soon as practicable. I note at this stage that the majority of the recommendations do not actually need legislation, but we are getting on with them and great progress is being made.
Baroness Whitaker (Lab)
My Lords, might not the current threat from Russia be diminished if Ukraine could be persuaded to adopt a neutral stance like that of Finland?
Baroness Williams of Trafford (Con)
I do not think I would agree with that point, no.
Lord Campbell of Pittenweem (LD)
My Lords, have the Government ever considered the use of compulsory purchase orders when ownership of property is being deliberately concealed?
Baroness Williams of Trafford (Con)
The noble Lord makes an appealing point but the situation is far more complex than that. Particularly with the unexplained wealth orders legislation that I brought through a couple of years ago, it is not as easy as just compulsorily purchasing houses.
Lord West of Spithead (Lab)
My Lords, I declare an interest as the House of Lords member of the Intelligence and Security Committee. These reports are done in huge detail, with huge inputs from people who know a lot about this. Particularly in the case of the Russian report, it took a very long time for it even to be taken note of by the Prime Minister. Can the Minister ensure that reports such as that—other reports are on their way—are actioned rapidly and moved forward, rather than being effectively sidelined?
Baroness Williams of Trafford (Con)
I agree with the noble Lord’s point. Ongoing work is being done to implement the recommendations in the report, many of which do not need legislation. However, the noble Lord makes an absolutely valid point.
Lord Austin of Dudley (Non-Afl)
My Lords, the weekend papers were full of reports saying that the Government were threatening to sanction members of Putin’s inner circle if he went ahead and invaded Ukraine. However, given that he has invaded Crimea, assassinated his opponents here in the UK and looted Russia’s economy, thereby impoverishing the poor Russian citizens, why have the Government not considered doing this anyway?
Baroness Williams of Trafford (Con)
The noble Lord is absolutely right. I am not party to some of the discussions going on in the FCDO and elsewhere, but he highlights the point that we have a major problem with regard to the influence here.
Lord Young of Norwood Green (Lab)
My Lords, the reason why Putin and his ilk do not worry too much about economic sanctions is that much of their wealth is laundered over here. The Minister referred to the unexplained wealth orders legislation. Can she explain why there have been few, if any, successful prosecutions?
Baroness Williams of Trafford (Con)
There have been some, and as I have explained to the House, it is quite complex and sometimes these things are very difficult to secure. There is more work to be done.
NHS Dentistry
(2 years, 10 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government, further to Healthwatch England’s report What people have told us about NHS dentistry, published on 20 December 2021, what steps they are taking to address the issues faced by those attempting to access NHS dental care.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
Practices are currently prioritising patients based on clinical need, and a new activity threshold has been set at 85% to safely increase access. A one-off additional £50 million, recently secured for NHS dental services this financial year, will urgently give more people, including children and others who are vulnerable, access to vital dental care. We are working with the NHS, Health Education England and the British Dental Association to improve access through dental system reform.
Lord Hunt of Kings Heath (Lab)
My Lords, the £50 million one-off payment for 350,000 appointments is a drop in the ocean compared to the 38 million appointments that have been lost during Covid. The Healthwatch report shows that parents are having great difficulty accessing NHS dentistry for their children, who may be suffering pain and unable to eat, and we know about adults who are indulging in self-care because they cannot find an NHS dentist. When will the Government get to grips with this problem and develop a proper strategy for dealing with it?
Lord Kamall (Con)
As the noble Lord will know, anyone can have access to an NHS dentist—they do not have to be registered with the practice in question—and when they are unable to find a practice, they can ring 111 to get information. In addition, over 700 urgent dental care centres remain open across the country.
Baroness Benjamin (LD)
My Lords, dentistry is facing an unprecedented challenge. We will not overcome the enormous backlog of treatment and the rising wave of dental staff leaving the NHS unless dentists have a seat at the table and a voice when commissioning decisions are made which affect them and the millions of patients they treat, especially children, for whom tooth decay is the number one reason they are admitted to hospital. Will the Minister tell us whether and how dentists will be represented in the new integrated care systems?
Lord Kamall (Con)
I thank the noble Baroness for that question. Following the Bill there has been a debate about the integrated care system—both the integrated care boards, and who should be there as a right, and the integrated care partnership, which works with local authorities and others, including place-based organisations and primary care organisations. We hope that they will all have a voice via the ICP.
Baroness Gardner of Parkes (Con)
My Lords, is the Minister aware that so many of the major hospitals are now closing their dental facilities after hours? These facilities were for parents of children who suddenly develop pain—many children hide problems with their teeth until it is so painful that they cannot stand it anymore. It is not good enough: the hours that dentists are able to work and the fact that, on the whole, there is only one dentist per surgery, mean that, every time, they must wait at least six minutes after they have finished with a patient before they can even consider seeing the next one. If more of them could work together, something could be done about this limit on vacancy time—I have brought this up before. The dental people brought forward the idea that, if a certain type of oxygenator were provided, the other would not be needed. Can something more be done?
Lord Kamall (Con)
My noble friend raises a very important point. I am sure many people understand that, when we first became aware of Covid, one issue was that, by its very nature, dental care can generate aerosols from the mouth, which presented a specific risk for dental activity. Once more was understood about Covid and its airborne spread, practices reopened in 2020 and were asked to provide urgent dental care. In addition, we have opened 700 urgent dental care centres to help patients in urgent need. You can also call 111. We are also looking at the longer-term reform of dental practice, and are in conversation with the BDA and others.
Baroness Thornton (Lab)
My Lords, the target-based NHS system was already unfit for purpose before Covid-19 and is completely incompatible with providing safe and sustainable services to patients as we emerge from the pandemic. Does the Minister agree that dentistry and the state of people’s mouths is becoming a serious issue which shows health inequalities? We are heading towards people who cannot afford dentistry, and their children, having rotten teeth. This is what the Minister must acknowledge and build into the health Bill that is before the House now.
Lord Kamall (Con)
We are very concerned about the potential inequalities. NHS England and NHS Improvement are very mindful of the risks of widening health inequalities. That is why, in their guidance, they specifically ask dentists to focus on providing urgent treatment for vulnerable groups and children and to delay planned care. NHS England has provided a flexible commissioning toolkit to local commissioners to help focus the available capacity on those who need it most and to reduce oral health inequalities.
Lord Flight (Con)
My Lords, an important point arising today is the absence of dental care for children. This problem has worsened. What specific measures have the Government got in mind to accelerate dental care for children?
Lord Kamall (Con)
My noble friend raises a very important point. We have asked NHS dental practices to meet as many prioritised cases as is safely possible. They are currently prioritising urgent care for vulnerable groups, including children. We hope that the £15 million of additional funding that was recently announced will be targeted at those most in need, including children. If they cannot get access to urgent dental treatment, they can call 111 for assistance and look at the NHS website to identify an NHS dentist.
The Lord Bishop of Exeter
My Lords, the report of Healthwatch England states that, of all the areas in the country with lack of access to NHS dentistry,
“the worst affected is Devon, as there are currently no practices showing as taking on adult or child patients.”
Can the Minister assure the House that, as part of the Government’s levelling-up policy, rural communities in Devon and elsewhere will not be further disadvantaged and will have access to NHS dental services?
Lord Kamall (Con)
I am sure the right reverend Prelate will acknowledge that one of the things we have learned from Covid, the lockdown and its subsequent impact has been about the health inequalities that exist across the country. Both my right honourable friend the Secretary of State for Health and I believe strongly in tackling inequalities; that is one of the reasons why we are keen that this comes to the forefront of the forthcoming Health and Care Bill. But we acknowledge the inequalities and are working with the NHS and the BDA to address them.
Lord Brooke of Alverthorpe (Lab)
My Lords, is the Minister aware that, as a child of a working-class family in the 1940s, I was given a periodic free check on my teeth, as were all children alongside me at my school? Is it not a shame now, when we talk about inequalities and levelling up, that such a facility is not available for working-class children in this country? When will the Government, with their policy of levelling up, set out a programme that ensures an annual check on the teeth of all schoolchildren, regardless of their background?
Lord Kamall (Con)
I thank the noble Lord for that suggestion, which I will take back. The BDA, the NHS and the Department of Health and Social Care are well aware that we need to tackle a raft of health inequalities in this country, including in dental care. The Covid pandemic has highlighted some of those inequalities, and so we can focus on them.
Baroness Redfern (Con)
My Lords, I welcome the Government’s much-needed boost and the extra £50 million. I particularly welcome the allocation to my area, the north-east and Yorkshire, of over £9 million. One of the six aims of the national contract reform is regarding dentists. With the current contract, how will the Government set a date for the end of the UDA framework? When might it be rolled out to help with recruitment and retention of NHS dentists, as there is urgent need for reform?
Lord Kamall (Con)
We are looking at long-term reform and are in conversations with the BDA, especially around looking at the current UDA system and understanding its complexities. We have a number of different plans for dentistry, looking not only looking at its contracts but at recruitment and retention of people locally and from overseas, where it is ethical to do so.
Baroness Jolly (LD)
My Lords, at present, very few dentists in Cornwall take NHS patients at all. There is very poor public transport and travel distances to access a dentist are invariably more than 20 miles. When does the Minister anticipate patients in Cornwall—and in Devon, as we heard—being able to access NHS dentistry?
Lord Kamall (Con)
The briefing I have is that, if you are unable to access an NHS dentist, you should be able to access one at one of the 700 urgent dental care centres or ring 111 for advice. If that is not happening, I hope noble Lords will write to me, so I can look into it.
Covid-19: Antiviral Pills
(2 years, 10 months ago)
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Baroness Rawlings
To ask Her Majesty’s Government which, if any, antiviral pills for the treatment of COVID-19 they plan on making available for distribution in the United Kingdom.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
Me again. The UK Government have agreed deals to secure a total of nearly 500 million patient courses of the oral antiviral treatments molnupiravir and Paxlovid in our efforts to reduce the impact of Covid-19 across the UK. We were the first country in the world to begin rolling out oral antivirals in the community, which we are doing through a new national study called PANORAMIC and through Covid medicine delivery units for those at the highest risk of Covid-19.
Baroness Rawlings (Con)
My Lords, I thank the Minister for his useful Answer, as always. We are grateful to Kate Bingham and the Prime Minister for making the anti-Covid vaccinations available to all of us on the National Health Service. However, the Covid tests to travel abroad were only available privately. In answer to previous Questions and now, the Minister told us that HMG have bought the new antiviral pills, molnupiravir and Paxlovid. I just want to make sure, by asking the Minister, whether these pills will be available only on the National Health Service or privately.
Lord Kamall (Con)
At the moment, they are available to anyone in an at-risk group and unable to have a vaccine. In addition, we have started a new trial to get more data—called the PANORMIC trial—including anyone over 50 who has tested positive through a PCR test and anyone in an at-risk group between 18 and 49 who catches Covid. The difference between vaccinations and antivirals is that vaccinations are there to stop someone getting Covid, or to make sure that they do not suffer the worst symptoms, whereas antivirals are given to anyone who has tested positive.
Baroness Wheeler (Lab)
My Lords, we welcome the news over the weekend about high-risk patients getting the Paxlovid antiviral drug from 10 February through the NHS if they test positive. There are also very positive results about the Molnupiravir drug, which has already been rolled out to high-risk patients through the Oxford University study. The British Liver Trust, Kidney Care UK and Cystic Fibrosis Trust are leading urgent calls for people suffering with these very vulnerable conditions to sign up to take part in the on-going clinical trials, which are essential in gathering further evidence and information. What action are the Government taking to ensure that doctors and patients have the latest information about the drug and the trials and to combat the ill-informed and dangerous antiviral scepticism that we know will be forthcoming?
Lord Kamall (Con)
I thank the noble Baroness for her question and for making people aware of the PANORAMIC study. One of the things that we are trying to do is look at the communication programme. If we look at the antiviral taskforce, we are looking at a number of different communication channels. For example, tomorrow morning, I believe, I will be co-chairing a webinar with many black and minority ethnic groups and activists to see how we can roll out and get their support in rolling out to those communities. We are looking at a number of different channels and particularly working with a lot of the charities which specialise in things such as chronic kidney disease, liver disease—I have a long list of conditions, which I will not read out now.
Lord Scriven (LD)
Priority test kits are meant to have been sent to people with immune conditions, so that they get the antivirals within five days of having Covid symptoms. Tens of thousands of people have not got these priority tests and, as Leukaemia Care has said, patients have been sent round in circles having to make up to 20 phone calls to get the test kits. Why has this mess arisen and what are the Government doing to solve it as a matter of urgency?
Lord Kamall (Con)
I thank the noble Lord for making me aware of this. I was not aware of this. I was told test kits were available to anyone who was considered immunosuppressed or vulnerable in advance. Given what the noble Lord has said, it is important that I investigate and write to him.
Baroness Meacher (CB)
My Lords, I am not aware of any medication at all for the treatment of chronic fatigue as a result of Covid. What is the relevance of the recent research into the microscopic damage to the lungs caused by Covid? Are the Government funding any research into finding medications that could cure chronic fatigue?
Lord Kamall (Con)
One of the interesting things about having this role is the number of different stakeholders I speak to and all the wonderful research into vaccines and antivirals for different conditions. I am not aware of any current research into the condition that the noble Baroness refers to. However, just because I am not aware, does not mean it is not happening. I will find out and write to the noble Baroness.
Lord Ashton of Hyde (Con)
My Lords, there is plenty of time. I think one side could give way to the other.
Lord Boateng (Lab)
My Lords, the Government have long said that the problem with vaccines globally has been not supply but distribution. What proposals will the Government bring forward to illustrate how the antivirals will be distributed and supplied globally?
Lord Kamall (Con)
That is a very good question. Clearly the focus up until now has been on making sure that vaccines are distributed worldwide working with G7 and G20 partners. When we talk about health partnerships, one of the issues that many other countries raise with us is the supply of vaccines and local manufacture. To date, I am not aware of conversations about antivirals, but I will certainly look into that.
Lord Geddes (Con)
My Lords, I am not quite certain whether my noble friend answered my noble friend Lady Rawlings’s question as to whether these antiviral pills can be purchased. He mentioned that they would be available for the vulnerable, but what about the purchase element?
Lord Kamall (Con)
I am afraid I do not know the answer to that, but I will write to both my noble friends.
Lord Bethell (Con)
My Lords, antivirals have shown their efficacy against HIV, hepatitis C, influenza, and now, thanks to the Eddie Gray Antivirals Taskforce, against Covid—but they work only if they attack the disease at the very earliest stage, often before symptoms even manifest themselves. We are going to see a great investment in antivirals, so what steps is the NHS taking to adapt to this new form of medicine distribution and to get antivirals into the hands of patients at the earliest possible stage? Five days simply is not early enough.
Lord Kamall (Con)
I thank my noble friend for all the work that he put in during his time as the relevant Minister in pushing the Antiviral Taskforce and ensuring the rollout of these antivirals. Since December, patients who are eligible and receive a positive PCR result are referred for treatment into a Covid medicines delivery unit. In addition, the UK Health Security Agency has sent PCR tests to around 1.3 million patients who are eligible for antivirals—bearing in mind what the noble Lord, Lord Scriven, said, which I need to look into. We are also working with the devolved Administrations to look at whether the NHS could deploy antivirals to a wider group of patients, with an emphasis on rapid identification and treatment, and assuming that we see positive results from the Panoramic trial.
The Earl of Clancarty (CB)
My Lords, following on from my noble friend Lady Meacher’s question, what help is to be given to the estimated one million-plus people in the UK with long Covid, in terms of both rehabilitation and financial support? This is a major concern.
Lord Kamall (Con)
The noble Earl will be aware, given all the news stories around it, that many people will be concerned about the effects of long Covid. I know there have been studies and interesting stories in the press about the long-term impact. As I said to the noble Baroness, I will find out what is being done in detail and write to her.
Lord Young of Norwood Green (Lab)
My Lords, for the Minister’s information, a trial is currently going on using xenon gas and MRI scans, which is looking particularly at the damage to lungs as a result of long Covid. It might be useful for him to get his officials to advise him on this.
Lord Kamall (Con)
I thank the noble Lord. Maybe next time I get a question like that I will ask the Lord Speaker whether I could delegate the answer to him.
Cultural Objects (Protection from Seizure) Bill
Monday 31st January 2022
(2 years, 10 months ago)
Lords ChamberRead Full debate Cultural Objects (Protection from Seizure) Act 2022 View all Cultural Objects (Protection from Seizure) Act 2022 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 28 January 2022 - (28 Jan 2022)
Motor Vehicles (Compulsory Insurance) Bill
Monday 31st January 2022
(2 years, 10 months ago)
Lords ChamberRead Full debate Motor Vehicles (Compulsory Insurance) Act 2022 View all Motor Vehicles (Compulsory Insurance) Act 2022 Debates Read Hansard Text
Economic Crime: Planned Government Bill
(2 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Fox (LD)
My Lords, when this Question was put in the Commons last week, the Conservative MP John Penrose said:
“The well of excuses after three or four years of promising this piece of legislation or its related pieces has now run dry. This legislation is essential for the credibility of this country and this Government”.—[Official Report, Commons, 26/1/22; col. 1008.]
I agree. Does the Minister agree with his colleague in the Commons and, if so, when will this legislation be brought forward?
Lord Callanan (Con)
My Lords, as the noble Lord is aware, I cannot give him a timescale for this. As the Prime Minister said last week, we remain committed to this legislation. We have already carried out pre-legislative scrutiny on it and we will legislate when parliamentary time allows.
Baroness Chapman of Darlington (Lab)
My Lords, the Government have long promised a full public register of beneficial ownership, alongside a comprehensive set of reforms to Companies House. Reforms are being made, but the pace is slow and the level of ambition is low. If the Government truly want to crack down on fraud and other forms of economic crime, why have these work streams been allowed to move at such glacial pace? If the noble Lord, Lord Agnew, was not able to secure progress from within, why should we believe other Ministers when they say that this issue is being treated with urgency?
Lord Callanan (Con)
Well, the issue is being treated with urgency. The Treasury is undertaking a number of different anti-money laundering pieces of work. We have already commenced the reforms required in Companies House. We will spend £12 million in 2023-24 and 2024-25 on economic crime reforms and £63 million in a spending review for Companies House reform. As the Prime Minister said, we are committed to making progress on this urgent and essential legislation, and we will do so when parliamentary time allows.
Lord Callanan (Con)
It is an important matter; it is one of many important matters on the Government’s agenda; and, when parliamentary time allows, we will legislate for it.
Lord Wallace of Saltaire (LD)
The draft legislation over these entities is quite closely linked to this. Perhaps the Minister can tell us whether that will be wrapped up in an economic crime Bill when it comes, or whether it will be a separate Bill. Perhaps at the same time he could tell us what the relationship is with the overseas territories on the beneficial ownership of these properties. A great many of them are owned by companies based in the British Virgin Islands or other overseas territories. They are sovereign parts of the UK. They seem to have all the benefits of British sovereignty but none of the responsibilities. Are the Government going to ensure that the secrecy of our overseas territories on financial matters is also covered in these Bills?
Lord Callanan (Con)
Indeed, the register of overseas entities Bill is currently tied up in the economic crime Bill, which we hope to make progress on as quickly as possible. However, I do not want to rule out any alternative legislative routes that might present themselves. As the noble Lord will be aware, it has gone through pre-legislative scrutiny and was well received by the committee that looked at it. We have incorporated some of the suggestions that were made. Of course, I cannot commit to what may, or may not, be in Her Majesty’s speech, but clearly a key element of taking forward this work is liaising closely with the overseas territories, which we will do.
Lord Rooker (Lab)
Will the Bill, when it arrives, fulfil the commitments that David Cameron made in his seminal speech in Singapore?
Lord Callanan (Con)
I cannot give the noble Lord a commitment about when a Bill might arrive. I also cannot give a commitment about what might be in it when it does arrive.
Lord Stevenson of Balmacara (Lab)
One of the key recommendations of the recent Joint Committee on the Online Safety Bill was that scams and economic crimes on the internet should be in scope of the revised Bill when it comes forward. We obviously await the Government’s response to that, but does this not give the Government an opportunity of a double win? Either Bill would do, but the issue has to be addressed.
Lord Callanan (Con)
There are indeed a number of positive elements to legislating on this issue. One of them is the issue highlighted by the noble Lord. However, we are again dealing with hypotheticals: something that may happen in good time. As I keep saying, we are committed to pursuing this legislation, but I am afraid I am going to sound a bit like a broken record when I say I cannot give a commitment at this stage to noble Lords on when we might be able to do it.
Lord Purvis of Tweed (LD)
The latest full accounts of Aquind Ltd give its directors as Mr K Glukhovskoy and Mr A Temerko. Four years ago, the Minister was a member of the board and at that time it had a controlling entity in the British Virgin Islands. It now has a controlling entity in Luxembourg. The last set of accounts showed a loss of more than £3 million and it paid no tax, yet it was able to find £213,000 for donations to the Conservative Party. Will the Government’s measures, which they say are urgent, also address the source of the wealth of controlling entities registered in the Virgin Islands—or, indeed, Luxembourg?
Lord Vaux of Harrowden (CB)
My Lords, it seems that this Bill will be some time in coming, but surely there are things we can do more quickly. For example, the Companies Act 2006 sets out clearly what information is required on directors and shareholders. Is it actually necessary to legislate for Companies House to verify that information? It may not be able to refuse to register the information, but there is nothing to stop it flagging the fact that the information is unverified.
Lord Callanan (Con)
I am afraid that it is necessary for primary legislation to enact the reforms of Companies House. This is an area for which I am responsible, and I work closely with Companies House on it. I get a steady flow of complaints from noble Lords and from Members of Parliament about abuses of the Companies House register. There is a certain amount that we can do with the funding that I announced in terms of reforms, but the primary reforms require primary legislation.
Lord Forsyth of Drumlean (Con)
My Lords, will this Bill perhaps offer a remedy to ensure that when political parties have had donations from criminals who are fugitives from justice—such as Mr Michael Brown, who made a substantial donation to the Liberal Party—that money will be returned?
Lord Callanan (Con)
I thank my noble friend for that question. As he was straying on to the issue of party-political donations, I noticed groans from the Liberal Democrat Benches. I think that is evidence that they can dish it out but are not so keen on taking it.
Lord Pannick (CB)
My Lords, does the Minister agree that the Government’s inability to recover the billions of pounds obtained by fraudsters from Covid business plans, as highlighted by the noble Lord, Lord Agnew, in his resignation speech last week, demonstrates the vital need for urgent legislative reform?
Lord Callanan (Con)
The issues are not necessarily related. We are continuing to pursue many of the frauds that the noble Lord referred to. I can give the House some examples. The Insolvency Service has already achieved 86 director disqualifications, 39 bankruptcy restrictions have been imposed, and 13 live companies have been wound up in the public interest. It has also identified 947 further director disqualification and 46 criminal cases for investigation, all of which contain an element of bounce-back loans scheme abuses. That scheme was put in place in response to a global pandemic at a very rapid pace, and I think all noble Lords can agree that it succeeded in saving many businesses and many hundreds of thousands of jobs in this country. However, we will not tolerate any abuses of the scheme, and we will continue to pursue people who are fraudulently benefiting from it.
Baroness Bennett of Manor Castle (GP)
My Lords, there is clearly a problem of international confidence in the UK’s financial governance system. Without targeting any particular party, are the Government considering controls on financial donations to all political parties and candidates, as a way of restoring international confidence?
Lord Callanan (Con)
I thought that I had come to answer questions on an economic crime Bill, but I see that we are getting into party-political donations again. That is not a matter for which I am, or my department is, responsible, so I am unable to furnish the noble Baroness with a response to her question.
The Lord Bishop of Durham
My Lords, those who decide to perpetrate economic crime are apparently targeted, swift and very bright about how they do it. I read the Statement and it mentions the Home Office, the Treasury and BEIS. Is it not time for more targeted, thought-through, quick action by government, rather than action that is divided across too many departments?
Lord Callanan (Con)
All departments are working together to try to combat this menace, and there are a number of different elements to that. Obviously, BEIS’s responsibilities, in terms of Companies House and the register of beneficial owners, are one aspect—but of course there are also tax elements, which are the responsibility of the Treasury, and there are Home Office enforcement matters as well, in terms of criminal liability. So it is not a question of which department looks after this: an enormous amount of cross-departmental co-operation goes on to try to combat it.
Health and Care Bill
Monday 31st January 2022
(2 years, 10 months ago)
Lords ChamberRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-VII Seventh marshalled list for Committee - (27 Jan 2022)
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, we come to Amendment 213A. I inform the House that the noble Baronesses, Lady Brinton and Lady Harris of Richmond, will be taking part remotely.
Amendment 213A
Lord Blencathra
“Health service procurement and supply chains: genocide convention obligations
(1) Regulations whether made under section 70 or otherwise may, in particular, make provision for the purposes of ensuring that procurement of all goods and services for the purposes of the health service in England is consistent with the United Kingdom's obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.(2) For the purposes of subsection (1), procurement is not consistent if a Minister of the Crown has assessed that there is a serious risk of genocide in the sourcing region.(3) A Minister of the Crown must make an assessment as to whether there is serious risk if the chair of a relevant select committee of either House of Parliament requests one, and must complete such assessment within two months.”
Lord Blencathra (Con)
My Lords, I apologise for my enthusiasm to get stuck into this vital amendment. I will speak to Amendment 213A in my name and that of my noble friend Lady Hodgson of Abinger, the noble Baroness, Lady Kennedy of The Shaws and the noble Lord, Lord Alton of Liverpool, whom I also consider to be a noble friend.
Allow me to begin by stating the obvious: UK taxpayers do not want to be complicit in genocide. It feels strange that this still needs to be said in 2022, 73 years after the genocide convention was agreed and nearly 80 years after the world became aware of the abominations of Auschwitz. Yet here we are in the age of ESG and corporate social responsibility, when the UK boasts of leading the world in the fight against modern slavery, and what do we find? We find hundreds of millions in public money poured into the pockets of companies profiting from Uighur forced labour; hundreds of millions of pounds poured into a region that our closest ally, the United States, has identified as the site of an ongoing genocide—an area so tainted with forced labour that President Biden has just signed into law the Uyghur Forced Labor Prevention Act, banning all imports from Xinjiang province unless it can be proven that they are slavery-free.
Those wondering why this Bill and why now have the answer. Credible reports have demonstrated that our existing procurement policy has been insufficient to prevent the Government spending hundreds of millions on slave-made PPE. With noble Lords’ permission, I will address a concern with the amendment head on. I would normally favour this sort of regulatory reform to apply across all government departments and would therefore look askance at focusing on just one department solely, as I am today. However, health is a special case, especially during the current pandemic. According to its modern slavery statement from 2021, the first year that the department has produced any such statement, the DHSC procured 280 regular non-Covid-19 contracts, but how many contracts did it produce for Covid? The answer is 708—708 contracts to address the pandemic, with a heavy preponderance of contracts being awarded to China.
I hope that noble Lords will permit me a brief digression to note that the Government revealed in reply to a recent Parliamentary Question that a billion lateral flow tests were procured from China despite some local production capacity. Why we would eschew British business in favour of companies in China, with all the attendant human rights risks, is beyond me.
Back to the point of his amendment: how many of those 708 Covid contracts went to Xinjiang-based companies? We simply do not know. What did the DHSC have to say about PPE widely reported to have been made by Uighur slaves? It said:
“This statement does not cover the Vaccines Taskforce (co-owned by BEIS), personal protective equipment (PPE) or UKHSA (formerly Public Health England (PHE) and Test and Trace) contracts.”
Those 708 contracts excluded a huge variety of other contracts by different organisations of our Department of Health and associated bodies.
Frankly, that is not good enough. If our laws do not prevent investment in modern slave-traders then, simply, our laws need to be changed. Noble Lords will recall debates surrounding genocide during the passage of the Trade Bill. Your Lordships voted by huge majorities in favour of allowing the High Court to make determinations of genocide, agreeing with the noble Lord, Lord Alton, and others that it was insufficient to outsource our genocide convention obligations to international courts, especially where those courts lack the power to hold back certain states, such as China. These efforts were resisted by the Government and the amendment before your Lordships today does not attempt to resurrect that campaign.
This brings me to the function of the amendment. Its first and core purpose is to apply a human rights threshold to government health procurement. If this new clause stood part of the Bill, it would be illegal for the Government to procure health service equipment from any regions in the world where they believe there to be
“a serious risk of genocide”.
That is a very high bar. It will be present only where the most serious human rights abuses are widespread. We would expect to see crimes against humanity, torture and mass enslavement in such areas.
The spirit of the Modern Slavery Act goes much further than this, discouraging business with companies which facilitate modern slavery offences. Modern slavery is much more widespread and common than genocide, affecting an estimated 40 million people worldwide. But the spirit of the law and the letter of the law are very different things. It is widely acknowledged that Section 54 of the Modern Slavery Act, which seeks to regulate supply chains, lacks teeth.
This amendment seeks to give it some more teeth in a limited and proportionate way. It applies only to government health procurement, allowing us to get our house in order first before pointing the finger at business. It applies only to the most serious human rights abuses of all, those which indicate a serious risk of genocide. Best of all, it leaves the assessment of “serious risk of genocide” to the Government and allows broad scope for the Government to define a process surrounding these risk assessments through regulations. In short, it is a very reasonable amendment. Candidly, while Uighurs in Xinjiang province are being forcibly sterilised, forced to work and detained in their millions, we ought to be doing a lot more. But this is a modest little amendment.
That brings me to the second purpose of the amendment, which is to move forward UK policy on genocide. We have heard ad nauseum from the Government that they have no view on genocide and will only use the word when “a competent court” has ruled on it. This policy has many problems, chief among them being that it makes genocide prevention impossible. The Committee may or may not be aware that our responsibilities under the genocide convention arise “at the instant” we become aware of a “serious risk” of genocide. Those quotes are direct from the International Court of Justice’s Bosnia v Serbia judgment in 2007. Let me repeat; it should happen at the very instant we become aware of a serious risk of genocide. That is when our convention obligations should apply. They do not arise when a court formally determines genocide, which usually happens many years after the genocide in question has ended. They arise at the instant we learn of a serious risk of genocide.
That simply means that the United Kingdom should be making regular assessments of serious risks of genocide and acting where appropriate. But we do not do this. This amendment before your Lordships’ Committee today puts that right and gives Parliament a limited role in ensuring that such assessments are performed in a timely manner, commensurate with the severity of the issue. It does not require the UK to make a formal determination of genocide, nor for the Government to behave like a court. It merely requires the Government to do a risk assessment—something we ought to be doing already.
I shall address the criticism that this is an “anti-China amendment”. This is false. The amendment makes no mention of China and would apply to every country. But I make no apology whatever for my motivation in bringing this amendment forward, which is to address President Xi Jinping’s heinous persecution of the Uighurs.
Finally, I was contacted the other day by the British Medical Association, which says:
“The BMA is deeply concerned about labour rights abuses in supply chains. Evidence shows that medical equipment, including PPE, has been procured from regions in which labour abuses are common, as this BMA report shows. The BMA notes the Uyghur Tribunal judgment, which found the PRC guilty of genocide, and the extensive procurement of NHS supplies from this region of China. This is deeply troubling; acquiring PPE from this region continues the systematic oppression of the Uyghurs and other minorities. The BMA believes all NHS supplies must be ethically sourced and this amendment would significantly reduce the risk of health service goods used in the UK being produced by individuals who are having their human rights abused.”
I hope I have demonstrated the need for this amendment. Having led the world in confronting modern slavery, the UK is falling behind—and we do not need to fall behind. The Covid pandemic has been a sorry period for many reasons, and making the UK taxpayer complicit in the persecution of Uighurs through PPE procurement is one of the sorriest. Let us take the opportunity to put that right: life-saving must not be dependent on life-taking. I beg to move.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Brinton (LD) [V]
My Lords, the noble Lord, Lord Blencathra, has outlined why there is an urgent need to address the NHS procurement rules in the light of possible genocide and other clear human rights abuses. We have a duty as a nation and as a society to ensure that goods used in our publicly owned NHS are not tainted with modern slavery or linked with behaviours that may lead to genocide.
This is not hypothetical. In November 2020, the noble Lord, Lord Alton—who I look forward to hearing speak shortly—asked the noble Lord, Lord Bethell, the then Health Minister, about Medwell Medical Products, which has a factory in Fenglin town, in Jiangxi province, noting that Uighur Muslims made up 25% of the workforce, despite being forced to live in separate accommodation from other workers. This was reported at the time by the excellent investigative paper, Byline Times. At the time, the noble Lord, Lord Bethel, said that the Government had not entered into an agreement directly with Medwell but that the central distribution warehouse in Daventry did have a record of receiving PPE masks produced by Medwell Medical Products. A spokesman for the Department of Health and Social Care said to Byline Times:
“We expect all suppliers to the NHS to follow the highest legal and ethical standards and proper due diligence is carried out for all Government contracts.”
This is an extraordinary response. Any contractor to the Government, even in an emergency such as a pandemic, must follow the commitments that the Government have given internationally to ensure that goods used by the publicly owned NHS are not tainted with human rights abuses. If companies such as Marks & Spencer can do it for their clothes supply chain, we can too.
In July 2020, the New York Times reported that Uighur Muslims—a minority subject to widespread persecution in China, including being put into detention camps where they are forced to undergo communist indoctrination—were being employed in the factories of medical suppliers under a specific Chinese Government labour programme. The Speaker of the US House of Representatives said at the time:
“We must shine a light on the inhumane practice of forced labor, hold the perpetrators accountable and stop this exploitation. And we must send a clear message to Beijing: these abuses must end now.”
As the noble Lord, Lord Blencathra, said, just over a year afterwards, in December 2021, the Americans passed the Uyghur Forced Labor Prevention Act into federal law.
UK Health Ministers’ responses in 2020 were, perhaps typically of this Government, aimed at prevarication and deflecting responsibility. This amendment does exactly what the noble Lord, Lord Blencathra, said, and what any self-respecting Government should do. It makes it absolutely plain that procurement must be
“consistent with the United Kingdom's obligations under the Convention on the Prevention and Punishment of the Crime of Genocide”,
and that
“procurement is not consistent if a Minister of the Crown has assessed that there is a serious risk of genocide in the sourcing region.”
The amendment also sets out conditions under which the risk should be investigated if the chair of a relevant Select Committee of either House of Parliament requests an assessment.
The amendment is very straightforward and clear. Perhaps the Minister can explain which parts of it he has problems with. It actually helps the Government, especially after the discoveries of the PPE provided by Medwell Medical Products and the supply chain—we suspect there are many other such companies as well. If the Minister is not minded to accept the amendment, can he explain to the House how NHS procurement can be protected from these human rights breaches, including possible genocide, in the future, and what guarantees there are that the department sees the supply chain details? I hope he will also agree to a meeting with the speakers in the debate on this amendment.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Harris of Richmond, is taking part remotely. I invite the noble Baroness to speak.
Baroness Harris of Richmond (LD) [V]
My Lords, the noble Lord, Lord Blencathra, has explained that Amendment 213A is an important statement of intent, if put in the Bill, by Parliament and the Government that, on behalf of the people of this country, we will take all the steps that we can to prevent procurement of goods made in places where there is evidence of likely genocide and where human rights abuses and modern slavery are thereby inevitable.
My noble friend Lady Brinton has just explained the problem of the sourcing of PPE from China and from companies that may be using Uighurs’ enforced labour. This is extremely worrying. Given that the Government have previously ignored an amendment passed in your Lordships’ House in the Trade Act 2021, despite rising international concerns about genocide against the Uighurs, it is vital that we remember the duty placed on nation states to use a deterrent effect.
In its judgment of 26 February 2007, in Bosnia and Herzegovina v Serbia and Montenegro, concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide, the International Court of Justice found at paragraph 431 that the duty to prevent arises
“at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed”,
as the noble Lord, Lord Blencathra, stated. The judgment continues:
“From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent … it is under a duty to make such use of these means as the circumstances permit.”
This amendment echoes that judgment by saying that all endeavours must be made to prevent and deter the procurement of goods from an area where genocide is suspected.
I am also concerned about legislation on slavery, also a scourge of our times, and hope that the Government will not rely on it as a possible alternative. As we have heard, the Modern Slavery Act 2015 merely requires companies with a turnover of £36 million or more to produce a modern slavery statement. The legislation does not prevent companies, or the Government themselves, procuring slave-made goods. The Foreign Prison-Made Goods Act 1897 makes some procurement illegal in certain narrow circumstances, but it is very old legislation and now considered largely defunct. I am grateful to a number of NGOs for their excellent briefings on this subject.
The former Foreign Secretary, Dominic Raab, said that torture “on an industrial scale” was being carried out in Xinjiang, even though his Government decided not to take action by creating import controls for Xinjiang. This Health and Care Bill offers the opportunity to return to the issue and to improve DHSC procurement policy.
Baroness Kennedy of The Shaws (Lab)
I, too, have my name to this amendment and support it, as I have previous amendments to other Bills relating to genocide. Health procurement is a very problematic area that warrants the special attention of Parliament. Not to put too fine a point on it, we will probably all have been wearing slave-made masks, even here. But it is a particular concern if great institutions such as our National Health Service are purchasing them in contravention of the standards we would like to set.
According to the Institute for Government, the UK has spent at least £15 billion on PPE since the onset of the pandemic. To put this into context, the normal annual spend on PPE is around £150 million. Perhaps we should have been putting aside more money for it. Anyway, many PPE contracts use products sourced from China. We do not know how much came from the Uyghur region but one news report alone alleged that we had purchased millions of pounds-worth of PPE from a company strongly suspected of using forced Uighur labour. That is just one report and I suspect we will see more investigations and more coming to light.
Even where the PPE is not manufactured in the Uyghur region, it may contain cotton, plastics and some other constituent parts that were. It has always surprised me that we do not have the import control regime that the United States has had for some time. The USA requires importers to document the source of products, not just the town and city but the particular factory, and to make tracking possible. Indeed, DNA tests can locate the source of the cotton, for example—the very region where it has come from.
What do we mean when we talk about serious risk of genocide? These are not just words. They represent the trigger for state responsibility under the genocide convention, as other speakers have mentioned. The International Court of Justice in 2007, in a judgment of a case involving Bosnia and Serbia, was crystal clear that state responsibility to prevent genocide arises
“at the instant that the State learns of, or should … have learned of … a serious risk”
of genocide. We have taken the words from that judgment. By incorporating those words into regulations, we are providing the Government and Parliament with a mechanism to take action to prevent genocide. This is something they lack in their current policy, which makes all actions dependent on a judgment from an international court—which, as we know, bears the Catch-22 that the very countries getting close to genocide or in the process of committing it do not usually want to play by the international rules of law.
Why should a serious risk of genocide be our procurement threshold? There will always be widespread human rights abuses with attendant supply chain risks for businesses where already there is talk of a possible genocide being in play. This should not represent an obstacle to the United Kingdom because since the Modern Slavey Act—which we passed here proudly as leading the world back in 2015—our aspirations have been to ensure that no business can sell slave-made goods into our market. A serious risk of genocide represents a higher threshold than any modern slavery offence, so the bar is set high here. The ban on procurement that a positive finding of serious risk would attract is proportionate. We need take these steps urgently. It is not, as others have said, just about China, but the amendment would, we hope, have an immediate effect in the Uyghur region.
As many noble Lords will know, last autumn the Uyghur Tribunal sat not very far from here, in Church House, led by a sort of jury of persons and the distinguished international lawyer Sir Geoffrey Nice QC. The tribunal concluded that China was, in fact, committing genocide in the Uyghur region and there was a violation of pre-emptory norms in international law that ought to require government action, by us. We are under a duty to act. If a genocide is in train or in progress, we have a duty to try to prevent it. That is what the convention says.
Although the amendment, rightly, does not identify any single country, I would expect it to have some immediate effect in China. The situation is urgent, and we are having this debate because 800,000 Uighurs are working to produce goods against their will. By some estimates, as many as 300,000 children are separated from their parents, which is really part of a process to take them away from the culture, religion and traditions of their people and to deracinate them. At any one time, up to 1 million are in re-education camps. There has also been shocking evidence of forcible sterilisation of Uighur women and many other heinous crimes. There really is an international legal obligation upon us. This House has expressed its views in previous votes and I hope we will eventually be joined by many noble Lords when this comes at some point to a vote.
We are looking at our supply chains and they are being seriously tainted by human rights abuses. We have taken proud steps, leading the world, in seeking to do something about these supply chains, and here is an opportunity to take it even further.
Lord Alton of Liverpool (CB)
My Lords, it is a great pleasure to support the noble Lord, Lord Blencathra, who so ably moved this amendment; to concur with the speeches just made by the noble Baronesses, Lady Kennedy of The Shaws, Lady Harris and Lady Brinton; and to associate myself with friends from across the House in respect of the work they have put in over many months to push to the top of the agenda the issue of honouring our duties under the 1948 convention on the crime of genocide. I have two things I would like to add. The first concerns our international treaty obligations, referred to a moment ago, what we are required to do from the moment we know that a genocide is under way, and how we must never utilise to our benefit slave labour in a state credibly accused of genocide. The second concerns the way in which the lack of transparency in our procurement policies has led to the improper use of public money.
The amendment is a logical extension of the debates on the genocide amendment, which, as the noble Lord, Lord Blencathra, said earlier, was passed by three-figure majorities in this House in an attempt to provide a mechanism in the Trade Act 2021 to evaluate when a genocide is or is not taking place. Many promises were made by the Government during that amendment’s many iterations, including the provision of an effective mechanism to determine what constitutes a genocide and to honour our obligations under the 1948 convention. Demonstrably, those promises have not been kept. Worse still, we have established the illusion of a procedure to examine and deal with this most odious and reprehensible of crimes. The fact that we cannot, under that procedure, even look at what is happening in Xinjiang with the Uighurs shows how inadequate it really is.
Can anyone doubt the seriousness of this issue, not least in the light of the pronouncement by the Foreign Secretary, Liz Truss, that a genocide is under way in Xinjiang; or the resolution passed by the House of Commons; or the December judgment just referred to of the Uyghur Tribunal; or the declaration of genocide by United States President Biden; and much more besides? Do we have any excuse, therefore, for not taking action?
The noble Lord, Lord Blencathra, referred to a report by the British Medical Association, which seems particularly pertinent in the context of this Health and Care Bill. It sent a letter on 26 January, which noted
“the shocking reports of human rights abuses, including torture, forced labour, political indoctrination, and reported forced sterilisation. Since then, the situation has developed in the most abhorrent manner and we”—
the BMA—
“issued a joint statement with the Academy of Medical Royal Colleges and other Royal Colleges in December”—
I repeat, December—
“urging the UK Government and international actors to exert pressure on the Chinese Government without delay.”
It goes on to refer to the independent tribunal, saying:
“It found beyond reasonable doubt that the People’s Republic of China … is guilty of genocide. The Tribunal determined that biological genocide is occurring through restriction of births by forced sterilisation and abortion, segregation of sexes within the detention centres, and forced matrimony and procreation between Uyghur women and Han men. Furthermore, mutilation and biological experiments take place in the detention centres.”
If anybody is in any doubt about the enormity of what is taking place, they should read some of the personal testimonies which were given to the Uighur tribunal. I sat through many of its hearings and found the whole process incredibly harrowing. Let us be clear that there will be amendment after amendment to every possible piece of legislation until the promise to hold to account those responsible for these most heinous crimes against humanity are actually honoured. So my first point is that continuing to source goods for the NHS from Xingang is clearly not consistent with the duties laid upon us in the convention on the crime of genocide.
Baroness Hodgson of Abinger (Con)
My Lords, I support this amendment, so ably moved by my noble friend Lord Blencathra and supported by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Alton. Noble Lords have already heard the well-versed and evidenced arguments put forward and, while the amendment does not specifically refer to China, there can be no doubt that the well-documented example of the horrific treatment of the Uighur people in Xinjiang province would fall under its scope.
We have all heard today about the hundreds of millions of pounds-worth of healthcare goods that have flooded into this country since the start of the pandemic, much of it sourced from China. We would expect our Government to make every effort to disentangle our supply chains from implication in these atrocities, so was any due diligence carried out throughout our procurement process? This amendment would correct that oversight if it was not.
I do not want to repeat everything that has already been said by others, but I want to highlight the importance of the risk-assessment aspect in proposed new subsection (3). I anticipate that the Minister will highlight the work already being done by government departments to weed out companies with slave labour in their supply chains. Perhaps sometimes they are being asked to perform an impossible task, because I understand that supply chains in the Uighur region of China are almost entirely opaque. It is suggested that the area is rife with systematic forced labour, that audits there are worthless and that workers live in fear and terror of telling the truth. Indeed, as we have already heard, the US Government have just passed legislation presuming that all imports from the region are tainted unless proven otherwise.
Surely, it is our responsibility, as a signatory to the genocide convention, to do all that we can to prevent genocide when there is a serious risk of it taking place. This amendment builds on the work that we have already done in this regard. We cannot continue business as usual with China or any other state that condones or supports genocide. I ask the Government to act urgently to ensure that our supply chains are not tainted by goods made with Uyghur forced labour. I ask Members on all sides of your Lordships’ House to join us and reassert our commitment to global human rights and to provide the protection against genocide, wherever it is needed, by supporting this amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, I too support the amendment of the noble Lord, Lord Blencathra. As we are really talking about procurement in the NHS, I should declare my interest as president of the Health Care Supply Association.
It is entirely reasonable to use NHS procurement rules in this way. The noble Earl knows that Clause 70 is intended to give wide discretion to Ministers to bring in a new procurement regime. I see no reason why this cannot be part of that regime.
I sometimes think the NHS operates in isolation from what is happening in the world, but it cannot operate in isolation from the terrible things that the noble Lord, Lord Blencathra, and other noble Lords have spoken about. I hope the noble Earl will be sympathetic.
Baroness Sugg (Con)
My Lords, I rise to speak briefly in support of this amendment and, in doing so, I apologise that I was not here at the Second Reading, although I have followed the progress of the Bill carefully.
Last Thursday at Oral Questions, in response I think to the noble Lord, Lord Rooker, the Minister spoke of the importance of examining the provenance of health equipment that comes to the UK. He said his department was working
“to ensure that it is not from regions where there is slave labour, or where the Muslim Uighurs are being persecuted by the Chinese Government.”—[Official Report, 27/1/22; col. 439.]
We must of course ensure that the products and equipment in our supply chain are ethically sourced. Last week, my noble friend acknowledged that we need to do more here, and this amendment gives us the opportunity to do just that. Noble Lords speaking before me clearly and comprehensively laid out why we should avoid procurement from such areas.
All UK government departments need to do more to look carefully at their supply chains, but we must start somewhere. The DHSC, with its scale of procurement, and the reports we have seen of the prevalence of Uighur forced labour in PPE and healthcare supply chains during the Covid-19 pandemic, seems to be the right place to start.
The issue of genocide has been subject to lengthy debate in your Lordships’ House, not least during the Trade Bill last year. While a form of compromise was reached, it is limited to countries with which we will be entering free trade agreements. That is not a solution for procurement for many of the countries with which the DHSC does business. Importantly, this amendment would create a process, a mechanism, through which the UK Government could be required to assess regions for “serious risk of genocide”, and indeed publish their assessment. That process is, so far, sadly lacking in this country.
The UK has a responsibility to do all it can to protect against human rights violations and genocide. We also have a responsibility to our NHS workers and those who use the health service to make sure that we give them ethically sourced products. As my noble friend Lord Blencathra said, UK taxpayers do not want to be part of genocide.
We need to see deeds, not words. This amendment will significantly reduce the likelihood that the Government will procure goods or services from regions where there is a serious risk of genocide. It will bring the UK a step closer to developing a comprehensive framework in responding to allegations of genocide, and will meaningfully engage its obligations to prohibit, prevent and punish perpetrators of genocide. It does so in a limited, proportionate, reasonable and modest way.
I hope the Government will properly consider this amendment, I look forward to hearing the Minister’s response, and I know that he will have heard support for it from all sides of your Lordships’ House.
Lord Rooker (Lab)
My Lords, the Government should embrace this amendment. I want to concentrate on the traceability argument of goods, and in particular cotton imports. Without good traceability, the genocide convention obligations cannot be met.
To date, I have had two very poor replies on cotton traceability from the noble Lord, Lord Grimstone of Boscobel, at Question Time on 21 October, and a Written Answer on 24 January. Of course, as has already been said, we are miles away from the policies of the United States Government, who have taken a proactive approach to imports from regions of China where we know human rights abuses take place. As has been said, on 23 December, President Biden signed the legislation into law.
It simply cannot be left to commercial companies to satisfy themselves. It is crucial to understand the geographic origins of products and conditions of production. The two things are intertwined and they both need to be dealt with. There has to be a robust methodology that is reliable even when working with partners that may be untrustworthy or unco-operative. The use of middlemen such as commodity traders and the practice of blending fibre from multiple sources create additional difficulty.
Traceability—both what is termed as upstream, starting at the farm, or downstream, to map products back to their origins—is currently used. However, full visibility of the supply chain using these methods is impossible, and especially so in restricted areas such as Xinjiang Uyghur Autonomous Region. It is just impossible to do in the normal way you would look at traceability. If the Minister is in doubt about this, his department should read the report from the Center for Strategic and International Studies of November last year entitled:
“New Approaches to Supply Chain Traceability (implications for Xinjiang and Beyond)”.
My conclusion from that is that paper-based traceability and supplier information is a non-starter for effective due diligence.
In addition, there is abundant evidence that the Chinese Communist Party, which owns China, actually launders Xinjiang cotton, either semi-finished or blended, into international supply chains. This is set out in considerable detail in the November 2021 paper by Laura T. Murphy of Sheffield Hallam University entitled:
“Laundering Cotton: How Xinjiang Cotton is Obscured in International Supply Chains”.
In 2019, it was established that 85% of Chinese cotton was from Xinjiang. That means that cotton from the Uyghur region of China accounts for 22%—a fifth—of cotton worldwide. What was once grown or reared retains details of its origins—in a way, this is the test. However, it takes more than a paper trail to identify as such. It requires forensic work; chemical, isotope and genetic tracing and other methods that I will not list here are all crucial.
I will give a good example. From 1,000 garment samples collected across the world in high-street fashion shops involving nearly 50 brands, Oritain Global Ltd detected that in Vietnam, Cambodia and Bangladesh, the cotton in the garments had a mixture from Xinjiang of between 6.5% and 25%. Chinese cotton was 41% consistent with Xinjiang. Some 10% of samples of products tested in the UK were consistent with Xinjiang cotton. The UK has a high rate of imports from Bangladesh, where 25% of the cotton was from Xinjiang. It is worth pointing out that India has zero consistency with Xinjiang; India has cleared out Chinese cotton fabrication.
As to the practicalities for the health service, in 2019, the UK imported furniture, bedding and mattresses from China to the tune of £2.3 billion and imported apparel and clothing accessories to the tune of £3.7 billion. Has the NHS used beds and mattresses containing cotton from China or from suppliers using connections with China or other countries known to have a mixture of Xinjiang cotton? Where did all the Nightingale equipment appear from so quickly? As I asked last week, without any warning, how much China cotton is involved in NHS uniforms and accessories? Others have mentioned face masks, but as I pointed out last Thursday, more nurses means more uniforms.
Has the NHS supply chain used Oritain’s element analysis to check, or is it just relying on suppliers’ paperwork to check what would be only part of the supply chain? Companies and Governments need a degree of independence in assessing traceability and to not rely on companies doing it themselves. Some of the supply chains are five or six levels removed, so they cannot possibly have faith in each level and know the details from manufacturers, middlemen, traders, and agents. With the best will in the world and good corporate responsibility, checking the paper trail of five, six or seven levels will not work.
As I said earlier, the way to do it is to work on the basis that a product that was once grown or reared holds signs of its origins, and today’s advanced technology can do it. The technology of element analysis used by Oritain claims that it can tell the difference between two tea estates with a dirt road between them—it is so good and effective. For those who want more, I suggest the long read in the Guardian of 16 September 2021, which is where I came across the use of the technology. I have since met with senior reps of Oritain Global Ltd to better brief myself. Modern forensic technologies must be used, as is now required in the USA. The United States is using these technologies. Why are they not being used in the UK? The NHS, as the largest employer in Europe, should have a leading role.
It is not normal for the origin of cotton to be stated on labels. Of those 1,000 products which I mentioned were checked by Oritain last year, only 3% had the information on the label and, as a warning, the higher quality a product which attracts higher prices is more likely to be consistent with Xinjiang than cheaper items, so you must be really careful what you are looking at. Non-disclosure is almost the norm and of those who do disclose there is a high percentage of non-compliance, so labels and paperwork are not the answer.
Technology is the answer, and the ball is in the Government’s court. The old-fashioned gentlemen’s agreements and systems we are used to will not work. Modern technology is thought to be 95% accurate in identifying where an item was grown or reared. Only with that degree of information can the NHS satisfy the convention obligations. Otherwise, it will not work. The Government ought to embrace the amendment and then the new technology.
Lord Polak (Con)
My Lords, I pay tribute to my noble friends Lord Blencathra and Lady Hodgson, the noble Lord, Lord Alton, and the noble Baroness, Lady Kennedy of The Shaws, for tabling this important amendment. My noble friend Lady Sugg referred to last Thursday. That was 27 January, when the world came together for Holocaust Memorial Day in memory of the millions murdered under Nazi persecution. Members in the other place stood up and pledged “Never forget, never again”, while we in your Lordships’ Chamber sadly did not find a way to mark the day. Today, I repeat that promise.
Since the start of the pandemic, it seems that millions of pounds-worth of healthcare equipment have been procured from Xinjiang, despite the reports of the appalling treatment of the Uighurs. Will the Minister tell us whether our pandemic response benefited from procured equipment exported from Xinjiang?
Baroness Chakrabarti (Lab)
My Lords, I congratulate the noble Lord, Lord Blencathra, the supporters of his amendment and everyone who has spoken in this debate. I am sure that the Minister will reflect before he replies on the significance of an amendment to a major piece of government legislation that has garnered such disparate support from across the House.
I am conscious that the NHS is something that everyone in the United Kingdom is very proud of. It is a source of genuine patriotism—and a patriotism that is neither militaristic nor xenophobic. We have sometimes fierce arguments about how it should be organised but fewer arguments about it being a wonderful thing. It is perhaps the greatest experiment in solidarity and collaboration in human history. It even has “national” in its title, which is good for patriotism yet it is more than national because, in truth, its proud history is one of a service built on the contributions of people who came to this country from all over the world. It is a model of healthcare admired by people from all over the world.
As I heard noble Lords from across the Chamber speaking in recent minutes, I was reminded of the contrast between the London Olympics and the Beijing Olympics. The latter was a great display of military strength, while the other was something a little more novel. I was proud to take part in the opening ceremony, and remember the nurses bouncing on NHS beds. It drew huge amusement from parts of the press but was a reminder of the example that Britain can offer the world.
The poor old noble Lord, Lord Ahmad of Wimbledon, often has to address this human rights-interested Chamber on difficult issues of international relations when they rub up against the instinct to protect human rights. It is a difficult equation for successive Governments of either stripe. However, here there is an opportunity, because the NHS is such a big customer. This Bill is about being an ethical provider of health services to our people. In parts, it is about being an ethical employer. Now we might aspire to be an ethical customer on the world stage as well.
Noble Lords have done better than I can to explain the morality behind this concern about the Uighurs, but my noble friend Lord Rooker offered the practical element to go alongside the moral arguments.
In closing, I say to the Minister before he answers that, if there are some technical concerns from those who advise him about the precise drafting of the amendment, these can no doubt be resolved. I feel sure that the noble Lord, Lord Blencathra, and his supporters—and those who support them—would no doubt work with the Minister to ensure that something that does the trick comes forward on Report. What a golden opportunity this is to set an example on how one can walk this tightrope between realism and human rights protection, and what a great thing it would be for this Committee to be able to achieve.
Baroness Walmsley (LD)
My Lords, a very compelling and, indeed, conclusive case has been made by the noble Lord, Lord Blencathra, and other speakers in favour of this amendment, and I hope the Government will accept it. I particularly commend the suggestion made by the noble Lord, Lord Rooker, that the answer is there for us in science. I have only one question, because I have no intention of repeating all the excellent comments that have been made. This morning, I went into the Bishops’ Bar and picked up a box of lateral flow tests. On the box was written, “Made in China”. Can the Minister explain what efforts have been made to ensure that noble Lords, in their attempt to protect others and themselves, are not unwittingly supporting forced labour and slavery?
Baroness Redfern (Con)
My Lords, I rise briefly to support this amendment, and I apologise for not attending Second Reading.
This amendment requires the Government to perform a risk assessment on whether there is a “serious risk of genocide” in a region from which it is sourcing—not to make a genocide determination. It is the UK’s obligation under international law, as a signatory to the genocide convention, to perform such a risk assessment. We have heard many harrowing stories, which we find so difficult even to believe. Uighur identity is being erased: future generations are lost through forced birth-prevention measures, and millions have been detained, tortured and violated in concentration camps.
The incorporation of this amendment would send a clear signal to both the Chinese authorities and the international community that the UK is committed to ridding its supply chains of forced labour, fulfilling its obligations under international law and protecting Uighur people from genocide. The amendment is an opportunity to offer the Uighur community accountability for genocide and crimes against humanity, and I support it.
Lord Collins of Highbury (Lab)
My Lords, like the noble Baroness, Lady Sugg, I apologise to the House for not participating on Second Reading. This is one of those rare opportunities for me to be at one with the noble Lord, Lord Blencathra. These opportunities do not arise very often, but today is one of them. Of course we were at one in the debate on the then Trade Bill, and I very much welcome the continued focus on this issue, particularly by the noble Lord, Lord Alton. On the Trade Bill, we—I with my amendment—attempted to ensure that we were not simply trapped by this very strict legal definition of genocide and that we focused on broader human rights issues, particularly when it comes to trade. We find the reason for that when we ask—I pick up the point made by the noble Lord, Lord Polak—“When does genocide start?” How does it start? It often starts by the use and harassment of words; it starts with words.
In quite a few debates I have given books a plug. I am currently reading “Chips” Channon’s diaries, which I would recommend. Reading his discussions during the 1938 crisis, I was struck by how anti-Semitism was just common talk, and how people were portraying Hitler as not that bad, as well as some of the incidents: Kristallnacht was “unfortunate”. It is those sorts of things that we really do need to focus on, and I hope that the Minister will be able to do that.
This debate is about probing government action; it is not simply saying, “This is our amendment: take it.” This is Committee stage, and I hope we can use it properly to probe the Government because, sadly, I often think—today of all days—that we do not have joined-up government and there is too often a gap between what the Government say and what they do. As the noble Lord, Lord Alton, said, only 12 months ago the Foreign Secretary, now Deputy Prime Minister—who knows what he will be tomorrow—announced business measures regarding human rights abuses in Xinjiang.
I have read the BMA’s briefing, which focused on ethically sourced procurement. That is what this debate is about. It is not just about the definition of genocide. The National Health Service, is, I think, the biggest single procurer of medical products in the world. It has huge opportunities to influence trade and price. We have debates about price and my noble friend Lord Hunt focuses on that a lot. With that leverage, the NHS has the opportunity to influence change. This debate is not about punishing China or the Chinese people but about influencing change and hoping that the Chinese Communist Party and the Chinese Government will think twice about some of the actions they are taking. I hope today we will have an opportunity to probe what the Government are doing, look at what they have said and see what they have done.
Following his announcement in January 2021, Domonic Raab went to the Human Rights Council. There he said:
“The UK will live up to our responsibilities.”
He referred to
“measures aimed at ensuring that no company profiting from forced labour in Xinjiang can do business in the UK, and that no UK businesses are involved in their supply chains.”
That is absolutely right. The promised measures he outlined included
“a Minister led campaign of business engagement to reinforce the need for UK businesses to take action to address the risk.”
Have we seen that? Where is the evidence? I am not sure that I have seen it, even though I have asked numerous questions on the Modern Slavery Act about that.
Dominic Raab then referred to
“a review of export controls as they apply to Xinjiang to ensure the Government is doing all it can to prevent the exports of goods that may contribute to human rights abuses in the region.”
Here, I pick up the point mentioned by my noble friend Lord Hunt: this equipment could be used to do the very things he highlighted regarding organ transplants. I want to hear from the Minister: what are we doing on that commitment made 12 months ago? What are we doing at the WHO on investigating this abhorrent practice?
Dominic Raab also referred to
“the introduction of financial penalties for organisations who fail to meet their statutory obligations to publish annual modern slavery statements, under the Modern Slavery Act.”
I have repeatedly asked Ministers when and how that is happening, but, 12 months later, I have seen no evidence. As we heard in this debate, it is not as if that obligation is particularly hard to meet. It is not as if it says, “You won’t do this” and “You will do that”. It simply records what they are doing.
Earl Howe (Con)
My Lords, I am grateful to my noble friend for enabling us to debate the serious and important issue of ensuring that health service procurement and supply chains are consistent with the United Kingdom’s international obligations. I have listened very carefully to the contributions from all noble Lords who have spoken.
I begin by making clear what the regulation-making power under Clause 70 is designed to do, and not do. The Clause 70 power is limited in scope to healthcare services and, with the exception of some mixed procurements, will not extend to the procurement of goods. The vast majority of healthcare services procured by the NHS are provided by domestic suppliers or, indeed, by the NHS itself.
However, there is a wider point to address in response to the contributions of noble Lords. As a party to the Convention on the Prevention and Punishment of the Crime of Genocide, the UK is fully committed to the prevention and punishment of genocide as appropriate under the convention. Indeed, the UK is active in fulfilling its duties under the genocide convention. Given that the majority of mass atrocities occur in and around conflict, the Government believe that a focus on conflict prevention is the best means to prevent most mass atrocities. To that end, this Government adopt a consolidated, whole-of-government effort using our diplomatic, development, defence and law-enforcement capabilities to help find pathways to global peace and stability.
As my noble friend is well aware, it is the long-standing policy of the Government that any judgment as to whether genocide has occurred is a matter for a competent national or international court, rather than for Governments or non-judicial bodies. It should be decided after consideration of all the evidence available in the context of a credible judicial process.
Having said that, our policy on genocide determination does not prevent us taking robust action to address serious violations of human rights. The Government are clear that they expect all UK businesses to respect human rights throughout their operations, in line with the UN’s Guiding Principles on Business and Human Rights. In response to the guidelines, the UK is proud to be the first state to produce a national action plan, and we continue to develop our approach in line with the Modern Slavery Act 2015. Section 54 places a requirement on businesses with a turnover of £36 million or more to publish an annual modern slavery statement setting out the steps they have taken to prevent modern slavery in their operations and supply chains.
Following a public consultation, the Government committed to a package of measures to strengthen our transparency in supply chain requirements. This includes extending the reporting requirements to public bodies with a budget of £36 million or more to create public and private sector parity. The Government have led the way in this endeavour and, in 2020, the UK became the first country in the world to publish a government modern slavery statement, setting out the steps we have taken to identify and prevent modern slavery in our own supply chains. The noble Lord, Lord Collins, indicated that he had not seen evidence of action in this area. In November 2021, we published a progress report on how we have met the ambitious goals set out in that statement and, at the same time, each UK ministerial government department voluntarily published their first annual modern slavery statement. As the noble Lord mentioned, the FCDO and the Cabinet Office are also working together to introduce new guidance to UK government bodies to exclude suppliers where there is sufficient evidence of human rights violations in any of their supply chains. Further detailed guidance is being developed that will be mandatory for government contracting authorities.
The UK’s G7 presidency demonstrated how we are revitalising G7 co-operation to tackle the most pressing global challenges. At the meeting in Carbis Bay, in June 2021, G7 leaders reaffirmed their commitment to uphold human rights and committed to prevent, identify and eliminate forced labour in global supply chains. This was followed up by the G7 Trade Ministers’ meeting in October, building on those commitments to eradicate forced labour, protect victims and improve global supply chain transparency, including by upholding international labour standards in their own business operations and procurement policies. This is one of a number of recent, clear demonstrations of our continued leadership and commitment to ending human rights abuses in global supply chains.
The noble Baroness, Lady Brinton, indicated that she did not think that the Department of Health and Social Care in particular was doing enough in this area, but if we look at the health service specifically, we see that the Department for Health and Social Care published a statement in October 2021 explaining the steps it has taken to identify, prevent and mitigate modern slavery within its own operations and supply chains for all goods and services that it procures. This aligns with the Cabinet Office guidance advising public sector contracting authorities on how to assess suppliers in terms of mitigating the risk of modern slavery. Contracts are normally placed in line with the department’s terms and conditions, which include clauses requiring good industry practice to ensure that there is no slavery or human trafficking in supply chains.
My noble friend also asked why the 2021 modern slavery statement did not cover the Vaccine Taskforce, PPE, UKHSA—formerly Public Health England—or test and trace contracts. Some indication of preventive steps taken in relation to these areas were included in the statement, and, as was outlined later in that statement, all areas will be covered in 2022 statements.
My noble friend, and the noble Baronesses, Lady Brinton, Lady Harris and Lady Kennedy, the noble Lords, Lord Alton, Lord Collins and Lord hunt, my noble friends Lady Hodgson and Lady Sugg, and others, raised issues about Xinjiang, in particular. The Government have taken robust measures in respect of UK supply chains. We have introduced new guidance for UK businesses on the risks of doing business in Xinjiang, supported by a programme of ministerial engagement, and we have announced enhanced export controls, as well as the introduction of financial penalties under the Modern Slavery Act. Taken together, these measures will help to ensure that no British organisations —government or private sector, deliberately or inadvertently—are profiting from or contributing to human rights violations against the Uighurs or other minorities.
I am conscious that the noble Lord, Lord Alton, asked me a series of questions. If he will allow me, I will write to him on those that I am unable to answer today. The same applies to the points raised by the noble Lord, Lord Rooker, to whom I listened with great care.
For the multiple reasons that I have set out, I cannot accept my noble friend’s amendment. I hope, nevertheless, that I have been informative, and that he will have derived at least some reassurance from what I have said about the seriousness with which the Government view the issues around human rights violations, and the actions that we are taking.
Lord Blencathra (Con)
My Lords, I am grateful to every noble Lord and noble Baroness who has taken part in the debate, every single one of whom spoke in favour of the amendment, apart from my noble friend Lord Howe—I perfectly understand that he had to adhere to the DHSC brief. I am certain that, if every other noble Lord were to speak in the debate, each one would support the amendment as well.
I am grateful for the particularly powerful speech of the noble Lord, Lord Rooker, on determining the provenance of goods. Just as an aside, I can tell the House that, before Christmas, I thought I would impress my wife by trying to buy a couple of Oxford pillowslips myself, without troubling her. I wanted something with a thread count of over 400—for my delicate little skin, of course—and it took me hours and hours on the web to try to find a supplier among the major retailers that could guarantee that it would not be from Xinjiang province. I ended up contacting one supplier and asking, and three weeks later it replied by email guaranteeing me that the cotton was not from Xinjiang. I bought the pillowslips, and I still do not know whether or not I have been sold a pup—but they are quite nice against the skin. The noble Lord is right: we can tackle this problem only if we can trace provenance, and using DNA or other scientific evidence may be the best way to do that.
I do not want to go down the route of criticising some of the initial contracts that the Government entered into, as some noble Lords have done. There is no doubt about it: we were ripped off by some of them, we bought some duff equipment, and there will have been some dodgy contracts. But I remember that, at the time, every medic was calling out, “Get us PPE from wherever you can!” The whole world was scrabbling to get PPE. If your house is on fire, you do not spend ages on the web trying to find the cheapest fire bucket; you buy whatever you can. So I do not want to spend time on whether those contracts were value for money; that is for another day.
Someone asked: when did genocide start? I recall that the noble Lord, Lord Adonis, who was in the Chamber briefly, made a powerful speech a few months ago, saying that when genocide was happening, the whole world noticed that it was happening but did nothing about it, and then afterwards said that it must not happen again. We knew that Jews were being exterminated, and after 6 million were killed we said, “It must never happen again”. We knew what Pol Pot was doing, and afterwards we said, “It must never happen again”. We knew what Stalin was doing, and afterwards we said, “We must never let it happen again”. Then there was Srebrenica, and afterwards we said, “We must never let it happen again”. We know that genocide is taking place in Xinjiang province, yet we are just putting in place systems that may, one day, eventually, stop us trading with some of the people there who are committing genocide. That is not good enough. We must act faster than that.
Lord Davies of Brixton (Lab)
I was going to oppose the question that Clause 80 stand part of the Bill, but I thought the order of speakers was going to be somewhat different. I am sorry—I am looking to my Front Bench for guidance.
Baroness Wheeler (Lab)
My noble friend wrote to the Table Office and said that he did not want Clause 80 to stand part and that he wanted Amendment 217, which I shall be moving, to start this group, as it did originally.
Lord Davies of Brixton (Lab)
It would help the House not to proceed with the debate on whether Clause 80 stand part of the Bill. Then we can move on to the amendments.
Baroness Wheeler
“Social care needs assessments
(1) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.(2) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.(3) Each integrated care board must ensure that—(a) arrangements made for the discharge of any patient without a relevant social care needs assessment are made with due regard to the care needs and welfare of the patient, and(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.(4) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including the number of patients readmitted within 28 days.”Member’s explanatory statement
This amendment would create protections for the provision of social care needs assessments. It includes requiring an assessment to be carried out either before a patient is discharged from hospital or within two weeks of discharge; and requiring ICBs to agree a process for the provision of assessments.
Baroness Wheeler (Lab)
I am sorry about the confusion and I thank my noble friend Lord Davies for helping to clear it up.
Amendment 217 seeks to tighten up important safeguards for patients and their carers by adding a new clause after Clause 80. Clause 80 repeals current provisions under the Community Care (Delayed Discharges etc.) Act 2003 and regulations for hospital discharge, and paves the way for the discharge to access approach used particularly during the pandemic. I thank my noble friend Lord Davies for allowing me to move this amendment and not opposing the question that this clause stand part. I know he will want to speak at some point during the debate.
We know that during the pandemic the discharge to access approach led to some very welcome and innovative practices in getting patients out of acute settings in hospital into safer environments. The approach also led to tragedy, when untested patients or patients with Covid were transferred into care homes, causing the rapid spread of infection and, sadly, hundreds of deaths that could and should have been avoided. Evidence from key stakeholders to the Commons committee dealing with the Bill reflected a very mixed experience of this new process. In some areas the perennial and disruptive issues around delayed transfer had eased and the process was working relatively well, while others sought much tougher safeguards or the end to the discharge to access process altogether.
Amendment 217 seeks to ensure the vital safeguards needed, which are particularly important since Clause 80 repeals key provisions but is not exactly clear on what replaces them. We are therefore seeking to add a new clause after Clause 80, ensuring that social care needs assessments take place by the local authority either before a patient’s discharge from hospital or within two weeks of discharge. It also requires the ICB to agree a process for the assessments with the local authority.
The amendment covers the need to have due regard to the care needs and welfare of the patient and ensures that the NHS meets in full local authority costs of caring for a patient while a social care needs assessment is taking place if the patient is discharged without one. It provides for the ICB to agree the social care needs assessment process with the local authority, including timescales and reporting on any failures, and the remedies and penalties that would apply if assessments were not carried out in the required time. We also call for monitoring and reporting to Parliament annually by the Secretary of State on the effectiveness of social care needs assessments after discharge, including information on patients who have had to be readmitted after 28 days.
Our amendment fully complements the remaining important amendments in this group, which seek to ensure effective safeguards before and during the hospital discharge process for carers as well as their loved ones under Clause 80, and for young carers under Clause 148. We fully support Amendment 219 providing an “NHS duty to carers” and ensuring that
“their health and wellbeing is taken into account”.
We support Amendment 221 on protecting carers’ rights and ensuring full consultation with them before discharge as well as consideration of their needs in terms of safety, information, services and support. We support Amendment 225 on the definition of carers, which restates the current and hard-fought-for legal rights of carers and young carers under the Care Act 2014 and the Children and Families Act 2014, including those relating to the parents and carers of disabled children. We also support Amendment 269 on the important right of young carers to needs assessments under the Children Act 1989 and the essential need for local authorities to consider the appropriateness of discharging a patient from hospital into the care of a young person.
Like other noble Lords, I am very grateful to the excellent briefings from Carers UK and from young carers. I look forward to the contributions of noble Lords. On hospital discharge, we know the original discharge to access guidance was twice published without any reference to carers. I suppose we must be grateful that the two paragraphs that have subsequently been added reinstate the Care Act Part 1 references and provisions for carers.
But this is not enough to maintain and protect the hard-fought-for rights of carers. Hospital discharge can be one of the most difficult points in the care system for both existing and new unpaid carers, who are often taking on caring responsibilities without the right information and support or consideration of the impact on the carer as well as the loved one. Indeed, this can be the most traumatic time for new carers other than, of course, the shock of, and coming to terms with, their loved one’s sudden illness or disability. I can certainly endorse that from my own experience and my discussions with many other carers I meet. I know that carers still have many serious concerns about the current guidance and I will leave it to my noble friend Lady Pitkeathley to vent the anger and frustration that is felt over some aspects of the guidance.
Amendments 221 and 225 seek to retain carers and young carers’ current and legal rights under the Community Care (Delayed Discharges) Act 2003—which contains a direct requirement to identify and consult the carer before issuing a discharge notice—and other key legislation, including the Children Act and the Children and Families Act, relating to young carers and parent carers of disabled children. I have added my name to Amendment 225. I feel particularly strongly about the need to include a definition of “carers” in the Bill and to stop the Government in particular but also the media and others using “carers” when, in fact, they are referring to care workers and not unpaid carers. As Carers UK says, absolute clarity and getting the terms right means a great deal to carers, especially when they have so few concrete rights. The two roles are not the same; they are different. There is huge frustration on this issue among carers as it feels as if we are going backwards rather than forwards. I want to know from the Minister what the Government are going to do to address this situation.
On young carers, with recent research showing that there could be as many as 800,000 children providing regular care, Amendment 269 from the noble Lord, Lord Young, to which my noble friend Lady Merron has added her name, takes on even greater importance to ensure that arrangements for discharging patients without a care needs assessment do not unduly impact young carers. It would also ensure that assessments by councils include consideration of whether it is appropriate for a younger carer to provide care. As well as that, support services must be in place for the safe discharge of the parent. We know that caring for parents, siblings and other relatives will have a significant impact a young carer—on school attendance, exam results and on their well-being and future careers. Every classroom in the country is likely to have at least one carer, and we must ensure that they are fully supported.
This is an important group of amendments and I look forward to the debate in the hope that the Minister will recognise the need for the important issues outlined in the amendments to be included in the Bill. To remind noble Lords, at the height of the pandemic, there were an estimated 13.6 million unpaid carers in the UK, 1.4 million of whom provide more than 50 hours of unpaid care a week. They are more than twice as likely to be in poor health than those without a caring responsibility, and 72% of carers did not have a break from caring during the pandemic and are exhausted and worn out. Carers deserve better than this—there is much to do. These amendments would at least ensure that their existing legal rights are protected and built on. I beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I apologise for not forewarning noble Lords that the noble Baroness, Lady Brinton, and the noble Lord, Lord Howarth of Newport, wish to speak remotely on this group of amendments.
Baroness Brinton (LD) [V]
My Lords, Amendment 219 in this group is in my name and I thank the noble Baronesses, Lady Pitkeathley, Lady Watkins of Tavistock and Lady Meacher, for also signing it. Just before I speak to that amendment, can I say that I also support the other amendments in this group so helpfully introduced just now by the noble Baroness, Lady Wheeler? I find her clarification of the difference between care workers and unpaid carers particularly helpful and vital in this debate because unpaid carers are invisible.
My amendment deals with unpaid carers. I am very grateful for the briefing from Carers UK which estimates —as we heard from the noble Baroness, Lady Wheeler—that there are as many as 13.6 million unpaid carers in the UK and, shockingly, over 1.4 million people providing over 50 hours of unpaid care a week. My brother looked after my mother for eight years, probably for 40 to 50 hours a week for most of that time. It meant that he just could not work at all. He is not alone.
I am sure we all know someone who is an unpaid carer. Even if they want to fulfil this role for their loved ones, society and the Government need to recognise the difficulties this gives the carers. The census in 2011 showed that carers are more than twice as likely to be in poor health than those who do not have a caring role—and they need support too, especially if they are isolated at home with the person they are caring for, whether that is day services or short in-patient respite care. Some 72% of carers have not had any breaks from caring during the pandemic and, as a result, are exhausted and worn out.
Lord Howarth of Newport (Lab) [V]
My Lords, I too would have preferred to speak later in the debate. I am sure that there are other noble Lords who have tabled amendments from whom the Committee would have preferred to hear nearer the outset, but I understand that the Deputy Chairman of Committees does not the flexibility to allow this, and I am of course grateful for the opportunity to speak.
As we know, the Covid-19 pandemic has led to a substantial rise in mental ill-health across the general population. Not surprisingly, this effect has been particularly hard-felt among unpaid carers. Many carers, already leading confined lives, have struggled with lockdown. Young carers have suffered with the loss of schooling and, when schools returned, trying to ensure that the people they care for have been shielded from the virus. Many were unable to go back to school for fear of bringing the virus home. Many from disadvantaged backgrounds did not have the digital resources to enable home schooling to be effective.
As we consider these amendments, I would like briefly to bring to the attention of noble Lords some remarkable work with carers being developed in Kingston upon Thames by Kingston Carers’ Network. KCN provides a range of crucial services to some 4,000 adult carers and 700 young carers from five to 18 years old. An important element of this support is nurturing the creativity of carers. Recognising, from the SHAPER research programme, which I mentioned in a previous debate, the positive effects of the arts on mental health and well-being, KCN is working with Rosetta Life to introduce three arts programmes for carers. Poetry and conversation provides co-created poetry workshops for adult carers, demystifying poetry and making it easier to approach. Participants have written and shared online poems about the challenges of caring. They have all said they would like more sessions.
KCN is trying to secure funding to participate with Rosetta Life in an international project called HeArt of Care. The idea is to offer master classes in dance, art making, photography, poetry and song writing for both adult and young carers. The project will create a website showing positive representations of the grace, dignity, compassion and joy of care and caregiving. The groups that would participate with KCN are a network of carers from Tyneside, Bristol Black Carers, Caregivers India and the End of Life Care Centre, Rwanda.
Another project is Room2Dream. Rosetta Life has a partnership with Dream a Dream in India, which works with 18 to 21 year-old carers who live in extreme poverty. This is one of 16 partnerships between young people in the UK and young people in refugee camps, conflict zones, hospices and adolescent psychiatric care. Young carers are offered poetry and song-writing workshops; they are given classes in film-making to enable them to create films about their poems and songs, and share them with other young carers not only in India but in, for example, Rwanda, Syria, Zimbabwe and Nepal. KCN is currently trying to secure funding for this initiative too.
These fledgling projects highlight the potential of the arts to improve the lives of unpaid carers and to enable them to have a voice that will be heard nationally and internationally. We should ensure that the system created through this legislation will underpin such ways to strengthen the resilience of carers and, beyond that, to enable them to flourish. These amendments will help. I look forward to a time when public policy, far more reliably and generously, supports unpaid carers to have better lives while they do their crucial work.
Baroness Pitkeathley (Lab)
My Lords, for 25 years, I have been trying to bring the voice of carers into your Lordships’ House. I know, from the great amount of support I have received over those years, that the whole of your Lordships’ House agrees that we should recognise and value the enormous contribution of millions of people caring for families and friends, who do so much to support others, often at great personal cost. I make no apology for repeating the statistics: up to 13 million carers provide unpaid care worth £530 million a day, or £193 billion a year. They are indeed the backbone of our health and care system.
Ensuring that the health system identifies and supports carers in return is the least we can do, and that is the objective of the four amendments to which my name is added in this group. I am also very supportive of Amendment 217 moved by the noble Baroness, Lady Wheeler. I thank her for her excellent introduction. I am strongly supportive of Amendment 219 and am grateful to the noble Baroness, Lady Brinton, for tabling it.
As Members will know, I have long called for the NHS to have stronger duties towards unpaid carers. The NHS depends heavily on the role and input of people who care unpaid, usually family and friends but quite often neighbours, in supporting people with long-term conditions and disabilities in the community. Research by Carers UK shows that more than half of carers say they feel invisible to the NHS; more than half of carers providing significant amounts of care were not involved in decisions about hospital discharge; and the majority of carers, over 60%, were not given enough information and advice to care safely, at the point of hospital discharge, for the person they care for.
Placing a duty on the NHS with regard to carers is needed, as there is currently neither a systemic nor systematic approach towards carers in the NHS. As the noble Baroness, Lady Brinton, pointed out, a duty to carers would help greater integration between services. Currently, local authority social care sees carers as equal partners in care and very much part of the system, whereas carers can be invisible to the health system. This duty would also lead to direct benefits to the health system, including improved health and well-being, improved satisfaction with services, and reduced admissions and those all-too-frequent readmissions. More practically, it would avoid the significant omissions of carers in recent guidance on hospital discharge, to which I now turn.
Amendment 221 proposes to insert a new clause to protect carers’ rights. As it stands, Clause 80 is of great concern. Almost incredibly—I can hardly believe I am saying this—it removes from carers rights that have been hard fought for over many years and which were enshrined in the Care Act 2014 and the Community Care (Delayed Discharges etc.) Act 2003. Many of your Lordships will remember those Acts and the many hours we spent on them.
This Bill repeals the legislation giving carers the fundamental right to have an assessment and ensuring that the services provided make sure that discharge from hospital is safe. There are endless horror stories about unsafe discharges and this issue has been debated extensively in another place. Hospital discharge is one of the most difficult points in the care system for unpaid carers, who often take on caring responsibilities without the right support.
Through Clause 80 in the Health and Care Bill, the Government are seeking to pass legislation that would enact the discharge to assess approach mentioned by my noble friend Lady Wheeler, which has recently been deployed by NHS England, by repealing, as I said, the Community Care (Delayed Discharges etc.) Act 2003. Amendment 221, in my name and supported by the noble Lords, Lord Young of Cookham and Lord Warner, and the noble Baroness, Lady Tyler of Enfield—to all of whom I am very grateful—would ensure that, in advance of any patient being discharged from hospital, the relevant NHS body must identify and consult any carer who is about to provide or will be providing care. This would ensure that the local authority is not the only statutory body with responsibilities towards carers and that the NHS plays its equal part. It would also ensure that the carer in question has services that protect their well-being and that assumptions are not being made that they will automatically provide care—assumptions that are made far too often.
Carers’ organisations are extremely concerned that the inclusion of carers in this guidance for discharge to assess is insufficient to protect carers’ rights. I ask the Minister, on what evidence basis is the move to discharge to assess better for unpaid carers? The evidence seems to be that discharge to assess is worse. The Government’s own impact assessment of the Bill recognises that it will lead to many carers having to take on even more care. It states:
“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this may result in a … reduction in work hours and associated financial costs.”
Are the Government really suggesting that carers go on to benefits—the carer’s allowance, for example, which is only £67 a week and recognised as a pathway to poverty?
I am sure the Minister is also aware that if a carer gives up work to care, they do not immediately get any benefits. That leaves them without any income at all. Or are the Government suggesting in their impact assessment that discharge to assess is better for carers by suggesting they take unpaid leave from work, in the process passing on the costs of hospital discharge to employers? Giving up work to care hurts the economy and costs businesses money in terms of recruitment and retention. So I would really like the Government to explain the thinking on this one, because I have lost count of the number of Ministers who have stood at the Dispatch Box and agreed with me that the best thing you can do for carers is enable them to stay in paid work as long as possible. So will the Minister please explain that to me—or better yet, be prepared to explain it to a group of carers that I am happy to arrange to meet him?
I turn now to Amendment 225, on the definition of a carer, which will be spoken to by the noble Baroness, Lady Hollins. It may seem unbelievable, but when I started in the carers’ movement in the mid-1980s, the word “carer” was unknown. Yes, it was not even in the dictionary, and every time you typed “carer”, your spellcheck corrected it to “career”. Now the word is everywhere and, in a way, the unpaid carers movement is a victim of its own success, because everyone wants to be called a carer and it is increasingly used to describe paid care workers. Carers themselves actually have difficulty in identifying themselves as a carer—“I’m not a carer, I’m a mother, a husband, a daughter”, is what they say. This lack of identification is an obstacle to them accessing support, so a proper definition is vital and it must be all-encompassing, as set out in the amendment. We fought very hard to get these definitions acknowledged in statute, for example the Care Act 2014, and it is important that the word “carer” encompasses parent carers and young carers.
I point out that the purpose of this amendment is not to create anything new. It uses only existing legislative references. Its purpose is to ensure that the definition of carers in the Bill is entirely clear, so I see no possible reason for the Government to reject it.
Baroness Hollins (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Pitkeathley, and her powerful speech. I support the amendments in this group and will speak to my Amendment 225. First, I declare an interest as an unpaid carer myself, who has had to take on considerable additional caring responsibilities as a result of the pandemic. I enjoyed the description of the noble Lord, Lord Howarth, of the use of poetry, because it is certainly a new hobby of mine, which I found very helpful during those long months of caring.
Mencap’s survey from the first wave of the pandemic in 2020 found that four in five carers of people with learning disabilities were taking on much more care of such people in their families because of the loss of paid support and daily activities for their family members. For many, it will take many months, even years, to return to pre-Covid levels of paid support to support those carers.
During the pandemic, care and carers were often spoken about as synonymous with care homes. I found it very discouraging as an unpaid carer myself to think that it was so little understood in government communications about the pandemic. I tabled this amendment to ensure clarity regarding to whom the Bill refers when it uses the term “carers”. As the noble Baroness, Lady Pitkeathley, explained, it does this by providing existing definitions of carers that are present in related legislation. I too thank Carers UK for its helpful briefing and support.
The amendment is necessary because there is so much confusion about the term “carers”. It is used to describe paid care workers, who I prefer to describe as support workers, or perhaps carer support workers, but that is not the same as caring for a family member and caring about a family member, which is a central part of the role.
The amendment is necessary for another reason: the inclusion of parent carers and young carers more systematically, where appropriate, in the Bill’s consultation and involvement provisions. This should drive better practice and outcomes for all concerned as well as providing clarity.
The provisions in the Bill relating to carers to which this amendment refers do not mean that all groups of carers defined here must be consulted or involved for all services, but only where appropriate. It does, however, provide clarity. The Health and Social Care Act 2012, on which the legislation builds, did not define carers either, which in hindsight it probably should have. This is therefore an opportunity to refine the legislation based on this experience.
Carers UK’s view is that this amendment would improve the clarity and delivery of policy and practice. Family and friends who provide care often put their needs at the back of the queue, and yet the NHS would collapse without them. As already set out, young carers face particular health inequalities and challenges in caring. Evidence from the Children’s Society shows that one in three young carers has a mental health issue and 80% of young carers felt more isolated during the pandemic.
The amendment has the broad support of a variety of different organisations that deliver services and support to carers, and which would welcome this clarity. As well as Carers UK, this includes the Patients Association, MS Society and many local carers’ organisations. As they are the organisations which will be implementing the legislation, supporting and informing carers and providing clarity is essential.
When this issue was raised in Committee in the House of Commons, the Minister said that “carer” should be defined in its everyday sense as unpaid carer. However, we already have sound legislation, which can be referred to, that defines carers. We need to ensure that the muddle of terms created during the pandemic is undone. I ask the Minister to define carers clearly in the Bill by accepting this amendment and to recognise the hugely invaluable role that carers play in our society.
Lord Young of Cookham (Con)
My Lords, it is a pleasure to follow my new room-mate, the noble Baroness, Lady Hollins, and I agree with every word that she has just said. I also agree with the other speeches that we have heard in favour of the various amendments. I pay particular tribute to the noble Baroness, Lady Pitkeathley, for her tireless campaign over 40 years on behalf of carers.
I have added my name to Amendment 219 but I will focus on my Amendment 269, which focuses on young carers. I am grateful to the three noble Baronesses who have added their names. Might I be allowed a word on one line in Clause 80, whose future I thought we were debating in this group but which has now been incorporated into the Bill? The line is:
“The Community Care (Delayed Discharges etc) Act 2003 is repealed”.
Noble Lords with long memories may remember that Bill. At the time, I said it was the worst I had seen in 30 years. Instead of doing what this Bill seeks to do —to bring together health and social care to facilitate closer co-operation—it established an antagonistic relationship between the NHS on the one hand and social services on the other by enabling one part of the public sector unilaterally to fine another part. It was a friendless piece of legislation, heavily criticised in your Lordships’ House, as the noble Lord, Lord Hunt of Kings Heath, who had the misfortune to pilot it through, will doubtless confirm.
At the end, my noble friend Lord Howe said, nearly 20 years ago:
“On a more philosophical level, we need to ask ourselves whether this system of financially driven imperatives is what we want to see pervading the fabric of our public services wherever the NHS and social services interact. I am clear that it should not”.—[Official Report, 17/2/03; col. 929.]
How appropriate that, 20 years later, my noble friend helps to put the final nail in the coffin of that Bill. However, it had one redeeming feature: the obligation to assess prior to discharging a patient from hospital. However, as drafted, as other noble Lords have said, the proposals could have the unintended consequence of weakening protections for children who look after adult relatives.
My amendment is about young carers and is shaped by my experience when in another place of working with Andover Young Carers. Children barely in their teens were combining education with caring for disabled parents. The organisation was based in a small bungalow on a local authority estate, and it did heroic work, forging closer links with schools and children’s services. Some of the children spent more than 30 hours each week looking after parents and elderly relatives—almost the equivalent of a full-time job—as well as often having caring responsibilities for younger siblings. They cooked, did the housework, shopped, collected prescriptions, leaving little or no time to enjoy their childhood. The noble Lord, Lord Howarth of Newport, spoke movingly about the work of young carers in Kingston.
According to research from 2018, as the noble Baroness, Lady Wheeler, told us, there are more than 800,000 young carers in the UK. Recent figures show that 180,000 children in England who care for an ill or disabled relative are missing out on support, simply because they are not known to their local authority. Hence the need for this amendment which ensures that young carers are identified before adults are sent home from hospital to be looked after by them. If contact with adult carers is necessary, as we have heard, it is doubly necessary for young carers.
This is because we have clear evidence from Barnardo’s—I am grateful for its briefing—which shows that adults are being discharged from hospital into the care of children, without first making sure that these children are aware of their new responsibilities and that they have the support necessary to enable them to discharge them. I fear this is set to only get worse, placing more caring responsibilities on small shoulders, unless the Bill as currently drafted is amended.
The Care Act 2014 gave a young carer under the age of 18 the right to a needs assessment and placed a duty on local authorities to take reasonable steps to identify young carers in their area who may need support. Yet, in its report Still Hidden, Still Ignored, Barnardo’s found that young carers were still slipping through the net. Its finding is reinforced by the latest CQC survey, which found that 21% of people did not have their family or home situation taken into account when staff prepared them for discharge, a point referred to in the excellent paper which many noble Lords received today from Dr Moore at the University of Manchester.
This amendment places an obligation on the NHS to ascertain whether a patient will be cared for primarily by a young carer and, if so, to contact the local authority concerned for an assessment and the necessary support. This will not delay discharge but would ensure that hospital staff ask if a child under 18 will be the primary carer. If the answer is yes, the hospital should contact the relevant local authority which will ensure that a needs assessment is carried out.
I know the Government have made positive steps to ensure that the needs of young carers are recognised in the guidance which will accompany this Bill, and for that I am grateful. However, without a clear duty on hospitals to establish whether a patient is being discharged into the care of a child, the current situation is likely to continue. Guidance is worthy, but sadly not definitive. Therefore, the pathway for young carers to get the local authority assessment they are entitled to needs to be strengthened and here the health service is the key missing link. I speak to this amendment today because young people who care carry huge responsibilities and we must, as a society, do more to ensure they can live the flourishing lives they deserve.
Lord Warner (CB)
My Lords, I strongly support all the amendments in this group. The noble Lord, Lord Young, has been so persuasive and I endorse what he said about young carers. As someone who has been involved with carers for almost as long as the noble Baroness, Lady Pitkeathley—I now regard her as my general in these matters—I want to focus on Amendment 221, to which I have added my name.
It is worth remembering that this Bill is being considered in the context of adult social care funding having been starved, in my view, by three successive Governments. Even when huge sums of money are being raised for health and care through a national insurance levy, social care has to wait its turn. A bit like Oliver Twist, it is at the end of the queue—hopefully there will be some money left in the coffers after the NHS has removed a substantial part of it. That context is very important.
In that context, I find it surprising that somebody somewhere in the Department of Health and Social Care thinks it is a good idea, as the noble Baroness, Lady Pitkeathley, said, to weaken the protections for carers. It is worth bearing in mind that one in five carers now waits over six months for an assessment. In a survey from last November, only 24% of carers had received a carers’ assessment or reassessment in the past year. This is the context in which officialdom and Ministers have thought it a good idea to weaken the protections provided in the 2003 Act. There may have been some weaknesses in that Act, but this was not one of them, as it provided for the NHS to undertake these assessments before people were withdrawn. The noble Lord, Lord Hunt of Kings Heath, is not in his place, but he was the person who took that Bill through and achieved support for that protection for carers.
Lord Davies of Brixton (Lab)
My Lords, I apologise for the confusion at the beginning of this debate. My understanding of the ways of this House is still a work in progress. I gave notice of my intention to oppose the question that Clause 80 stand part to provide the Government with an opportunity to explain more clearly than they have their intentions for the management of hospital discharge. I hope in so doing they can allay the concerns that surround the proposal to revoke Section 74 of the Care Act 2014. For example, there are the concerns of the National Care Forum, which points to the danger that
“the removal of an assessment prior to discharge will result in less priority to undertake the assessment once someone has left hospital—for someone needing support to remain in their own home, this is concerning.”
The process of hospital discharge is a crucial element within the integrated care system established by this proposed legislation. From the perspective of the service user, this is where it all comes together. It must be done right. The Explanatory Notes tell us that this clause introduces flexibility for local areas to adopt the discharge model that best meets local needs, including an approach known in England as discharge to assess, the argument being that people will be assessed at a point of optimum recovery, allowing a more accurate evaluation of their needs. Who could possibly object?
The first problem is that there is a widespread lack of trust in the Government’s motives and intentions on this, like on other changes in the Bill. It is possible to argue that the change means that people will be assessed where most appropriate. But it is also possible to argue that the change will facilitate premature discharge that is in the interests of the service provider, not the people receiving the service. As well as explaining and stressing the advantages of the proposed change, the Minister needs to tell us what the Government are doing to ensure that it will not lead to the disadvantages that many of those involved in the process fear.
The second issue that the Government need to address is that hospital discharge is still seen predominantly as a medical matter, with concern that insufficient attention is given to the social care aspects. A survey from December 2020 of social workers who were involved in hospital discharges made it clear that the vital contribution of social work in the multidisciplinary team was being marginalised by the medicalisation of people’s journeys out of hospital. Most importantly, social workers were found to feel that the voice of the individual, the person receiving the service, was being lost, indicating that arrangements were being made without consent or against people’s views and wishes.
It is also important to understand the context within which this change is proposed. On the one hand, there is the current crisis in social care. Even without the impact of the Covid pandemic, demand is outstripping supply, there are waiting lists for assessments of need and support, and local authorities are operating with significantly reduced budgets following a decade of austerity. On the other hand, there is the widely understood pressure on the hospital sector, with increased demand and mounting waiting lists. Both these factors are the result of the long-term underfunding of our system of health and social care. This will have to be addressed—just let it not be at the cost of the service user.
We must ensure that community health teams and social care teams have the resources they need to provide a needs assessment as soon as an individual is discharged. Too often, the issue of hospital discharge is discussed in terms of the needs of the service and not of the individual person.
Baroness Watkins of Tavistock (CB)
My Lords, it is a pleasure to speak on this group of amendments, but I want to focus particularly on Amendment 219. There are around 6.5 million unpaid carers in the UK, a number which increased to 13.6 million, or about one-fifth of the population, during the height of the pandemic. Some 1.4 million people provide more than 50 hours of unpaid care per week. Unpaid carers are often relied on to provide this care, yet receive minimal or no formal support themselves. Instead, many report feeling isolated, undervalued and pressured by the challenges of stress and responsibility. Being a carer is emotional and physical labour.
A lot has been said about the Carers UK survey, which identified that 56% of unpaid carers were not involved in decisions about patients’ discharge, with seven out of 10 respondents not being asked whether they were able to cope with having the patient back home and six out of 10 receiving insufficient support to protect their own or the patient’s health and well-being. This lack of support reflects the absence of a unified and systematic approach to identifying and supporting unpaid carers. It demands urgent remediation, especially as we know that unpaid carers are twice as likely as non-carers to have ill health, and the majority have reported worsening mental and physical health during the pandemic.
I endorse Amendment 219 because it talks about carers who work with people who come into contact not just with hospital services but with NHS services. In my work as a community mental health nurse, in many instances I saw that people were not admitted to hospital for years—which was actually a very good outcome—but their carers’ needs were just as great in supporting them with long-term problems in their own homes. This amendment would create a duty in respect of any person receiving NHS care, whether that is in the community or in hospital. The NHS must identify unpaid carers, particularly young carers, and ensure that their health and well-being are properly considered. This is a vital public health duty.
Baroness Tyler of Enfield (LD)
My Lords, I strongly support this group of amendments. I particularly endorse Amendment 269 regarding young carers, which was spoken to so compellingly by the noble Lord, Lord Young.
I wish to speak primarily about Amendment 221, to which my name is attached. It is about protecting existing rights of carers. I know that the point has already been made, but it is worth repeating. Amendment 221 would retain existing rights being taken away by this Bill as it repeals the Community Care (Delayed Discharges etc.) Act 2003. I find that a pretty extraordinary position to be in.
I want briefly to focus on the impact of caring particularly on women and employment, without in any way wishing to diminish the very important role played by male carers within the family. It is just a fact that women are more likely than men to be carers. According to some research conducted by Carers UK with the Universities of Sheffield and Birmingham, women have a good chance of becoming carers 11 years before men. Women are also more likely to reduce their working hours in order to care, and they are more likely as a result to have lower incomes and end up under-pensioned in retirement.
As we have heard, hospital discharge can be a pivotal moment for people providing care, particularly women. This amendment would ensure that assumptions are not made about carers’ ability to care, even when they may be working at the same time, that a solution is discussed and, ideally, agreed between families and services, and that carers are provided with the support they need to enable them to care safely and well. For those carers who are juggling work and care, which I can relate to personally, it is essential that their health and well-being are supported. This also has a positive benefit for employers. During the pandemic, the Carers UK research already referred to found an increase of around 2.8 million in the number of people who were juggling work and care, the majority of whom were women. Prior to the pandemic, some 600 carers a day were giving up work to care. During the pandemic, as the noble Baroness, Lady Pitkeathley, reminded us, carers have become the backbone of the care system, protecting the NHS and social care in many cases from collapse.
The Carers UK research also found that 72% of carers providing substantial care and working were worried about continuing to juggle care and work, and 77% of carers said that they felt tired all the time at work because of their caring responsibilities. During the pandemic, 23% of working-age carers providing substantial care had given up work, lost their jobs, lowered working hours or lost income if they were self-employed.
As the NHS works to reduce the backlog of care, hospital discharges will become ever more critical, as will support for carers. The two go hand in hand, and we must not fail those who have so selflessly shouldered such a heavy load.
Baroness Altmann (Con)
My Lords, I shall speak to all the amendments in this group, but I have added my name to Amendment 217 in the name of the noble Baroness, Lady Wheeler. There are two separate but related issues in this group of amendments, and it might be helpful for a moment to focus on them. The first is the needs of patients who are facing discharge from hospital. The second is the needs of unpaid carers in situations where patients are sent home from hospital. That second issue is covered particularly by Amendments 219, 221, 225 and 269. I support all of them, and commend the work and the words of the noble Baroness, Lady Pitkeathley, and the passionate speech from my noble friend Lord Young.
I wholeheartedly share the concerns about the repeal of the provisions in the Care Act 2014. The issue of patients needing to be discharged from hospital sometimes seems to be spoken of as if we are discussing objects rather than people.
Baroness Meacher (CB)
My Lords, I added my name to Amendment 219, and I support all the amendment in this group. In view of the number of excellent speeches that have been made, I have given up on my speech and just want to ask the Minister a question. I am sure he finds it completely unacceptable that half of carers who provide significant care for a loved one say they have not even been consulted about a discharge from hospital and two-thirds of them say that they have not been listened to about whether they are able to care for their loved one when that person might be coming out of hospital. I ask the Minister to assure the Committee that he will be able to bring back an amendment on Report on this critical issue.
Lord Scriven (LD)
I support in particular Amendment 217. In so doing, I draw the attention of the Committee to my interests as set out in the register, particularly as a vice-president of the Local Government Association.
I want to make three very clear points about this. First, this amendment refers to assessment; it does not refer to the package of care. The assessment is the first stage, before the social workers and before adaptation or anything else can happen, so the person leaving hospital gets a sense of independence and support to lead as independent a life as possible and to help them in their recovery. Evidence shows that the best way to start the assessment is on the day that the person is admitted. It is not about waiting for an optimal time. The assessment may change as the person progresses, but all the evidence shows that assessment should start on admission. The concept that there is an optimum point does not stand up to the evidence.
Secondly, having this framework within the Bill, with timescales and so on, does not stop local innovation, it just gives a framework for local innovation and integration to take place.
My third point is a question. I know of no condition—unless the Minister can inform the Committee of one—where starting the assessment two weeks after a person leaves hospital is in the best interests of that person; they may have to wait six, seven or eight weeks for the package of care to be put in place. Can the Minister tell us for which conditions the suitable and optimum point at which to start the assessment is after a person has left hospital?
Baroness Bennett of Manor Castle (GP)
My Lords, after this rich and informative debate, I will briefly make two points and offer the Green group’s support for all these amendments.
I share the shock expressed by the noble Baroness, Lady Tyler, and others that we are in a situation where in the House of Lords we are trying to put the situation back to what it was before because the Bill is making it so much worse.
I particularly want to address Amendment 269 about young carers. I should perhaps declare that I have never been carer—I have not been in that situation. But I want to share a little bit of what I learned from Sophie Dishman, who I met in 2015, when she was a student at the University of Sunderland. She told me that she became a carer at about the age of 12, but that it was only when she was 18 that she realised that she was a carer—a point that many others have addressed. As well as continuing to care, she created a campaign at the University of Sunderland to inform others about the situation and perhaps help others identify themselves as a carer. She produced a very clever, witty, attractive tote bag, with the line, “Being a carer at uni can be a lot to carry around”, a check list of all the things that you might have to do being both a student and a carer, and a useful leaflet, designed for staff in particular, showing signs that a carer might need help.
I want to make the point, which I do not think anyone else has made, that young carers are by nature people who have developed an enormous amount of capability, knowledge and skills. They are amazing individuals. It is not only the right thing to do but in society’s interest to make sure they are able, as the noble Lord, Lord Howarth, said earlier, to flourish and develop those capabilities. It is in our interest to do that.
I want to point to an article that has been out for only a couple of weeks, in volume 27, issue 1 of Child & Family Social Work. The headline is
“It’s making his bad days into my bad days”,
and the article is about young carers in the Covid emergency. This is where we are now. It is about just how much more difficult the withdrawal of services has made it for carers, particularly young carers. We have a huge, as yet uncertain, but certainly large, burden from long Covid, and many people will be taking on huge caring responsibilities because of it.
Baroness Walmsley (LD)
My Lords, if the noble Baroness, Lady Pitkeathley, is the general, we are all her foot soldiers. There have been some excellent speeches. In particular, the noble Baroness outlined for us what are, I hope, the unintended consequences of what the Government are doing in their proposals about discharge to assess. It does not seem right that it is up to this House to put back the rights and abilities of carers to do their caring without too much impact on themselves. I hope the Minister heard what the noble Baroness, Lady Pitkeathley, and others, such as the noble Lord, Lord Warner, said about that. We heard from the noble Baroness, Lady Hollins, how much worse the situation has been for so many carers—in particular those who care for people with learning disabilities or mental health problems—during the pandemic, when, unfortunately, it was necessary to withdraw certain services that they normally rely upon. I hope that, when we have heard the Minister’s response, we can come back to Clause 80 on Report if we are not satisfied with the Government’s response, because the situation is not good, even now.
I am grateful to Carers UK and Barnardo’s, which have given us some dreadful horror stories about the situation of carers when the person they care for is being discharged from hospital. One of the worst that I read about was when the carer was only told when the person being discharged was actually in the ambulance on the way home. They had to run around trying to get a commode, which that person would certainly need when they got home. The situation is so much worse for a young carer who does not necessarily know their way around the system in the same way that an adult carer might. Although I support all the amendments in this group, that is why I added my name to Amendment 269 in the name of the noble Lord, Lord Young of Cookham. It is all about the need to identify and ensure appropriate support for young carers before a patient leaves hospital. I really take on board my noble friend Lord Scriven’s view that you should not do it at the end of the stay in hospital: you should start thinking about it when the person goes into hospital.
Caring for a sick or disabled person, no matter how strong the bonds of love, is a difficult and exhausting challenge. It is hard enough for adults, the majority of whom, as we have heard from my noble friend Lady Tyler, are women; we have heard about the effects on their finances and pensions. Many adults do not feel equipped to do it adequately, and it is even harder for children. How can a child be expected to have the knowledge and skills needed to care adequately for an adult and, at the same time, benefit from education and prepare for their own future life?
We know that circumstances sometimes put children in this position, but it is essential that public services provide as much support as possible. However, we know that, although it is estimated that there might be around 800,000 young carers in the whole of the UK, sometimes even their school does not know who they are. In some cases, the young carers themselves prefer it that way, because they see it as a stigma or something that their friends might not quite understand; but it does mean, of course, that they do not get the help that they need, and neither does the person being cared for.
I agree with the noble Baroness, Lady Wheeler, that a proper assessment must be done either before the patient leaves hospital or very promptly post discharge. I hear all the problems about that; yet, carers, according to an ONS report in 2017, save the state more than £60 billion every year, which is more than is spent on formal caring—although it is not clear how much of that is saved by young carers. On the other hand, it has been assessed that a family with a young carer has an income, on average, £5,000 a year lower than other families—so these families are often poor too.
Local authorities already have considerable duties relating to identifying, assessing and supporting young carers, and we have heard of at least two very good schemes. Many of them do it very well, despite the fact that some of these young people are hard to find. However, it is essential that some duties also apply to the NHS, and they must not be lost in the move to integrated care systems. Adequate focus must be placed on these duties by the ICB having a rigorous system or framework to ensure a process for assessment. As my noble friend Lord Scriven pointed out, this is step one in ensuring that needs are subsequently met.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
My Lords, I thank all noble Lords for their contributions to this debate. We are looking to move towards a more integrated care system for precisely some of the reasons that noble Lords have laid out: that a patient is discharged by a hospital but it is not done in an integrated way. As the noble Baroness, Lady Wheeler, said, during the pandemic local authorities and the NHS developed innovative ways to support better discharge from hospital to community care, and what we want to see is discharge to assess as one model. In some cases, it might be the best model: for example, where people are over the age of 80, the longer they stay in hospital, the more you see muscular deterioration. That is one of the reasons given for why, in some cases, discharge to assess might be the most appropriate.
Lord Warner (CB)
I am sorry to interrupt the Minister’s flow. I have been listening very carefully to this. What I do not understand is what happens if there is not enough resource in the local authority. Local authorities have had pretty poor treatment over the last decade compared with the NHS. If there is not enough resource to either do an assessment or meet the needs of that assessment, does it then fall to the NHS to plug the gap if it wants to get the person out of hospital? We would like a little more clarity on that particular aspect.
Lord Kamall (Con)
I thank the noble Lord for his question. The goal is to make sure that the NHS and local authorities work better together. The noble Lord talks about resources. One of the reasons for the levy—whatever one thinks of it—is to help plug that gap and to make sure that there is more money going into social care as well.
Turning to the points made about the term “carer”, we believe that the term is used to capture the whole spectrum of carers, including children and adults who care, unpaid, for a friend or family member. By not imposing a statutory definition, we avoid inadvertently excluding groups, and ensure that ICBs and NHS England promote the involvement of all types of carers and representatives.
Turning to the last amendment in this group, existing legislation already requires local authorities to carry out an assessment of need for all young carers upon request or on the appearance of need. This assessment must consider whether it is appropriate or excessive for the young carer to provide care, in the light of the young carer’s needs and wishes. Indeed, as some noble Lords have said, sometimes what happens is that the hospital may decide it is appropriate but those who are supposed to be doing the caring at home do not feel they have the ability.
We hope that under this, as part of the discharge planning, the current discharge guidance can set out any considerations that should be given to young people in the household who have caring responsibilities. We want to strengthen current processes in respect of young carers too. We are also working with the Department for Education to ensure that protections for young carers are reflected in the new guidance, including setting out where young carers should have a needs assessment arranged before a patient for whom they provide care is discharged, or as soon as possible afterwards.
Given the comments from noble Lords, especially the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Warner—sorry, I should say, General Pitkeathley and Major Warner—clearly there are still some concerns over how this will work. It would be worthwhile having some more conversations on this issue to better understand how we see integrated care working, where there may well be gaps in our understanding and whether we can help to close the gaps between the two sides.
Baroness Wheeler (Lab)
My Lords, it has been an excellent debate and I thank all noble Lords for their contributions, all strongly supporting this important group of amendments, which would ensure that the needs of both patients and carers were fully taken into account in the discharge process and that Clause 80 does not just wipe away carers’ rights—legal rights that have been hard-fought for. Although I am pleased that the Minister talked about further guidance being developed and co-produced, I cannot see how that will address the problem of replacing carers’ rights, which are being taken out of this Bill and need to be included in it.
I am also a bit disappointed that the Minister did not respond to my noble friend Lady Pitkeathley or give her the reassurances that she was seeking over the deep concerns about the expectation in the current guidance that unpaid carers will need to take on even more unpaid work. She made her views quite clear on this: it is paid work that unpaid carers need, not to be forced on to or to stay on benefits. They can take up jobs only if they get the care and support that is needed in the home or from the services that they need.
Noble Lords have made it clear that the discharge to assess model has to be matched with proper funding and community and healthcare services. The noble Baroness, Lady Hollins, reminded us of the importance of this in respect of the carers of people with learning difficulties, who face particular problems in caring. It is also overwhelmingly clear that noble Lords strongly support the establishment and the carrying forward into the Bill of existing carers’ rights.
I hope the Minister will meet urgently with my noble friend Lady Pitkeathley, Carers UK and others involved in these amendments, both to address the fundamentally wrong assumptions in the guidance about the role of unpaid carers and to ensure that their existing hard-won legal rights that have been taken away will be included. He also needs to provide the evidence called for by my noble friend on the overall assumption the Government are making that the discharge to assess process is better for carers than the existing rights that they have; it is not. This is a key issue that we will return to on Report, so I hope some action will be forthcoming from the government discussions between now and then.
On my own amendment, I would like to have heard a lot more reassurances about the timescales and timelines involved in the discharge process. I thank the noble Baroness, Lady Altmann, and in particular the noble Lord, Lord Scriven, for his support, and for explaining why this issue is important and how, practically, it would work with local authorities. On young carers, I particularly thank the noble Lord, Lord Young, and everybody who has participated in that.
I remind the Minister of the point from the noble Baroness, Lady Meacher: in the discharge process and in the assessments of carers it is really important that the question be asked whether they are able to care and whether they want to care. I would like the Minister to take up that issue. I know that carers feel strongly about this, but quite often, even if they are asked, no notice is taken and they just have to get on with it and nothing else happens. I would particularly like to see a response to that.
On those few points, I beg leave to withdraw my amendment. I hope the Minister acts quickly to meet carers and their representatives.
Baroness Thornton
“Cap on private charges
(1) Section 43 of the National Health Service Act 2006 is amended as follows.(2) After subsection (2A) insert—“(2B) An NHS foundation trust does not fulfil its principal purpose if in any financial year the proportion of the total income of the trust derived from private charges is greater than in the previous financial year unless—(a) the appropriate integrated care boards and integrated care partnerships have been notified of the intention that this increase will occur;(b) that intention has been published with a statement of the reasons why it is considered to benefit the NHS;(c) the appropriate integrated care boards and integrated care partnerships have used reasonable endeavours to consider any responses to the publication mentioned in paragraph (b); and(d) any integrated care board which has commissioned services from the trust, and the integrated care partnership for the board, have informed the NHS foundation trust that the proposed increase is justified.(2C) For the purposes of subsection (2B) “private charges” means charges imposed in respect of goods and services provided to patients other than patients being provided with goods and services for the purposes of the health service.””Member’s explanatory statement
The amendment prevents any Foundation Trust from increasing its income from private patients unless this is agreed by the relevant commissioning bodies and the appropriate integrated care partnerships.
Baroness Thornton (Lab)
My Lords, Amendments 222 and 223, in my name, seek clarification about the private charges cap. Amendment 222 would prevent any foundation trust increasing its income from private patients unless this was agreed with the relevant commissioning bodies and the appropriate ICB. Amendment 223 would remove the power for NHS trusts and foundations to form subsidiary companies.
When foundation trusts were introduced in 2003, they were restricted in the amount of private patient work they could carry out. That was, in part, to alleviate concerns that they might unduly focus on generating income from private patients rather than tackling the then considerable waiting lists. The compromise stood for many years and proved to be little hindrance, although there is one trust on record that declined to move to foundation trust status because it did have a large private patient income—I will leave it to the Minister to work out which one it was. Overall, the regulations have been sufficient to ensure that such activity did not grow and waiting lists came down. The restriction only ever applied to foundation trusts—not to plain old NHS trusts, although we all know that they are, of course, subject to the will of the Secretary of State in all things anyway.
The notion of independence was reinforced under the new settlement of the 2012 Act. That removed the restrictions and allowed, at least notionally, for a foundation trust to move to have up to 50% of its income from private patients. Although there were some claims that this would lead to a huge acceleration of private patient work, once again that did not prove to be the case.
Now we arrive at today. The new Bill is based on the assumption that the logic of competition between acute trusts is indeed minimised and that they should be more focused on general good, and less on autonomy and their own bottom line than on co-operation between different parts of the NHS in their locality. Logic suggests that in this new world we should once again look at ensuring that private patient work has no adverse impact on the core work of the NHS. These amendments are similar to those that were used to ensure that private interests cannot be allowed to influence the work of ICBs, and that that should be recognised in the Bill.
I have another three, very detailed pages, but I will spare the Committee those. I beg to move.
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
I thank the noble Baroness very much indeed. That makes it 15 all, I think.
The noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.
Baroness Brinton (LD) [V]
My Lords, I too will be extremely brief on this, given the hour and the number of groups we have to go through.
I am very interested to hear the response of the Minister on this; it feels as though there has been a sort of gentle relaxation, and it would be good to understand the boundaries for foundation trusts around how much they can increase their income from private patients at exactly the time when we have a phenomenal NHS waiting list and people are becoming more seriously ill as a result of the pandemic and there are delays in getting their treatment.
I say this particularly in the light of two recent comments—as I will call them—by the Secretary of State for Health. One was about increasing the amount of contracting from the NHS to private hospitals to perform large numbers of investigations as part of the backlog, but this is becoming habit now in this exceptional time—we have bad flu winters as well, but this is an exceptional time. Perhaps slightly more worryingly, the other concerns proposals that were outlined, informally, by the Secretary of State a couple of days ago to change entirely the nature of contracts with GPs. I am concerned that some of the structures, particularly for foundation trusts, are being loosened without Parliament being aware. I look forward to the Minister’s response.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Baronesses, Lady Thornton and Lady Brinton. I too will be brief. I have attached my name to the first of these amendments because it addresses such an important issue. We are seeing more and more signs of real competition between the resources being used for private work and for public purposes, for which the NHS is there. A report in the Guardian this month said that in January 2021, when there were enormous Covid pressures on hospitals in London, doctors wrote to their medical consultants begging them to reduce their private work so that their availability to those hospitals was greater. That is a measure of how Covid has accelerated and put extra pressures on the NHS.
I will quote from the websites of two hospitals, which I will not name; to do so would be unfair, as I suspect that they are very typical. One says:
“All profits from the provision of our private patient services are used to support the delivery of NHS clinical care for the benefit of all patients.”
Therefore, it is very easy to see how well-meaning people might say, “Well, if we do more private work, then we’ve got this money to put into our horribly underfunded public work”, but that is taking away terribly limited resources, particularly staff and staff resources, as we have discussed in considering so many other amendments. The other hospital’s website says of its private provision that it offers
“rapid access and flexibility for a wide range of conditions and care needs … the unit can also care for those patients admitted through”
the hospital’s
“emergency department who may wish to make use of their private insurance or indeed pay for their private care themselves.”
As noble Lords know or will recognise from my accent, I come from Australia, which has a two-tier system. Many people with resources have medical insurance, and the poorer people do not. There are clearly two utterly different levels of service, which means there is much less advocacy for, support for and fighting for public provision. If we look at the trend of travel, the amendment tabled by the noble Baroness, Lady Thornton, is important and must be thought about in the context of foundation trusts and much more broadly.
Baroness Chisholm of Owlpen (Con)
Well done. You need Baronesses to do this: they get to the point and get it done.
I thank noble Lords for explaining these amendments. As they may recall, in 2012 we abolished the private patient cap while clarifying that the foundation trusts’ principal purpose is
“the provision of goods and services for the purposes of the health service in England”.
This means that foundation trusts must make the majority of their income from NHS activity and must always have as their primary purpose the delivery of NHS services. We also retained the requirement that additional income should be used to benefit NHS patient care, and it has been used across the system to offset such things as maintenance costs, to finance alternative transport such as park and-ride and to fund patient care.
This amendment would introduce a new cap by requiring foundation trusts to agree with their ICB and ICP their income from non-NHS sources. However, this would be a significant bureaucratic burden on foundation trusts and would require them to forgo raising additional income or seek agreement via a multi-stage process before doing so. It would also mark a significant new restriction on foundation trusts’ freedoms and autonomy.
Similarly, Amendment 233 would restrict the freedom of NHS organisations to decide locally the most appropriate structures they need to support their operations. There are multiple reasons for trusts setting up subsidiary companies, including providing services for other trusts and being able to attract staff from the local employment market. Creating a subsidiary can also be an alternative to outsourcing services to the private sector, thereby maintaining its staff within the NHS family. Importantly, in November 2018 NHS Improvement issued guidance to trusts about forming or changing a subsidiary. Under that guidance, all subsidiary proposals must be referred to NHS Improvement for review. NHS England and NHS Improvement paused their update of the guidance to trusts on subsidiary companies to allow the sector to focus on supporting the response to Covid-19 and the recovery of services. However, we remain committed to the review and the publication of this updated guidance is now set for early summer 2022.
I hope I have given the noble Baroness sufficient reassurance for her to withdraw the amendment.
Baroness Thornton (Lab)
I thank the Minister and am very pleased indeed to hear about the review. However, we on this side of the House believe that the NHS should be the default provider of clinical services and, if it is not the only provider, it should be the predominant one in geographical and service terms. That means that there must be investment in the NHS, not in the private sector. It is that balance, which we must ensure is in this Bill, that has protected NHS clinical services in the past.
I will read what the noble Baroness has said very carefully, and I might need further reassurance in due course. I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
“Access to NHS dentistry
The Secretary of State must, within one year of the passing of this Act, publish a statement setting out what measures the Government is taking to ensure universal access to NHS dentistry.” Member’s explanatory statement
This new Clause would require the Secretary of State to publish a statement of what measures the Government is taking to ensure universal access to NHS dentistry.
Lord Hunt of Kings Heath (Lab)
My Lords, I hope that I do not slow us down again after the provocative words of the noble Baroness, Lady Chisholm, but I am going to talk about access to dental treatment and fluoridation. Although the House is somewhat empty, I expect that as the debate goes on it might fill up a little.
We had an Oral Question this afternoon about dentistry, and I do not want to repeat everything that was said then. I have enjoyed debating dental issues with the Minister, the noble Earl, Lord Howe, for many years. He will know that there is widespread concern about the lack of access to dentistry. At Oral Questions the Minister, the noble Lord, Lord Kamall, referred to the £50 million that had been provided, but I am afraid that the 350,000 treatments that it will pay for are a drop in the ocean compared with the 38 million patient treatments that have been lost as a result of the pandemic.
Many people are finding accessing dentistry almost impossible at the moment. The Minister referred earlier today to people being able to use the access centres, and to the 111 service, but I am afraid that it has broken down in many parts of the country. One is led to the conclusion that dentistry issues are not a priority. Many adults and children are suffering in pain because of their lack of access. The Government must focus on this and develop a proper strategy. I pay tribute to Healthwatch for its work in this area—it has had a lot of interest from members of the public—and to the BDA for its briefings.
Treatment is one thing, prevention is another. Here, I must remind the Committee of my presidency of the British Fluoridation Society. This brings me to effective preventive measures. I welcome Clauses 147 and 148. Unfortunately, the noble Lord, Lord Scriven, is not here to hear me say this, but essentially, giving this responsibility to local authorities has proved to be a failure. Not one local fluoridation scheme has gone through under the auspices of local authority leadership, and we must conclude that leaving it to local authorities is likely to mean that we will not see fluoridation developed in any part of the country.
So this is a national issue and it is right that the Secretary State should take over responsibility; it is also right to acknowledge that, in September last year, the four Chief Medical Officers stated:
“As with all things in medicine and public health there is a balance of risk and benefit.”
We have certainly learned that in the last two years. As they said:
“There is unquestionably an issue with tooth decay in the UK and an entrenched inequality which needs to be addressed. Fluoridation of water can reduce this common problem … On balance, there is strong scientific evidence that water fluoridation is an effective public health intervention for reducing the prevalence of tooth decay and improving dental health equality across the UK. It should be seen as a complementary strategy, not a substitute for other effective methods of increasing fluoride use.”
I think that is a very wise assessment of the situation. The effectiveness of fluoridation of water supplies to improve oral health has been evident for many decades. Some communities such as my own—Birmingham—have taken advantage and, as a result, we generally enjoy good overall oral health, but progress in spreading these benefits has been very slow. The transfer to local government, I am afraid, did not work.
So I strongly support the thrust of these clauses; in fact, they are the two most welcome clauses in the whole Bill. The question, however, is whether they will bite, and this is what lies behind my amendments. Amendment 260 concerns the consultation process. I do not think I have got the wording in quite the right place—frankly, trying to find my way through the Water Act and changes to it over the last 20 years or so proved beyond me—but the intent is to ask: if there is to be consultation about schemes, please can we move away from the local consultations that have to be gone through at the moment? They are an absolute nightmare. They bring out opposition from national bodies that causes mayhem in the locality.
The issue is not the practicalities of the scheme but about going back over the principle. The very fact that the Government have brought these clauses has decided the principle of the benefit of fluoridation. If there is to be a consultation, for goodness’ sake, let us have just one instead of the myriad local consultations that have obviously got in the way of progress in the past.
My Amendment 261 is part probing. Currently, the Bill gives the Secretary State power to make regulations to require a public body to meet the costs to the Secretary of State in relation to fluoridation schemes. I would be interested to hear from the Minister the reasons and circumstances under which they would be used. My concern would be that asking too hard a subvention of local bodies might inhibit the progress of fluoridation schemes. Amendment 262 requires the Secretary of State to ensure that a programme for implementing water fluoridation schemes is established within 12 months of the Bill being passed. I would like to see a report every three years, laid before Parliament by the Secretary of State, on the progress made in implementing new water fluoridation schemes. The basic purpose would be to ensure that the Government get on with this, establishing more schemes and spreading the benefits across the entire community as soon as possible. I beg to move, and hope that I have met the noble Baroness’s test.
Baroness Northover (LD)
My Lords, I will speak in support of Amendments 260, 261 and 262 in the name of the noble Lord, Lord Hunt, on water fluoridation.
The NHS rightly prides itself on being evidence-based. Nevertheless, when Ara Darzi became health Minister, he was concerned that, in a number of areas such as the treatment of diabetes, there was not a full assessment of regular outcomes, as opposed to the fantastic clinical trials on new treatments for specific diseases. Hence, he introduced his atlas of outcomes. It showed, for example, absolutely unacceptable different outcomes for diabetes if you lived in Cornwall—where you were more likely to lose a leg—compared with Essex. There were serious lessons to be drawn from that, which needed to be applied in other areas, too.
Lord Reay (Con)
My Lords, I have added my name in opposition to Clauses 147 and 148 standing part of the Bill—tabled by my noble friend Lady McIntosh of Pickering and supported by the noble Baroness, Lady Jones of Moulsecoomb. These clauses enshrine the Government’s intentions to expand the rollout of water fluoridation throughout the UK. In case the House should decide that they remain, I will also speak to Amendments 259B and 259D in my name, which would make the implementation of the policy conditional on an environmental impact assessment and the analysis of recent US Government-funded, peer-reviewed studies.
My noble friend Lady McIntosh apologises for not being present in the Chamber today, as she has been pinged. However, she wanted me to convey her support of Amendments 259B and 259D.
It is most unfortunate that the important topic of water fluoridation has not been granted a full debate of its own in this House. That it has been slipped in by these back-door clauses does a huge disservice to the issue and detracts from the important debate over the Health and Care Bill itself. These clauses in effect ride roughshod over the current status quo on water fluoridation in terms of legal precedent; they also ignore the existence of effective alternative strategies for fighting tooth decay, as practised not only in Scotland but in most other countries in the world.
While roughly 10% of the population lives in artificially fluoridated communities, it is true that no areas have been added since the late 1980s. Successive Governments have tried to increase the coverage but have failed, including in Southampton a few years ago, because the measure meets stubborn resistance from local communities, who do not wish to be mandated to drink fluoridated water. In Scotland, Lord Jauncey in the case of McColl v Strathclyde Council 1983 concluded that fluoridation amounted to illegitimate medical treatment via the public water supply. Since then, the health service in Scotland has focused on other measures to improve children’s oral health, with a considerable degree of success.
The government policy paper used to support the insertion of these two unfortunate clauses appears to report only what the fluoridation proponents want Ministers to hear: namely, that the practice benefits teeth and poses no threat to the rest of the body. However, four high-quality US Government-funded studies published since 2017, all peer reviewed, looked at the effects on the brain. Each one reached concerning conclusions. The first of these studies, by Bashash et al, appeared in the high-impact journal Environmental Health Perspectives in 2017. This mother-child cohort study showed a four-to-five-point loss of IQ in offspring associated with maternal fluoride intake, typically experienced in a fluoridated community. Some 300 mother-baby pairs were followed for 12 years, with a mother’s fluoride exposure measured directly via urinary fluoride level, and the paired offspring’s IQ was measured at four, and at six to 12, years of age.
Since this study a further three, similarly robust US- Government funded studies—Bashash 2018, Green 2019 and Till 2020—all point in the same direction: damage to the infant brain, IQ loss, and/or increased ADHD symptoms associated with fluoride exposure at the doses experienced in artificially fluoridated communities—which, I might add, were at lower fluoridation levels than those considered for the UK, with 0.7 ppm versus 1 ppm. According to Dr Philippe Grandjean from Harvard University,
“Fluoride is causing a greater overall loss of IQ points today than lead, arsenic or mercury.”
Another recent study in 2015 by Professor Stephen Peckham, an adviser to the Select Committee on Health and Social Care, chaired by Jeremy Hunt, showed that incidences of hyperthyroidism are nearly twice as likely to report high prevalence in the West Midlands, which is a fluoridated area, in comparison to non-fluoridated Greater Manchester. Professor Peckham’s study has been omitted from the policy paper’s references. So, too, has the conclusion of the important 2015 Cochrane review, which found as follows: no strong evidence that fluoridation reduced tooth decay in adults; no strong evidence that tooth decay increased when fluoridation was halted in a community; and, contrary to claims from promoters that fluoridation helps low-income children, it found:
“There is insufficient evidence to determine whether water fluoridation results in a change in disparities in caries levels across”
socioeconomic status. All these scientific findings are extremely important, but I find it very worrying that they appear either to have been ignored or dismissed by the authors of this policy paper. Amendment 259D commits the Government to have these four US studies reviewed by expert toxicologists.
I turn to the matter of why fluoride in the UK is not considered a medicine when the WHO has recently classified it as such. Why do the Government refuse to do the same? They contend that water fluoridation has a medical benefit in terms of reduced tooth decay. Could it be that by defining fluoridation water as medicine, the Government then submit themselves to regulation and scrutiny? The MHRA is responsible for the licensing requirements for medicinal products. If fluoridated water were treated as a medicine, individuals would then have the absolute right to refuse the administration of water fluoridation by choice, and industrial-grade fluoridating chemicals would not be allowed. Of course, if it were defined as a medicine, it could not be administered without consent. When fluoride is delivered via toothpaste, the individual has a choice in the matter. When it is carried through the public water supply, there is no individual choice and the ingested fluoride goes to every tissue in the body, including those of the unborn child. This is particularly unfortunate for lower-income families, who cannot take avoidance measures such as bottled water or filters. Moreover, there is no assessment of individual health, size, dose, physical and mental state. Contrary to the direction of modern medicine, whereby treatments are increasingly tailored to the individual, water fluoridation is a crude, one-size-fits-all strategy.
The legality of the Government’s determination to avoid defining water fluoridation as medicine is questionable. The Supreme Court of Canada in the Municipality of Metropolitan Toronto case in 1957 held that fluoridation was using the water supply for a medicinal purpose, which was separately reaffirmed by Lord Jauncey years later. The Lord Jauncey decision explains why Scotland has no communities with artificial fluoridation. The Scottish health department, to its credit, instead has developed an exciting programme called Childsmile. This is a programme of early education on both dental hygiene and diet. It involves both schools and parents and has proved successful and cost effective. Not only has dental decay been reduced but the overall health of children in terms of fighting sugar consumption and obesity has been improved. This programme is relevant to the cut and thrust of the Bill but it has been ignored in the policy paper. Given the success of Childsmile in Scotland, can the Minister say whether the Government will consider a rollout of this programme throughout the UK?
It is conservatively estimated that only 2% of the water supplied by water companies is consumed by domestic users. This would mean that 98% of the water containing fluoride would re-enter waterways, with the potential for damaging plant and aquatic life and entering the food chain. Under the EU dangerous substances directive, fluorides are classified as deleterious to the aquatic environment. Last month, the Environmental Audit Committee in the other place published a report concluding that a chemical cocktail is polluting English rivers and putting public health and nature at risk. We must refrain from adding fluoride to the toxic mix. I add that, in addition to the toxicity of fluoride itself, contaminants such as lead and arsenic are often present in the industrial-grade fluoridation chemicals used. These frequently derive from the hazardous waste of the phosphate fertiliser industry. Given the repercussions for the environment, our waterways, animals, fish and other wildlife from this policy, it seems surprising that Defra does not appear to have been involved in the decision-making process for water fluoridation. Perhaps the Minister can explain why.
Last year, we heard the Secretary of State for Health and Social Care announce that £10 million will be charged to water bill-payers for the rollout of water fluoridation. However, I suggest that it will cost taxpayers considerably more. Greater Manchester has around 22 treatment plants, which would need to be refitted for £1 million to £2 million each. Using a back-of-the-envelope calculation, to cover parts of the UK not already fluoridated will conservatively cost in excess of £300 million, excluding chemicals or running expenses. The policy paper fails to reveal how much the proposals will actually cost.
Perhaps the Minister can share with us the forecasted costings of rolling out water fluoridation throughout the UK in terms of plants, chemicals and other extraneous expenses. In addition, have Her Majesty’s Treasury, the Public Accounts Committee or any respected independent bodies such as the Office for Budget Responsibility or the IFS scrutinised the real costs and their effect on the public finances and health budget? Will these unknown extra costs be met by cuts to NHS dental departments or other parts of the health budget? This money would be far better spent on early intervention on dental hygiene and diet, as in the Scottish Childsmile programme.
Sue Gray Report
(2 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, with the leave of the House I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“First, I want to express my deepest gratitude to Sue Gray and all the people who have contributed to this report, which I have placed in the Library of this House and the Government have published in full today for everyone to read. I will address its findings in this Statement but first I want to say sorry. I am sorry for the things we simply did not get right and sorry for the way this matter has been handled. It is no use saying that this or that was within the rules. It is no use saying that people were working hard. This pandemic was hard for everyone. We asked people across this country to make the most extraordinary sacrifices—not to meet loved ones, not to visit relatives before they died—and I understand the anger that people feel.
But, Mr Speaker, it is not enough to say sorry. This is a moment when we must look at ourselves in the mirror and we must learn. And while the Metropolitan Police must yet complete its investigation—and that means there are no details of specific events in Sue Gray’s report—I, of course, accept Sue Gray’s general findings in full, and above all her recommendation that we must learn from these events and act now.
With respect to the events under police investigation, she says:
‘No conclusions should be drawn, or inferences made from this other than it is now for the police to consider the relevant material in relation to those incidents.’
But more broadly she finds that:
‘There is significant learning to be drawn from these events which must be addressed immediately across Government. This does not need to wait for the police investigations to be concluded.’
That is why we are making changes now to the way Downing Street and the Cabinet Office run so that we can get on with the job: the job that I was elected to do, and that this Government were elected to do.
First, it is time to sort out what Sue Gray rightly calls the ‘fragmented and complicated’ leadership structures of Downing Street, which she says
‘have not evolved sufficiently to meet the demands of’
the expansion of No. 10. We will do that, including by creating an Office of the Prime Minister, with a Permanent Secretary to lead No. 10.
Secondly, it is clear from Sue Gray’s report that it is time not just to review the Civil Service and special adviser codes of conduct wherever necessary to ensure they take account of Sue Gray’s recommendations but also to make sure those codes are properly enforced.
Thirdly, I will be saying more in the coming days about the steps we will take to improve the No. 10 operation and the work of the Cabinet Office, to strengthen Cabinet government and to improve the vital connection between No. 10 and Parliament.
I get it and I will fix it. And I want to say to the people of this country: I know what the issue is. It is whether this Government can be trusted to deliver. And I say yes, we can be trusted—yes, we can be trusted to deliver. We said that we would deliver Brexit, and we did. We are setting up freeports across the whole United Kingdom. I have been to one of them today which is creating tens of thousands of new jobs. We said we would get this country through Covid, and we did. We delivered the fastest vaccine rollout in Europe and the fastest booster programme of any major economy, so that we have been able to restore people’s freedoms faster than any comparable economy.
At the same time, we have been cutting crime by 14%, building 40 new hospitals and rolling out gigabit broadband, and delivering all the other promises of our 2019 agenda, so that we have the fastest economic growth in the G7. We have shown that we can do things that people thought were impossible, and that we can deliver for the British people. The reason we are coming out of Covid so fast is at least partly because we doubled the speed of the booster rollout.
I can tell the House and this country that we are going to bring the same energy and commitment to getting on with the job of delivering for the British people, and to our mission to unite and level up across this country.
I commend this Statement to the House.”
Lord Collins of Highbury (Lab)
I am grateful to the noble Baroness for repeating today’s Statement by the Prime Minister—a Statement that, for anyone who heard it for the first time around, came across ever so briefly as an apology before moving along to its primary purpose: a thinly veiled attempt to lay the blame on others and move the news agenda on; a desperate attempt that will fool nobody who has read Sue Gray’s report and who understands the serious implications of the fact that the Metropolitan Police has 12 cases of concern that it believes reach the threshold of potential criminality. These cases include evidence of serious and flagrant breaches of lockdown, including one party that Mr Johnson definitely attended and another in his Downing Street flat—he refuses to say whether he was there or not. We also now know that the police have 300 photos and over 500 documents in relation to these cases.
We are thankful for Sue Gray’s diligence and professionalism in carrying out her investigation, but the Prime Minister must keep his promise to publish the full report when it is available. I therefore ask the noble Baroness the Leader, on behalf of all in your Lordships’ House, to encourage him to do so and respond to me in writing when she has done so. We are all aware of the deep sacrifices made by many people in our country over the past two years. Anyone with a shred of decency will know what that involved; the missed time with loved ones and close friends, not being there at key moments in the calendar of life and death. Anyone who has had a conversation with friends or family in recent weeks about those missed events will know that guilt abounds among those who were not willing to take a chance during their moments of deep despair. They did not want to risk breaking or bending lockdown rules—not even in the darkest of times.
That is why the revelations of misbehaviour at No. 10 are so appalling—and with them, the Prime Minister’s attempt to distance himself from what happened on his watch, under his lockdown rules. As my right honourable friend Keir Starmer said earlier this afternoon:
“Our national story about covid is one of a people who stood up when they were tested, but that will be forever tainted by the behaviour of this Conservative Prime Minister.”
Mr Johnson has tried to take the public for fools, and even now is playing for time, trying to kick the can down the road until the police conclude their investigation. That is a protective shield, temporary or otherwise, which flies in the face of the honesty, integrity and moral authority that the office of Prime Minister expects. Is anyone really surprised by any of this? Is the Leader of the House herself surprised—or does she want to vouch for his character?
In his Statement today the Prime Minister said that
“it is clear from Sue Gray’s report that it is time not just to review the civil service and special adviser codes of conduct, wherever necessary, to … take account of Sue Gray’s recommendations, but to make sure that those codes are properly enforced”.
That is a clear attempt by Mr Johnson to try to apportion blame elsewhere. However, this is not just about codes of conduct being broken but, as the report itself makes apparent, it was also a failure of leadership—an issue not just of structures in the workplace but of the culture.
Does the Leader of the House not agree that breaking such codes is not the whole picture? It is also the failure of those in leadership positions, including the person at the top, to ensure adherence and enforcement. Perhaps the Prime Minister’s own failure to deal with the Home Secretary breaking the Ministerial Code signalled to others working at No. 10 that codes and rules are little more than an inconvenience to how they should conduct their business.
Mr Johnson’s close allies are, like him, keen to move on to other issues both at home and abroad. Yet this afternoon we heard reports that a vital telephone call with President Putin was cancelled—as the West faces its gravest threat to peace in decades. I hope that the Leader of the House can assure noble Lords that these reports are incorrect, and that the call went ahead as planned.
It will be said that Sue Gray’s report is a distraction—but let us not forget what, and who, is at the root of this. A Prime Minister who is having to make statements in Parliament on the back of an investigation into potential criminal behaviour by his staff and himself, during a pandemic whose legal restrictions they designed. That is the issue at hand, and it goes to the heart of Mr Johnson’s character and his suitability for high office.
Lord Newby (LD)
My Lords, I suspect that the noble Baroness the Leader of the House can never have been so uncomfortable in repeating a Statement by the Prime Minister as when she read out the Statement today—because it is truly abject. It relates to 16 gatherings in Downing Street at a time when such events were not allowed for the rest of us, 12 of which are the subject of an ongoing criminal investigation by the police.
Although the Gray report contains no factual evidence and is, in substance, only six pages long, its conclusions are damning. They are that some of the gatherings, at least, represent
“a serous failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.”
It talks of
“failures of leadership and judgment”.
It states:
“Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”
It says:
“The excessive consumption of alcohol is not appropriate in a professional workplace at any time.”
It says that the use of the Downing Street garden was “not appropriate”.
If this were any other institution—a school, a hospital, or a professional services firm—these conclusions, coupled as they are with an ongoing police investigation, would have led to the suspension or dismissal of the head of the institution. That action would be taken because the leader of any other institution has to take responsibility for the ethos of that institution, even if they themselves did not break the rules. In this case, however, not only was the ethos wrong, but the Prime Minister appears to have broken the rules himself.
Far from resigning, however, the Prime Minister thinks that saying sorry, tinkering with the Downing Street structure and amending the Civil Service Code is enough. He says that the only issue facing him, and the country, is whether the Government can be trusted to deliver on their policy programme. But it is not. The question is whether the Prime Minister can be trusted to behave ethically and in accordance with the rules. Because if he cannot, he is not fit for office. It is as simple as that.
The report shows that, in advance of any judgment by the police, the Prime Minister has presided over multiple breaches of the rules. By breaking his own rules, he loses any capacity to persuade others—whether that be individual citizens or the President of Russia—to take his injunctions to follow the law seriously. To put it another way, he loses the capacity to govern.
The Leader of the House is an extremely invidious position, because she is having to answer questions on what is, in reality, a personal statement by the Prime Minister about his own probity—for which she can hardly be held responsible. So I shall ask her only three questions. First, as the lack of leadership shown over this affair starts at the top, in addition to the Civil Service Code will she enjoin the Prime Minister to amend the Ministerial Code, to tighten up the rules for Ministers, and not just for the officials whom they are supposed to lead?
More importantly, the noble Baroness is a member of the Cabinet. Her job is to proffer her views to the Prime Minister and then, under the rules of collective responsibility, to follow Cabinet decisions. But I think she also has an obligation to your Lordships’ House to let us know where she stands. Does she believe that the failures of leadership shown by the Prime Minister justify her resignation? I am sorry, I meant “his resignation”; I do not hold the noble Baroness responsible for the sins of the Prime Minister. Does she think those failures justify his resignation? And if not, on what basis does she believe the British people can ever trust him again?
Baroness Evans of Bowes Park (Con)
I thank noble Lords for their comments. May I first wish the noble Baroness, Lady Smith, well, and hope she gets better soon? I thank the noble Lord, Lord Collins, for stepping in at such short notice.
In response to both noble Lords, I say that the Prime Minister has apologised. He has made it clear that he understands people’s anger, as he should, and that he wants to get on with the job of starting to implement the immediate findings of Sue Gray’s report. He has said he takes full responsibility; he has apologised; he is committed to making changes to address these issues; and he will work tirelessly to regain people’s trust.
The noble Lord, Lord Collins, asked about the publication of further material once the Met investigation has finished. Of course, it would not be appropriate for me to comment further while the investigation is ongoing, and the Prime Minister has said that at the end of the process he will ask Sue Gray to update her work in the light of what is found. He will publish that update, but he has been clear that we cannot judge an ongoing investigation, and his focus now is on addressing the general findings.
Both noble Lords referred to some of the findings in the Gray report, which are extremely uncomfortable and disappointing. We have accepted all the findings in full, including, as the noble Lord said:
“There were failures of leadership and judgment by different parts of No. 10 and the Cabinet Office at different times.”
That is why the Prime Minister has already announced the beginnings of some work to try to address that.
The noble Lord, Lord Newby, asked about the Ministerial Code. We are carefully considering the reports by the Committee on Standards in Public Life, the report by Nigel Boardman and other reports from Parliament and, as laid out in correspondence with the noble Lord, Lord Geidt, from December 2021, the Prime Minister will be discussing further how the independent adviser’s office can be better supported and ensuring that it has access to appropriate information when conducting its work. The Prime Minister has asked the noble Lord, Lord Geidt, to work with officials to provide advice on this issue and we have pledged to conclude this by March.
As I have said, I cannot comment on an ongoing police investigation and I will not prejudge its findings, but I certainly assure the noble Lord, Lord Collins, that the Prime Minister is leading international action on Ukraine. I set out in a Statement that I repeated last week all the engagement and conversations that he has had and how we are leading in various international forums. It continued to be his primary focus and I am sure that in the next couple of days your Lordships’ House will have the opportunity to discuss the Statement that my right honourable friend the Foreign Secretary made this afternoon in the House of Commons on this very subject.
Lord Browne of Ladyton (Lab)
My Lords, in paragraph 14 of this update, we learn why this is a minimalist report at the request of the Metropolitan Police so as not to prejudice their investigations. In paragraph 13, we learn that Sue Gray has been instructed and has undertaken to store and safekeep all the information gathered
“until such time as it may be required further”,
and to keep it “in confidence”. In answer to a question in the other place, the Prime Minister, in avoiding giving an undertaking to publish an unredacted version of the full report, clearly referred to—although I do not have the Hansard, so I may not get the words exactly right—legal considerations about one account that had been given to Sue Gray. There were legal considerations about it that prevented him giving that undertaking was the inference to be drawn from his answer. Who has been talking to the Prime Minister about accounts that witnesses have given and how does he know that?
Baroness Evans of Bowes Park (Con)
As I have said, I cannot comment on the ongoing Met investigation, but what I can say is that the Prime Minister has said—or the Government have now said—that at the end of the process, following the Met investigation, the Prime Minister will ask Sue Gray to update her work in the light of what is found and we will publish that update.
Baroness Bottomley of Nettlestone (Con)
My Lords, I think the House will agree that if the Labour, Liberal or Conservative parties fund anyone’s work, that is a matter for them, but anyone who is funded by the taxpayer should comply with the Nolan principles—the Seven Principles of Public Life—of selflessness, integrity, objectivity, accountability, openness, honesty and leadership. There seems to have been a distinct lack of coherence and those cultural values. Can the Minister comment on whether she feels that the balance has changed too far, with those working in No. 10 being short-term political appointments rather than longer-term civil servants with greater judgment who can exercise that discretion in very difficult circumstances?
Baroness Evans of Bowes Park (Con)
The Prime Minister has said that he will act and make changes to the way that No. 10 and the Cabinet Office are run. I do not want to prejudge that, but he has said that in the coming days we will say more on this matter and I will be happy to update the House when that happens.
Lord Kerslake (CB)
My Lords, there is a certain irony in the fact that the very seriousness of the events has prevented us from getting the report from Sue Gray that we were all expecting. Even without the detail, the general findings are utterly damning. Does the Minister recognise that this is as appalling and shocking to the vast majority of civil servants as it is to the public? Can she also say whether she agrees with those who seek to, in my view, trivialise the issues by talking about prosecco parties when we should be talking about Putin? This goes to the heart of government and whether the Government can be trusted to do the right thing and tell the truth. It is hard to think of anything more important than that.
Baroness Evans of Bowes Park (Con)
I certainly hope that the noble Lord does not think that I am trivialising anything; I certainly am not. As I say, in his Statement and repeatedly, the Prime Minister has apologised. He understands people’s anger, quite rightly, and he wants to get on to the job of starting to implement Sue Gray’s findings, which I think is an important step now to move on while we have to wait for the ongoing investigation by the Met.
Lord Wallace of Saltaire (LD)
My Lords, may I reinforce what has been said already about the Civil Service? This is a failure of leadership, and of political leadership. I thought that the article yesterday by the noble Lord, Lord Hannan—who is sadly not in his place at the moment—which blamed the Civil Service, and very much dismissed the efficiency of the Civil Service, was disgraceful in this context.
Can I also ask about the statement on making sure that the codes are properly enforced? In her first reply, the Leader of the House referred to reconsidering how they might be better enforced but, as we all know, the enforcement of those codes depends on the Prime Minister himself. Are we now at last going to move to what the Committee on Standards in Public Life has recommended, which is statutory independence for these regulators, including the Prime Minister’s independent adviser, or are we just going to go on with a situation where we have to trust that the Prime Minister will please himself and those around him when necessary?
Baroness Evans of Bowes Park (Con)
As I answered in response to the noble Lord, Lord Newby, who asked a similar question, we are carefully considering the reports by the Committee on Standards in Public Life, the report by Nigel Boardman and other reports that have been published. I also said that, in correspondence with the noble Lord, Lord Geidt, the Prime Minister will be discussing further how the independent adviser’s office can be better supported and ensuring that it has access to appropriate information. The Prime Minister has asked the noble Lord, Lord Geidt, to work with officials to provide this advice, and the Government have pledged to conclude this by March.
Lord Cormack (Con)
My Lords, we should all be grateful to my noble friend for delivering this very shameful Statement with such dignity. We must also recognise that the leadership of any campaign must be from the elected House. However, would it not be reasonable to say that what this Statement from the Prime Minister amounts to is, very simply, mea culpa?
Baroness Evans of Bowes Park (Con)
Certainly, the Prime Minister makes clear in his Statement, and says explicitly, that he is sorry for things that have been got wrong and for the way that things have bene handled and he understands people’s anger. That is why he has accepted in full the initial findings of this Gray report and wants to get on straight away with implementing changes to address them.
Baroness McIntosh of Hudnall (Lab)
My Lords, the noble Baroness has attempted to answer the question from the noble Lord, Lord Cormack, to the best of her ability, I have no doubt. But would she agree that, when the report refers to “failures of leadership”, it is not clear from what the Prime Minister said in his Statement that he understands or accepts that his own leadership is included among those failures? It would be helpful if the noble Baroness could assure the House—again, to the best of her ability—that he does understand that. If he does, what implications follow from that? I think that is really the question that we are not yet able to answer.
Baroness Evans of Bowes Park (Con)
The Prime Minister has said that he takes full responsibility; he has repeatedly apologised and, as this Statement shows, is committed to making changes to address these issues. Hence, as I mentioned, he is going to look at changes to the way that No. 10 and the Cabinet Office are run, creating an office of the Prime Minister with a permanent secretary and a review of various codes, as discussed. He has said that he will say more in the coming days about the steps being taken to improve the No. 10 operation and the work of the Cabinet Office, to strengthen Cabinet government and to improve the connection between No. 10 and Parliament. He has certainly said that he takes these matters extremely seriously.
Lord Forsyth of Drumlean (Con)
My Lords, is that not where it has all gone wrong? This is not something that started with this Prime Minister—the way in which the role of Cabinet government has been eroded and the relationship with the Civil Service. I can remember being in government and, if Robin Butler—the noble Lord, Lord Butler of Brockwell—said “Jump”, you jumped, because there was respect for the Civil Service. Now we have got into a situation where we have special advisers—many of whom have never had a proper job—telling Secretaries of State what to do. We really need to go back to the principle that Secretaries of State are in charge of their departments, the Prime Minister is first among equals, and we have respect for the Civil Service and do not try to blame officials when things go wrong.
Baroness Evans of Bowes Park (Con)
I certainly agree with my noble friend that there should be no finger-pointing. As the Prime Minister said, we need to look in the mirror and learn for ourselves. However, I would push back slightly on my noble friend’s characterisation of special advisers, not least because I am married to a former one. That is not a fair assertion across the piece. There are of course things we need to learn and ways in which we need to work better. This Statement makes that clear, and we now all need to work together and move forward to make sure we can implement the changes that are needed, in order to ensure that lessons are learned from what we have discovered.
Lord Butler of Brockwell (CB)
My Lords, I do not fully recognise the picture portrayed by the noble Lord, Lord Forsyth, in relation to myself, but I am deeply saddened by the portrait of 10 Downing Street in Sue Gray’s report. I welcome the proposal to create a Permanent Secretary post to lead No. 10. Can the noble Baroness assure us that this will be a permanent Civil Service post with unambiguous authority over both special advisers and civil servants?
Baroness Evans of Bowes Park (Con)
I am afraid that the noble Lord may have gone a few steps ahead of what I am able to say today. This is a commitment to create an office of the Prime Minister with a Permanent Secretary to lead No. 10. No doubt there will be a lot of discussions, including with distinguished people who have expertise in this area, such as the noble Lord himself, to make sure that we get the right structure going forward, which is something we all want to achieve.
Lord Paddick (LD)
My Lords, I am very concerned by the Prime Minister’s phrase that he will invite Sue Gray to update her findings once the police investigation has concluded. Is the Prime Minister expecting, or should I say hoping, that the Metropolitan Police will establish alternative facts to those established by Sue Gray?
Baroness Evans of Bowes Park (Con)
No, the Prime Minister has been quite clear that, at the end of the process, he will ask Sue Gray to update her work in light of what has been found, and it will be published.
Lord Robertson of Port Ellen (Lab)
My Lords, one of my predecessors as Secretary-General of NATO was Lord Carrington. During the Falklands War, although he bore no direct responsibility for the invasion of the Falkland Islands, in honour and in dignity he took full responsibility and resigned as Foreign Secretary of this country. Does the noble Baroness not think that the Prime Minister might like to follow the example of that great Conservative?
Baroness Evans of Bowes Park (Con)
As I say, the Prime Minister has apologised and said it is entirely right for the police to investigate these matters. We now need to wait for the results of that investigation.
Lord Lansley (Con)
My Lords, Sue Gray’s report did not extend to the question of what was said to the House of Commons by the Prime Minister in relation to these events over a number of months. Could my noble friend say when and by what means the Prime Minister is proposing to correct the record for the House, when it was inadvertently or otherwise misled?
Baroness Evans of Bowes Park (Con)
At all times, the Prime Minister has set out his understanding of events. He has taken full responsibility and apologised. He wants to make changes to address these issues and will work tirelessly to regain people’s trust.
Baroness Wheatcroft (CB)
My Lords, the Sue Gray report, even in its redacted form, is very critical of what went on at No. 10. The Leader has repeatedly said that Boris Johnson accepts full responsibility for what took place. We are now led to believe that several heads will roll as a result, but not, it seems, that of the Prime Minister. I wonder whether the Leader could say whether that seems right.
Baroness Evans of Bowes Park (Con)
As I have said, the Prime Minister has taken full responsibility and is working to address these issues. I cannot comment on an ongoing police investigation and am not going to prejudge its findings.
Viscount Stansgate (Lab)
My Lords, when the sorry episode of this Government comes to be written, one of the parts of today’s Statement that will attract a great deal of interest is that which says that the Government intend to set up an office of the Prime Minister. I would like to follow the point made by the noble Lord, Lord Butler. We are a parliamentary democracy, and a Prime Minister is primus inter pares. The development outlined in this Statement indicates that the Government are thinking of moving towards a much more presidential style, with a proper office of the Prime Minister at No. 10. In view of the long-term potential significance of this, will the Leader find time for a debate in government time in this House so we can explore the constitutional, longer-term implications of what is being proposed?
Baroness Evans of Bowes Park (Con)
I am sure there will be a lot of discussions around this issue.
Lord Warner (CB)
My Lords, could the noble Baroness say a little more about the setting up of a new regime in No. 10? Will Parliament be involved in any way in the selection and approval of the Permanent Secretary to head the Prime Minister’s office?
Baroness Evans of Bowes Park (Con)
As I said to the noble Lord, Lord Butler, I am afraid that some of these questions are jumping ahead. What I can say is what I have already said: that the Prime Minister has said he will create an office of the Prime Minister, with a Permanent Secretary. He has also said that “in the coming days”, he will say more about the steps being taken
“to improve the No. 10 operation and the work of the Cabinet Office, to strengthen Cabinet Government, and to improve the … connection between No. 10 and Parliament.”
I am afraid I cannot go further than that.
Baroness Rawlings (Con)
My Lords, this afternoon the Prime Minister answered many questions by saying, “We will wait until the Metropolitan Police report is published”. I wonder whether we have any idea when it might be published.
Baroness Evans of Bowes Park (Con)
The Metropolitan Police put out a statement this afternoon in which it said it was working “at pace”, but it did not give a specific timescale. I am afraid that I cannot say more than that, but it has confirmed what it is investigating. It has had a lot of evidence from the Cabinet Office and is now working at pace to continue the investigation, but I am afraid I do not have a timescale.
Lord Desai (Non-Afl)
My Lords, does the noble Baroness agree that 10 Downing Street and the structure of the Prime Minister’s office is the poorest accommodation of any Prime Minister of the G7, the G20—or the G140? You cannot have a Prime Minister living in a flat with 50 or 60 people running around below, day and night. Not only do we need an office of the Prime Minister, but we need a dignified working environment away from the private home of the Prime Minister which does justice to the complexity of the work and to the dignity of the Prime Minister. We cannot have the Prime Minister living in a top-floor flat with people running around having parties in the evening. Whether he likes it or not, he will be blamed for it. That needs urgent reform. I know it sounds trivial.
Lord Desai (Non-Afl)
I very much want the Prime Minister of the country to be properly housed.
Baroness Evans of Bowes Park (Con)
The noble Lord picks up some of the points made by Sue Gray—for instance, the use of the garden and No. 10 not being able to be made particularly Covid-secure. Some of the points he makes have been recognised. The report also finds that, while
“The number of staff working in No 10 Downing Street has steadily increased”
to the point that
“it is now more akin to a small Government Department… The structures that support the smooth operation … have not evolved sufficiently to meet the demands of this expansion.”
That is what we will look into trying to solve.
The Lord Bishop of Durham
My Lords, I thank the Leader for all she has done so far. I spend time talking to children, and sometimes they cut to the chase. Last week, year 6 children in primary schools said to me, “Do you trust the Prime Minister? Can we trust him?” They were not interested in parties, civil servants and special advisers. It was: can we trust the Prime Minister?
Baroness Evans of Bowes Park (Con)
As the Statement makes clear, the Prime Minister has said to the people of this country that he knows the issue is trust and that we are a Government who can be trusted to deliver. He also understands that we need to work tirelessly to prove that.
Lord Liddle (Lab)
My Lords, setting aside the issue of criminality which is, of course, very important in this matter, can the noble Baroness ever imagine these types of events having occurred during the premierships of Margaret Thatcher, John Major, David Cameron or Theresa May? I certainly know that, from my experience, nothing like this happened under Tony Blair. Is there not something fundamentally wrong about the culture of this Prime Minister’s leadership?
Baroness Evans of Bowes Park (Con)
We have said that the Prime Minister has apologised. He wants to look at making changes. He has taken responsibility and we are now looking at how we can implement these findings in order to address many of the concerns that have been expressed.
Lord Scriven (LD)
My Lords, a very reasonable person on the number 82 bus in Sheffield will ask this very basic question: how does tweaking the structures of No. 10 change the way a leader at the top exercises their personal judgment and allows rule-breaking to take place on their watch?
Baroness Evans of Bowes Park (Con)
As I have said, the Prime Minister has said that he is sorry for things that have been got wrong and for the ways that things have been handled. He understands the anger of people. What we want to do now is to address some of these issues but most importantly get on with delivering on the agenda that people voted for in 2019 and make sure that we deliver on the things on the ground that people see in their everyday lives in order to improve life for everyone in this country.
Data Protection: Immigration Exemption
(2 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Paddick
That this House takes note of (1) the Data Protection Act 2018 (Amendment of Schedule 2 Exemption) Regulations 2022 and the safeguards to protect individual data subject rights, and (2) the Court of Appeal judgment in Open Rights Group and another v the Secretary of State for the Home Department.
Relevant documents: 25th Report from the Secondary Legislation Scrutiny Committee
Lord Paddick (LD)
My Lords, I have asked that these regulations be brought to the attention of the House to highlight what appears not to be an isolated incident of the courts ruling against the Government, requiring the Government to change the law, and the Government not complying fully with the court’s findings. In such circumstances, the only course of action is for a further case to be brought against the Government in the courts to rectify the situation, which clearly costs both time and money and needs non-governmental organisations or philanthropists to bring such an action. Such contempt for the courts should be drawn to the attention of the House, hence this Motion.
Liberal Democrats opposed the immigration exemption when we debated the Data Protection Act in 2018. The Government sought to exempt data controllers and let them bypass and restrict fundamental data rights if officials believed compliance with data protection law was prejudicial to the maintenance of effective immigration control through what has become known as the immigration exemption. This could be used by the Home Office to withhold information from those applying for leave to remain in the UK, for example, hampering their ability to challenge Home Office decisions to withhold permission.
The Court of Appeal decided the immigration exemption contained inadequate safeguards to protect individual data subject rights and was therefore incompatible with the UK GDPR. This SI is an attempt to comply with the judgment. Legal minds greater than mine say that this statutory instrument does not bring legislation into line with the Court of Appeal judgment. The court said greater safeguards needed to be incorporated into legislation and not just placed in guidance, but that is exactly what this SI proposes to do. The court said legislation needed to be clear and precise; not simply the withholding of information which is in the interests of immigration control. The court said the consequences of the law must be foreseeable to those it is likely to affect, unlike this SI that relies on guidance that can be changed at any time, without notice and without parliamentary scrutiny.
I understand the Home Office has been distracted—have not we all?—by the Police, Crime, Sentencing and Courts Bill and the Nationality and Borders Bill. The Minister will no doubt agree with me that we need this Motion like a hole in the head, but we will not allow the totally unreasonable tabling of government business to prevent us from bringing matters to the attention of the House when we believe the Government are not complying with the orders of a court. I beg to move.
Baroness Hamwee (LD)
My Lords, it is disappointing that the procedures of your Lordships’ House effectively precluded us from voting on this SI. When we debated the draft in Grand Committee, we said that we would table a regret Motion but the Government were, of course, aware of the 31 January deadline for producing a measure in response to the Court of Appeal and apparently there was no time for a regret Motion and the usual channels arranged for this take-note Motion.
The Government are obviously proper in complying with the court order in the timing, if not the content, but Parliament should have seen the draft SI earlier, had an opportunity not only to scrutinise it but to debate what it took from that scrutiny and to vote on it. I have drawn this to the attention of the chair of the Secondary Legislation Scrutiny Committee, given that committee’s and the Delegated Powers and Regulatory Reform Committee’s focus at the moment on procedures.
We are all aware of the deficiencies when we deal with secondary legislation. We knew that we would not win a vote in the Chamber because the Labour spokesman in Grand Committee supported the regulations, although we were grateful that he agreed with much of what we said during that debate. We wanted again to put our opposition on record. I thank the Minister for her explanation of the SI during that debate and I will try not to repeat too much of what was said then but will focus on the Minister’s remarks.
The Court of Appeal required the Government to amend the Data Protection Act to remedy its incompatibility with retained EU law so that it satisfies requirements of Article 23(2) of the UK GDPR. The declaration was suspended until today to provide a reasonable time to do so. That judgment was, I think, in October so they have had plenty of time. Although this is an SI amending the Act, it does not achieve that objective. The Secretary of State must have regard under the SI to the “immigration exemption policy document” and a draft IEPD was published at the same time as the draft SI.
That policy document can be amended. It can be replaced. It is not primary legislation. It is not secondary legislation. It is not legislation at all. It is not even unamendable legislation—secondary legislation cannot be amended. It is not a “legislative measure” within the terms of Article 23(2) which the Court of Appeal described as “remarkably specific”. It is not “part and parcel” of the legislation. It is not even a code of practice or a codification of safeguards; it is simply a policy document. Parliament cannot carry out a scrutiny function in which the outcome may, in theory, be changed even if we know the realities of dealing with secondary legislation. Parliament can play no meaningful part.
In Grand Committee, I asked the Minister how the policy document builds on previous arrangements, as it appears simply to repeat existing safeguards, and also for details of the Government’s consultation with interested parties and how the issues raised in consultation have been dealt with. I am grateful to her for the letter I received this afternoon, by email, in response to this—she said she would let me have the detail if it was not data protected. I am glad to note that some points were taken on board—but not all, quite clearly, because those with whom she consulted were those who brought the case to court. She said that
“the Department published the IEPD in draft form alongside the draft Regulations on the 10th December … enabling stakeholders the opportunity to consider its contents and to comment accordingly.”
Given that this policy document is central to the arrangements, I am surprised that not publishing it could ever have been thought to be an option.
In response to my question in Grand Committee, as to how one should challenge the Home Office if one does not know what it knows, or thinks it knows, to rectify errors—how would you rectify errors if you do not know that there are errors?—the Minister said that the exemption did not restrict the right to seek rectification of inaccurate data. That does not answer the question; it merely makes that question even more important. She also said that the exemption could not be used to prevent a person establishing a legal claim—which also begs the question.
It is not in contention that this data is very significant. Lord Justice Warby said the exemption
“plays a significant role in practice as a brake on access to personal data”—
one’s own data. He referred to Home Office evidence that the exemption was relied on in 59% of responses during the period in question, and that the exemption was available in a wide range of cases. The Minister in Grand Committee made much of how limited its use is and that only the minimum is redacted—only small parts of documents that contain sensitive data that could affect operations. So, I have a request and suggestion that the Home Office, in the current version of the policy document, in paragraph nine, which is a checklist for users—that is, caseworkers—should add to the list that there should be the minimum redaction. That may be implied by other parts of the document, but what caseworkers consider is crucial, and paragraph nine is what they will go to. Can the point that she made, and on which she relied, about the minimum redaction not be spelled out clearly in the checklist? I support my noble friend.
Lord Clement-Jones (LD)
My Lords, I want—briefly—to supplement the remarks of my noble friends. As I said in Grand Committee, I commend my noble friend Lady Hamwee for her consistent and determined opposition to this immigration exemption. During the passage of the Bill, we were not able to delete the original provisions, but we are quite clear on these benches that this new SI does not at all reflect the safeguards required by the GDPR and by the Court of Appeal’s decision. As I said in Committee, I can only wonder what kind of advice the Minister has had. How has she been able to convince herself that this SI will not meet the same fate as the previous provisions? My noble friends referred to what Lord Justice Warby had to say, and what needs to be done is extremely clear. I do not think there is any need to repeat what my noble friends have said.
It is utterly clear that the provisions being put in place do not comply with GDPR—particularly with Recital 41, and certainly not in the way Lord Justice Warby interpreted that recital. The Home Office, regardless of the law, is going forward with this new proposal with an IEPD which is simply not good enough in terms of its legislative status. As both my noble friends said, it adds nothing in the way of safeguards which were already there.
The Minister seemed to be saying in Grand Committee the Home Office had taken on board the points made by the Open Rights Group and the3million, but that she would ascertain what those points were. Sadly, I have not received a copy of the Minster’s letter, so I do not know what those points are. I hope the Minister will adumbrate those in her response this evening. It is clear that the Home Office is in great danger of having another successful judicial review against it on these regulations.
Despite our best efforts in Grand Committee, the Minister did not deal with the fundamental issue of the mechanism being used to introduce this form of exemption. We were reminded today in the Commons about what Margaret Thatcher said:
“The first duty of Government is to uphold the law. If it tries to bob and weave and duck around that duty when it’s inconvenient, if Government does that, then so will the governed and then nothing is safe—not home, not liberty, not life itself.”
Wise words. Bobbing and weaving and ducking—is that not precisely what the Government are doing on this issue?
Lord Ponsonby of Shulbrede (Lab)
My Lords, we last debated this on 19 January and I thank the noble Lord, Lord Paddick, for bringing this Take Note Motion to the House. To put it on the record, in 2018 the Labour Party opposed the immigration exemption, but, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, accurately said, we voted in favour of the Government’s position regarding the statutory instrument which we considered on 19 January.
I reread the lobbying material we have received from the Open Rights Group and the3million. It is clear that the Court of Appeal suspended the effect of its declaration until 31 January—which is today—and I do not know enough about the procedure of that court, but will we receive some information, maybe through the Government, of the result of that declaration? I can see that both noble Lords are shaking their head.
I thank the Minister for copying me in on the letter she sent to the noble Baroness, Lady Hamwee. It makes clear there was some attempt at consulting the Open Rights Group and the3million, but clearly that discussion did not result in placating those groups. So it may well be that there is a further judicial review or a further challenge by those groups. The noble Baroness, Lady Hamwee, has very fully set out the likely basis for that challenge.
As we said in the aftermath of the debate on the statutory instrument, the noble Baroness, Lady Hamwee, and the noble Lords, Lord Paddick and Lord Clement-Jones, have a lot of experience with this Bill, having debated it in 2018 and having brought the matter back repeatedly since then. We on the Labour Benches will be interested to hear what the Minister has to say. As I said, we originally opposed this element of the Bill and we would be interested to see how confident the Minister is that the changes put forward by the Government will not result in a further challenge.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank noble Lords who have spoken in this debate. As noble Lords will know, paragraph 4 of Schedule 2 to the Data Protection Act 2018 outlines specific rights under the UK GDPR that can be restricted if they would likely prejudice either
“the maintenance of effective immigration control, or … the investigation or detection of activities that would undermine the maintenance of effective immigration control”,
known as the immigration exemption. As noble Lords have pointed out, these regulations amend the immigration exemption, following the judgment in the case of Open Rights Group & another v the Secretary of State for the Home Department. This statutory instrument builds on existing safeguards of individual rights and should be welcomed.
Lord Clement-Jones (LD)
My Lords, if I may interrupt the Minister, Lord Justice Warby’s decision on that is utterly clear about what Recital 41 does require. That is precisely the point of contention.
Baroness Williams of Trafford (Con)
My Lords, it is, but it does not specify by way of form or content of the legislative measure, and that is the point I am trying to make.
Lord Clement-Jones (LD)
But it has to be a legislative measure, not guidance.
Baroness Williams of Trafford (Con)
Perhaps I could reiterate that Recital 41 states that:
“Where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament”.
We will beg to differ on that, but I am just quoting what Recital 41 says.
To address the court’s concerns, the regulations therefore amend the immigration exemption, primarily to include all the relevant matters in Article 23(2)(a) to (h) of the UK GDPR. It might be helpful if I provide some details on those matters that are not relevant and are already covered in the DPA 2018. For those particular matters, no amendments are needed to the legislation, as well as for those matters that are not relevant. I will provide some details on the measures that are relevant and for which amendments have been made.
Before I do that, I point out that the regulations introduced a statutory requirement for the department to have an immigration exemption policy document before the immigration exemption could actually be applied—that is in response to the noble Lord, Lord Paddick. Regulation 2(2)(b) specified what must be addressed in the policy, and the controller must have regard to it. In answer to the noble Baroness, Lady Hamwee, we are working to tighten the deadlines set by the court, and we did publish the IEPD draft on 10 December on GOV.UK.
Continuing now on what is and is not relevant, the following limbs of Article 23(2) are already sufficiently covered in the DPA 2018. Therefore, no amendments will be made to the legislation in relation to those limbs. They are, from Article 23(2):
“(a) the purposes of the processing or categories of processing; (b) the categories of personal data; (c) the scope of the restrictions introduced … (g) the risks to the rights and freedoms of data subjects”.
The requirement under Article 23(2)(f) to make provision in respect of
“the storage periods and the applicable safeguards taking into account the nature, scope and purposes of the processing or categories of processing”
is not relevant, as the immigration exemption does not purport to extend data storage periods, and so no amendments are proposed in this regard.
On amendments made in relation to Article 23(2)(d), including the IEPD, the article states that where relevant there shall be provisions for safeguards to prevent abuse or unlawful access or transfer. This instrument will introduce additional measures to address Article 23(2)(d). It will mandate the Secretary of State to have an immigration exemption policy document in place prior to the exemption being relied on; that they must have regard to their IEPD when applying the exemption; that a record is kept of the application of the immigration exemption; and that the data subject be informed of its application, save in certain circumstances.
The IEPD and any subsequent updates to it will be published in a manner that the Secretary of State considers appropriate. Publication will allow for flexibility, where future concerns arise—I will take back the comments that the noble Baroness, Lady Hamwee, made this evening. There is no requirement to go through Parliament and any future concerns, if they arise, could be addressed in a shorter timeframe.
The regulations also specify what the IEPD must address. This additional measure will promote high standards of safeguards in applying the immigration exemption, consistent with those in relation to personal data relating to criminal convictions and offences. The IEPD explains how the immigration exemption must be operationally applied and the circumstances in which data rights might be exempted. These are set out in clear and precise terms. They will form part of Schedule 2 to the DPA 2018 once in force and, as such, will clearly constitute legislative measures.
Amendments are also made to Article 23(2)(e), on provisions as to the specification of the controller or categories of controllers, and to Article 23(2)(h), which states that where relevant there shall be provisions for the right of a data subject to be informed about the restriction, unless that is prejudicial to the purposes of the restriction—we went through that during the previous debate. The instrument will amend the immigration exemption so that the controller will have to inform the data subject that the exemption has been relied upon unless to do so would prejudice the purpose of the restriction, once again proving our commitment to be as open and transparent as we are able.
I am not sure whether it was the noble Baroness or the noble Lord who asked about the consultation process, but they almost played my words back to me. We consulted the parties to the litigation and the ICO and considered carefully their observations and comments, making amendments to the draft as appropriate, but clearly we did not take everyone’s comments on board, and therefore the court process came into being. We have tried, as far as possible, to address the issues through the IEPD.
I hope that noble Lords are now satisfied—I do not think they are, judging by their faces. I shall leave it there.
Lord Paddick (LD)
My Lords, I am grateful to the Minister for reiterating the Government’s position. I am also grateful to my noble friend Lady Hamwee for her detailed analysis of the issues, my noble friend Lord Clement-Jones for his support, and the noble Lord, Lord Ponsonby of Shulbrede. To quote the Minister, I think we will have to agree to disagree. Sadly, another case appears to be inevitable. I beg leave to withdraw the Motion.
Health and Care Bill
Monday 31st January 2022
(2 years, 10 months ago)
Lords ChamberRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-VII Seventh marshalled list for Committee - (27 Jan 2022)
Lord Ashton of Hyde (Con)
My Lords, before we resume the debate, perhaps I may point out that we went very quickly last Wednesday—many thanks for that excellent performance. The last group also went quickly. May I respectfully point out that we need to do nine and a half groups this evening? Once again, I ask noble Lords to acknowledge how much we still have to do on this Bill and adjust their contributions accordingly if at all possible.
Baroness Bennett of Manor Castle (GP)
My Lords, debate on this group was somewhat interrupted and I will remind everyone that we are talking about dental health. I will speak first to Amendment 224 in the name of the noble Lord, Lord Hunt and others, to which I attached my name. It calls for a statement from the Secretary of State on access to dental care at regular intervals.
This comes back to a point I have made again and again about the Secretary of State taking responsibility and being forced to come before Parliament to take that responsibility. The noble Lord, Lord Hunt, introduced the amendment clearly and I agree pretty well with everything he said. However, I will now start to disagree with him. I note that I am addressing a number of amendments on fluoridation that were signed by my noble friend Lady Jones of Moulsecoomb. Those who were paying attention before will note that her name was on the Annunciator as being in the other Committee Room when we started this group, so I am speaking on her behalf.
There is an interesting progression here because, if I had been asked to do that a few years ago, I would have been quite uncomfortable. Had I been asked a few years ago which Green Party policy I disagreed with, the one I would have questioned was our opposition to mass fluoridation. But I have been on a political and scientific journey since then and I have come to realise that fluoridation is one of those health measures and medical practices that came to be adopted because it seemed like a good idea, well before we did proper trials, work and consideration. As the noble Lord, Lord Reay, said, there is now increasing scientific questioning.
I do not want to go over the same ground as the noble Lord, Lord Reay, but will think about where we are and apply systems thinking to this. The fact is that, according to the Drinking Water Inspectorate, the number of people now willing to drink water from the taps in the UK has dropped from 90% in 1978 to 73% in 1998. To put it another way, one in four people now mistrust the water coming out of their taps and will not drink it.
We can see the impact of that if we happen to go into a supermarket. We see a great many people lugging large, often plastic, bottles of water. They are often people who are struggling to pay for that water, yet they are buying it because of their lack of trust in the water supply that is actually far healthier than what is in the bottles. I would urge them all to drink the tap water, which is the healthy option.
We have a real problem of trust—something we have seen in other contexts. This potential mass fluoridation imposed from the centre above is something that potentially could have a real impact on reducing tap water. The noble Lord, Lord Reay, said, “Well, people can’t afford it, so it’s the poorest who’ll be forced to drink the water”. But the evidence shows that many people who cannot afford it now—from more disadvantaged and BAME backgrounds and who suffer from many disadvantages—who are reluctant to drink that water. We have also seen these issues of trust around the Covid-19 vaccine. These issues could see real risks to dental health.
We also want to apply some real systems thinking. The noble Lord, Lord Reay, referred to the fact that Scotland has brought in some good, targeted programmes on dental health that help children learn to brush their teeth and address diet and the consumption of sugary foods that has so many other health issues. We know what happens in politics. We have a problem with tooth decay and the Government say, “Right, we’re doing fluoridation”. Where are we going to see the money, focus and attention on those targeted programmes that would reach the children who need it most?
Lord Young of Cookham (Con)
My Lords, I shall respond to the injunction from the Front Bench and speak for less than two minutes. I had not planned to intervene in this debate, but I was provoked by my noble friend Lord Reay, with whom I find myself in respectful disagreement, and further provoked by the noble Baroness, Lady Bennett.
Listening to my noble friend’s speech took me back 42 years. It was like Groundhog Day, because in March 1980 I had to sit through a speech lasting more than one hour by Ivan Lawrence on fluoridation. I was lucky because in 1985 he set a new record by speaking from 5.12 am until 9.35 am. I was refreshing my memory about what I said in response to the debate 42 years ago in just two paragraphs—I should explain that I was the Minister responsible at the time, when I said:
“I think I should first explain that fluoride occurs naturally in most water supplies, sometimes at a satisfactory level for the prevention of dental decay. Fluoridation consists merely of the adjustment to the optimum level for dental protection—one part per million in temperate climes—of the fluoride content of those water supplies that are deficient in it naturally. When water containing the optimum level of fluoride is consumed during the years of tooth formation, the protection conferred in childhood continues during adult life.”—[Official Report, Commons, 6/3/1980; col. 792.]
I wound up:
“Finally, as my right hon. Friend indicated last January”—
that was January 1980—
“it remains the Government's view—like that of their predecessors for many years—that extensive trials throughout the world have shown that fluoridation safely and effectively reduces the prevalence of dental caries—one of the commonest diseases and one which has lifetime consequences for general and dental health.”—[Official Report, Commons, 6/3/1980; col. 799.]
Since that time, government policy has not been delivered, as the noble Lord, Lord Hunt, explained. Initially it was the area health authorities that did not do it, and now it is local authorities. It is now imperative that government policy is delivered, and that is why I wholeheartedly support these clauses in the Bill.
Lord Storey (LD)
My Lords, I shall speak briefly on Amendments 224 and 261 and share my views on fluoridisation. I agree with the noble Lord, Lord Reay, that it is a pity we did not have a proper full debate on this matter.
There is a real problem among young children, particularly those in deprived communities, who have increasing levels of bad teeth—dental decay. You would think that as a result of that situation we would be trying to do something more practical about it, yet we see dental inspections in schools decreasing. When I was first a head teacher, the dental services would come in twice a year to inspect children’s teeth and would give a little note to the parents so they could go to their dentist. The second problem we face is that, as we heard from the noble Lord, Lord Hunt, you cannot find an NHS dentist, particularly in a deprived area, for love nor money. That is a problem for families that cannot afford to use a private dentist, even if one was available.
When I was leader of the council in Liverpool, all political parties together—I have to tell my colleagues—decided against fluoridation, so we took the view that perhaps there was a different way of doing it. We were setting up the network of children’s centres in the early 2000s. We therefore made dental health in the nought to five age group one of the highest priorities in the city council’s strategic plan. We also issued additional guidance to our primary schools, asking them to make encouraging better dental health a higher priority. As a result, 10 years later in 2013, the British Dental Association’s 10-yearly survey showed that a reduction of 28% in caries had been achieved in Liverpool’s schools. The targeted approach achieved an outcome double that identified in the York review as the average caries reduction from fluoridation. We will also have helped many children to develop lifelong good personal dental hygiene habits, which is a crucial part of the strategy.
Whether we have fluoridation or not, we need to be absolutely sure that the journey we are going on is correct. In the meantime, we should look at other ways. We should also look at what our colleagues in Scotland have been doing with their Childsmile project, which has been shown to be safer, less wasteful and more effective, and better value for money. I hope that at some stage we will revisit this issue and have a much longer and more considered debate.
Baroness Walmsley (LD)
My Lords, this group rightly began with an amendment about adequate provision in dentistry. As we have heard, there is currently a massive shortfall in provision of NHS dentists and indeed dentists as a whole, so much so that a charity called Dentaid, which normally works in the third world, is now working in Dewsbury and Batley—and possibly in other parts of the country that I am not aware of—because people cannot get free dentistry. The situation is made worse by the backlog of treatment caused by the pandemic, whereby dentists were at first unable to see patients and later had to reduce the number of aerosol-producing treatments they could carry out each day.
I have no doubt that the condition of the nation’s teeth has deteriorated during the past couple of years. Nearly 1,000 dentists left the NHS between 2020 and 2021, according to the BDA. However, problems with access to NHS dentistry predate the pandemic. Government spending on dental services has fallen by a third in real terms in the last decade, and the £50 million one-off injection of funding announced recently will barely make a dent in the unprecedented backlog that NHS dentistry now faces.
However, it is also well proven that fluoride, however administered, can strengthen tooth enamel and help teeth to resist decay. The 2018 report from Public Health England made that clear and did not report adverse effects. In Clauses 147 and 148, the Government intend to ensure that the whole country has access to drinking water with at least 1 milligram per litre of water, the level believed to be most effective in reducing tooth decay without the unwanted effects mentioned by the noble Lord, Lord Reay, and without waiting for local authorities to initiate schemes. I have to say that I believe Public Health England rather than the noble Lord.
I am always in favour of prevention and of reducing health inequalities, and it is claimed that this measure would do both, but there are some issues which I wish to probe. Currently only two areas in the country, Hartlepool and Braintree, have the optimum level of naturally occurring fluoride in their water. Other areas, covering about only 10% of the population, mainly in the north-east and Birmingham, already have schemes initiated by the local authority. I accept that a number of costly and bureaucratic barriers have been identified to more local authorities initiating such schemes, and I understand these clauses are an attempt to overcome them by making national regulations. These would remove some of the consultation costs from local authorities. However, some local authorities are reluctant to give up their local autonomy on this issue and believe their residents should be consulted before fluoridation occurs. This must be considered.
I have some questions for the Minister, which fall into two categories. The first is about costs and where they fall. We are told in the impact assessment that current schemes will not be affected, and existing and future capital costs will continue to be borne by the Department of Health and Social Care. What will be the additional burden on the funding of the Minister’s department of bearing the capital costs for every area in the country? I understand that regulations will allow for future costs to be shared by his department with water companies. What impact is that expected to have on the water bills paid by households, since the companies will undoubtedly try to pass it on to customers?
Water companies can well afford to pay these costs themselves, rather than take the money from the health budget. This is clear from the eye-wateringly high earnings of their leading directors. We know from a briefing from Yorkshire Water that the costs can be considerable. A few years ago, it did a feasibility study when only one area—Hull City Council—was looking into fluoridation. At the time, it estimated the capital cost to be £1.6 million to £2 million and the annual operation costs to be approximately £330,000 per year. These costs would have fallen on Public Health England and the local authority at the time, but under the new proposals they would be covered by the Department of Health and Social Care.
Over recent years, capital investment in water and sewerage services has been covered just by income from water bills, but investment in infrastructure has not been adequate, since we still have raw sewage being discharged into water courses and leaks wasting water at an unacceptable level. So, we can expect the companies to accept some of the cost of fluoridation themselves, without passing it on to the customer.
Can the Minister also say what is the plan for regular measurement of the fluoride content of water, and at what point in the delivery journey will it occur? What will this cost, and where will the cost fall? Will the Government allow companies to pass this cost on to the consumer too, although they can clearly afford to absorb it? The reason I ask is that water companies share water all the time and there is a possibility that, without frequent monitoring, the fluoride content delivered to customers could turn out to be either too high or too low to be effective.
The second category of question concerns what other proposals for reducing the incidence of tooth decay have been considered by the Government, as mentioned by my noble friend Lord Storey. I have dealt with the availability of NHS dentistry, but it is excess sugar and acids in the diet that cause tooth decay. Sadly, poor diet is a major problem, particularly among poorer children, for whom the most common reason to be admitted to hospital is the need for complex extraction of rotten teeth. Fluoride can, of course, can be administered in other ways: either applied by the dentist or by regular use of fluoride-containing toothpaste—fortunately, most toothpastes contain fluoride. However, many children eat too much sugar, drink too many acidic fizzy drinks and do not brush their teeth regularly.
As my noble friend said, there used to be a school dentistry service to check for problems, and dental nurses used to visit nurseries and primary schools to teach good dental hygiene. I have myself sat in on such a session and it was excellent, but I do not believe it happens any longer. Have the Government costed a return to these schemes? As for diet, we will be dealing with that in a later group of amendments. So, while accepting the potential benefits of what is proposed, I ask the Minister to assure the House of the cost-effectiveness of the measures, explain the impact on family budgets and tell the House what other measures are being considered to achieve the same ends, which we all want to see: better and more equal dental health.
Baroness Merron (Lab)
My Lords, I welcome the amendments in this group, which focus on the need for universal access to dentistry and the introduction of fluoride into water. As my noble friend Lord Hunt said, they are about treatment and prevention, which are equally important when it comes to considering how we tackle tooth decay and oral health. I am grateful to my noble friend, the noble Baronesses, Lady Northover and Lady Walmsley, and the noble Lord, Lord Young, for their support for these amendments.
Earl Howe (Con)
My Lords, I am very grateful for the contributions to this debate from noble Lords, bringing us to a set of issues which many of us have been grappling with for a number of years.
I turn first to Amendment 224, and the access issue. The point I must stress before any other is that this Government are committed to improving access to dental services across England. With that aim, we are working closely with NHS England to increase dental capacity as rapidly as possible. Since the start of the year, the threshold for dental activity in NHS practices has again increased and is set at 85% of pre-pandemic activity, allowing more patients to be seen. Building on this, NHS England recently announced an extra £50 million to urgently provide hundreds of thousands of additional appointments.
Beyond recovery from the pandemic, we recognise the need to reform the NHS dental contract to increase access. NHS England is leading on dental system reform and working closely with key stakeholders to deliver this. I think it was the noble Baroness, Lady Merron, who asked about dental morale. Much of any dip in morale has to do with what is seen as a delay in introducing the new dental contract, which has been promised for a number of years. There are all sorts of very valuable reasons for that delay, which the profession is being consulted on, but I understand that dentists are keen to see a new structure of remuneration.
That is a summary of the current backdrop. Noble Lords should be in no doubt of the Government’s continuing commitment to improving the provision of NHS dentistry across the country. What we are doing demonstrates that commitment, and for that reason we do not feel that a requirement to publish a statement on this work is necessary.
This brings me to the amendments on water fluoridation. This Government want to see more of the population benefit from fluoridation, which we know reduces oral health inequalities and the burden on NHS services. I will first address Amendments 259B and 259D, tabled by my noble friend Lord Reay, which take us in a different direction. I realise that he feels strongly about the issue, but in relation to Amendment 259B, the clear advice that I have received is that there is no evidence of harms to the environment from water fluoridation schemes. There are existing safeguards in place to protect the environment and public health.
As part of their overall responsibilities, water companies are already required to comply with relevant environmental legislation. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and other legislation set out the thresholds and criteria for which an environmental impact assessment is already required. The installation of water fluoridation plants in some areas may already fall within this scope. The Environment Act 2021 will, when brought into force, place a duty on the Government to have due regard to the policy statement on environmental principles in our policy-making. New and revised policies will need to take into account their impact on the environment. The Environment Agency also monitors the ecological health of our rivers at a large number of sites. If there had been or were to be a failure in the safeguards, the agency could detect this through its routine monitoring programme.
Turning to Amendment 259D, I emphasise to my noble friend that the scientific evidence around fluoridation is kept under constant review. Several authoritative scientific reviews have looked at the general health effects. The common finding of such reviews is that there is no convincing scientific evidence that fluoride in drinking water at levels used in fluoridation schemes is a cause of adverse health effects. This view is shared by the UK Chief Medical Officers, who issued a joint statement last September supporting water fluoridation as a safe and effective public health intervention to improve oral health.
I listened carefully to my noble friend, but the Government are committed to keeping the evidence under review, and it would be inappropriate to carry out evidence reviews focusing on studies from a specific time period and a specific part of the world, as he suggested. Keeping the evidence under review is what we will do but the Secretary of State is also required to monitor the effects on the health of the population living in areas with water fluoridation schemes and then publish a report no less than every four years. The next report is due in March of this year.
My noble friend suggested that the water fluoridation elements of the Bill have somehow been slipped in without adequate time for debate. In fact, the White Paper setting out proposals for the Health and Care Bill, published in February 2021, highlighted the current difficulties faced by local authorities and set out our intention to use the Health and Care Bill to give the Secretary of State the power to directly introduce, vary or terminate water fluoridation schemes. So the water fluoridation elements of the Bill have been there from the outset and open to debate.
Both my noble friend and the noble Lord, Lord Storey, referred to the Childsmile initiative in Scotland and asked why we cannot have a scheme in England. In fact, daily supervised toothbrushing programmes in England can already be entered into by local authorities or the NHS. There are already some schemes around the country; I visited one myself when I was dentistry Minister. Public Health England has published guidance in this area to help local authorities who are interested in schemes. Against that background, I hope that my noble friend will feel at least a little reassured, and sufficiently so to refrain from moving his amendments when they are reached.
On Amendments 260 and 262, the public voice on further fluoridation remains important and we are committed to ensuring that the population continues to have its say on any future water fluoridation schemes. We are bringing forward plans for an initial expansion of water fluoridation schemes over the next three years. We will consult the public on these plans later this year, subject to the successful passage of the Bill and funding being confirmed. The outcome of that consultation will inform regulations to be drafted later this year. These regulations will be subject to the affirmative procedure.
Underpinning any scheme expansion is the need to undertake feasibility studies and to secure funding, as well as public consultation against which we do not have certainty and cannot pre-empt the outcome. As such, we cannot at this stage set out a programme of expansion; because of that, any programme drafted in advance of the completion of these steps would be so heavily caveated and subject to change that its utility would be substantially undermined. I am of course very happy, as is my noble friend Lord Kamall, to update the House as expansion plans are developed and agreed. However, we do not believe that this needs to be specified on the face of the Bill.
Amendment 261 relates to cost-sharing for new schemes. There are no current proposals for cost-sharing. However, given the cycle of legislation and the infrequency with which these opportunities present themselves, we have taken the decision to include such measures now to provide flexibility for this in future. I can assure the House that, should we bring forward any plans to cost-share in the future, we would seek to fully engage with relevant groups at the earliest opportunity. Any plans to cost-share with public sector bodies would also be subject to regulations on which there is a requirement to consult.
I would say to the noble Baroness, Lady Walmsley, that funding for both new and current health improvement initiatives is within the overall capital budget allocated to the department over the next three years. We will be undertaking a business planning exercise before this funding is made available from April 2022, and we will confirm this is due course.
The noble Baroness asked about the effect on water bills. There will be a cost associated with water fluoridation schemes that will need to be met either through taxation or other means. However, we know that in the end this is a cost-saving measure; the money spent to implement these schemes will save the nation money in the longer term and will benefit health. As I said, currently there are no plans to cost-share with water companies or indeed any other public sector bodies. However, given the opportunity presented by the Bill, we are enacting the relevant provisions.
Baroness Bennett of Manor Castle (GP)
I raised the issue of the lack of public trust in tap water and the fact that that is a public health issue and could be magnified. Could the Minister comment on that and suggest what the Government are planning to do about it?
Earl Howe (Con)
I apologise to the noble Baroness, because she was making a significant point. I am not sure that I share her perception that those who buy bottled water in supermarkets necessarily do so as a reflection of their lack of trust in tap water; a lot of it has to do with some myths around the benefits of bottled water. However, be that as it may, I will take advice and write to the noble Baroness. I am not sufficiently sighted on the issue she raised and the evidence behind it, so it is probably appropriate if I look into it and write to her.
Lord Hunt of Kings Heath (Lab)
My Lords, this has been a very interesting debate. On dental access, a number of noble Lords—my noble friend, the noble Baroness, Lady Bennett, the noble Lord, Lord Storey, and the noble Baroness, Lady Walmsley, among others—commented on the great difficulty that many people have at the moment in getting access to an NHS dentist. The noble Lord, Lord Storey, focused in particular on children, which is my particular concern. More energy needs to be put into developing a dental strategy. On thoughts of contracts, anyone who has been a dental Minister will know that the problem with contracts is that dentists always overperform, and the Treasury then claws back in future years, leading to unhappiness and misery in the profession. The fact that the pilot schemes, on which I think work is being based for a future contract, have now stopped, or are going to be stopped, is a great pity, and it does not show positive intent.
On fluoridation, I was delighted that the noble Lord, Lord Young, intervened. A couple of debates ago I was watching on the screen, and he chided me for what I thought was a perfectly formed piece of legislation at the time, many years ago. He talked about his experience as a Minister 42 years ago. I think it was because of his work that I, 37 years ago, as secretary of the Edgware/Hendon Community Health Council, organised public meetings in part of the Borough of Barnet on fluoridation, prior, we hoped, to the then area health authority implementing a fluoridation scheme. Although the public meetings came out strongly in favour of fluoridation, of course nothing happened. I am afraid that the experience in Barnet and Edgware and Hendon was repeated up and down the country, which is why I applaud the Government for doing what they are doing now.
The noble Baroness, Lady Northover, spoke very eloquently about the evidence from deprived areas. Sandwell, next door to Birmingham, is high up in most indicators of poor health, except in dentistry. That is because, unlike Liverpool, Birmingham City Council took the decision in the 1960s to fluoridate the water supply and Sandwell got the benefit. The result is that, in general, oral health in the West Midlands is very good indeed.
I listened with great interest to the noble Lord, Lord Reay. He mentioned the Jauncey judgment, which unfortunately I remember. I remind him that, although Lord Jauncey ruled that Strathclyde Regional Council was exceeding its powers in seeking to fluoridate the water system, he accepted that the amount of fluoride it wanted to put into the system would have no significant adverse effect on health, that fluoridation had been shown to be harmless and that it would be effective. When we quote Lord Jauncey, we need to quote the whole judgment, rather than just whether Strathclyde was found to have the power to put fluoride in the water.
I will not repeat what the noble Earl, Lord Howe, said. In only September, the Chief Medical Officers spoke in their judgment about the effectiveness and safety of fluoride. I was very glad to hear the point the noble Earl made about expansion; I am very glad that it is on the Government’s mind. I look forward to the consultation, which I take will be a national one, if there is going to be an expansion; that is very good news indeed.
On cost sharing, I register that this Bill is full of little clauses which give Ministers powers to do something in the future, when they know what they want to do. I mention procurement regulations in Clause 70 at the same time; I think that is going a bit too far. Having said that, I beg leave to withdraw my amendment.
Lord Warner
“Regard to the reports of the Office for Health and Care Sustainability
The Secretary of State, in discharging his or her responsibilities under Part 1 of this Act, must have regard to the reports of the Office for Health and Care Sustainability established under section (Office for Health and Care Sustainability).”
Lord Warner (CB)
My Lords, I rise to move Amendment 225ZA and will also speak to Amendment 285. I thank the clerks for their help in devising Amendment 225ZA, which enables us to discuss Amendment 285, which I regard as important, today. Amendment 285 is the substantive amendment I shall address.
The amendment is important because it places in legislation recommendations from the 2017 report by this House’s Select Committee on the Long-term Sustainability of the NHS and Adult Social Care. I am delighted to see two members of that Select Committee, the noble Lords, Lord Ribeiro and Lord Scriven, here this evening. Unfortunately, the Select Committee’s chairman, my noble friend Lord Patel, who did an extremely good job, is unable to be here, but I believe he will join my noble friend Lord Kakkar to discuss a less detailed amendment, Amendment 286, which tries to achieve the same objectives as Amendment 285. For the record, the two Select Committee recommendations which are germane to this amendment are recommendations 33 and 34, found on page 98 of our report. In the interests of time, I will not spell these out, because they are effectively set out in Amendment 285, but I will draw the Committee’s attention to some of the evidence which caused us to make these recommendations.
On page 84 of the report there is a section on:
“A culture of short-termism”.
This starts at paragraph 322 with the sentence:
“Our inquiry uncovered endemic short-termism in almost every area of policy making.”
We made it clear on that occasion that the noble Lord, Lord Stevens—then plain Simon Stevens, the chief executive of NHS England—was “the most notable exception” with his Five Year Forward View.
The committee was very concerned about the approach of what was then the Department of Health, particularly the evidence given to it by its Permanent Secretary, now Sir Chris Wormald, who remains in post today. I draw the Committee’s attention to paragraph 324 of our report, which sets out what the Select Committee made of the Permanent Secretary’s evidence:
“Although we questioned him at length on the work taking place in his department on the long-term future of the NHS, revealingly, we were not provided with any concrete examples. Moreover, he questioned whether this was work that should even be taking place in his department”.
We concluded at the end of paragraph 324:
“We were unconvinced by the answers he provided and we are left with no choice but to conclude that the Department of Health is failing to plan for the future”.
I have been in this place for 22 years. This was a pretty damning conclusion for a cross-party committee of this House to come to. The Permanent Secretary of the government department with the biggest budget after cash benefits, and which would be spent on the biggest public or private workforce in the country, was saying that it was not the department’s job to do long-term planning. This seemed to have been left to NHS England’s chief executive, who had been given no responsibility for securing the workforce he needed or settling the pay and conditions of service for that workforce—matters determined by the government department, whose boss thought it was not his job to do any long-term planning. The Select Committee was rather stunned by this view of what the job of a government department was.
Is it any surprise that your Lordships’ Select Committee made the recommendations it did? I see no evidence that much has changed for the better since the Select Committee’s report. When the noble Lord, Lord Stevens, spoke in the debate on the amendment on the workforce tabled by the noble Baroness, Lady Cumberlege, he seemed to confirm, if one looks back at Hansard, that this was the case, with his account of endless delays before any kind of workforce future plan saw the light of day.
The workforce amendment tabled by the noble Baroness, Lady Cumberlege, has much to commend it, as I said when we debated it. It is certainly a big improvement on the current situation and puts statutory pressure on the Secretary of State to produce regular workforce plans. My worry is that the plan that that amendment would produce may not be long term enough or closely tied to funding streams. Moreover, any planning done under the noble Baroness’s amendment would still be subject to Whitehall negotiation and Treasury and No. 10 interference if it had data or messages that were politically uncomfortable at the time of publication. I had serious doubts about the wisdom of leaving health and care workforce planning totally in the hands of elected politicians and their civil servants. I say that having been a senior civil servant and a Minister.
Two recent stories in the Times have reinforced my view. When we discussed my Amendment 72 on 24 January, I raised the matter of the front page headline in the Times of 18 January: “Javid plans NHS revolution modelled on academy schools”. I thought this was odd, given that we have not completed the legislation on this NHS reorganisation. The noble Baroness, Lady Chisholm of Owlpen, did not totally reassure me when she said in response:
“No further plans have been agreed.”—[Official Report, 24/1/22; col. 37.]
I therefore assumed something odd was going on.
Lord Hunt of Kings Heath (Lab)
I shall say a few words in support of the noble Lord, Lord Warner; I put my name to his original Amendment 285 and, obviously, I very much endorse what he said. Reading the Select Committee report again, I find it as fresh as ever and its analysis of the issues faced in the NHS are exactly the pressures we see at the moment. Let us be clear: it was a hard analysis. We are all proud of the NHS, but the report rightly pointed out that it performs poorly in comparison with many countries on many indicators. In acute care, we have worse outcomes for survival for stroke and heart attacks, we lag behind comparable European countries for cancer survival, and we have fewer beds, fewer doctors and fewer nurses per head than OECD averages. As capacity is so tight, it is no wonder, given the current pressures post pandemic, that the NHS is struggling to meet the challenges it faces. We have talked about dental access, but we could talk about the horrendous waiting times for treatment or the dreadful ambulance waiting times which are frightening for people with very serious illnesses.
The Government’s approach is one initiative at a time on the whim of the Secretary of State at the time. We have already got the Messenger review which is bringing in a general to tell the NHS how to manage its services. How many times have we introduced people before? I think Secretary of State Hunt established the report by the noble Lord, Lord Rose. He clearly wanted Rose to say that NHS managers were useless. Of course, the noble Lord did not say that. He said that Ministers are useless at creating circumstances in which managers can thrive. Messenger will come out with the same response and his report will also be rejected because what these reports all say is that the way Ministers lead from the centre is non-conducive to the sensible management of the NHS at local level. Bringing some long-term planning to the NHS with the proposals that the noble Lord, Lord Warner, suggests seems to be eminently sensible. I hope this is one of the issues that we will take to Report because it is fundamental to the future.
I was a bit nonplussed because I was rising to support my noble friend Lady Thornton on her Amendment 281, but she is yet to speak to it. It is always good to see the noble Lord, Lord Lansley, in his place. When we debated the future of Public Health England in the 2011 Bill that led to the 2012 Act, we warned that placing PHE firmly within the department would lead to a complete misunderstanding among all of us about who was responsible for its performance. Lo and behold, we had the Covid crisis and that is what happened. Noble Lords will remember that at the beginning Ministers were briefing that PHE was hopeless and that they had lost confidence in it, and that led to the rushed announcement by the previous Secretary of State about the setting up of the UK Health Security Agency. No one knew, because Ministers kept quiet, that they were accountable for PHE and that PHE staff are officials. They are civil servants directly responsible to Ministers for their performance. The Joint Committee inquiry into Covid identified this. Yes, there were issues with Public Health England’s performance, but Ministers should take responsibility.
We risk repeating the problem with the UK security agency, because, again, it is being set up as an agency part of the department, under the control of Ministers. Once again, when trouble arises, we will see the same pattern of Ministers trying to escape their responsibilities for what is performed by this particular agency. The reason I support my noble friend is that I think she is absolutely right in seeking to place this agency on a more independent basis, so that it can be seen to account for what it does and we can avoid the ambiguity being built into the current situation.
Lord Scriven (LD)
My Lords, I also want to rise to support Amendment 285 in the name of the noble Lord, Lord Warner. I was very happy to put my name to that. As the noble Lord said, I was also a member of your Lordships’ Committee on the Long-term Sustainability of the NHS and Adult Social Care.
Noble Lords who have been following this set of Committee days will realise that this amendment goes to the heart of a lot of what we have been talking about, which is the conflict between short-termism and long-term planning. The Bill is about the integration of health and social care, improving health outcomes and reducing health inequalities. They are not short-term fixes; it is a long-term journey, which will mean long-term plans.
As an independent body, this body does not stop Ministers being able to control health policy. It sets out a framework of what is required in terms of staffing; what the issues will be in terms of disease profile; what will happen in terms of demand; and for seeing how successful the Government have been, not just in being able to give a press release about certain amounts of money going to a certain area but in whether the long-term benefits of that money are achieving better health outcomes, reducing health inequalities and getting the right staffing to the right places to get a better health and social care system for the people of England. That is what this body is about. I think that, of all the amendments we have discussed—I probably would say this, because my name is to it—this is one of the most important, because it deals with the conflict between the priorities of short-termism and long-term planning.
I also want to say, as the noble Lord, Lord Warner, did, that I was astounded, as a former health service manager, that no one in the Department for Health planned for long-term care in the healthcare system. We expected the answer that at least there was somebody in a darkened room doing it. But there was absolutely nobody doing it; it was all about the whim of the Minister. In reality, that was what came out.
I think this amendment actually helps with the central purpose of this Bill, of integrating healthcare, reducing health inequalities and improving health outcomes, because it is long-term. I think it is absolutely right that this House and the public understand how the Government are doing against independent reviews at five, 10 and 15 years. We will be able to see whether the right staff, the right money and the right focus on prevention versus dealing with the acute sector are actually happening, and whether Governments, of one or two or three colours, over a period of time, are improving the healthcare system the population and leading to better health outcomes.
I also support Amendment 281, which the noble Lord, Lord Hunt, has talked about. For me, public health has been kicked for too many years between different parts of the care and health system. In particular, when you have an executive agency whose primary responsibility is to plan and then co-ordinate public health—not just at government level, but within local government and across government—if it is not independent and is not a statutory body, yet again it just plays to the whim of Ministers. I will give an example of why it is not working in its present form, based on something that has just happened in the last few weeks.
Baroness Walmsley (LD)
My Lords, I too support the noble Lord, Lord Warner. I well remember reading the report of the House of Lords Select Committee on the sustainability of our health and care services in 2017 and being rather jealous that I had not been on the committee, because it struck me as a very interesting one and it produced a very thoughtful and hard-hitting report. The office for health and care sustainability was probably the most crucial of its recommendations. Indeed, I think it would help the Government in making their decisions, because the body itself would not make the decisions but be independent, report directly to Parliament—which I thought was crucial—and look forward as far as it needed to look in a rolling programme of forecasting, assisting Ministers to make the right decisions.
Given the ageing population, resulting from improved healthcare, it had become very clear that funding was not keeping up, and indeed might never keep up unless things were done differently. That is why the committee chaired by the noble Lord, Lord Patel, also recommended the sort of integration that is at the heart of this Bill. It also reported on the lack of alignment between the funding of health and social care, which has resulted in the current gap in pay, particularly in the care sector, and the consequent staff shortage.
This was an excellent recommendation and, unlike other recommendations in the report, it has not been taken up—yet. The key thing about the body is that it would be authoritative, independent and unable itself to meddle in delivery. I would have thought that any Government would welcome the existence of such a body to do a lot of the work to establish what needs to be done and when. Unlike politicians of any political colour, it would be trusted by the public and would be staffed by experts able to gather and analyse the data. All Governments have their own focus—all Secretaries of State for Health have their own focus—and their own political priorities, which often depend on whatever the latest scandal has been, resulting in pressure from the public. Public health is too important for this, so I therefore support this amendment.
Baroness Thornton (Lab)
My Lords, we have had an important debate here, and I thank the noble Lord, Lord Warner, both for bringing these amendments before the House and for explaining their background and the important role of the Select Committee. We have debated it several times in your Lordships’ House and everybody in the House, apart from the Government Front Bench, it seems, thinks it is a brilliant report that should be acted on. This seems to be an opportunity for the Government to take on board some of its major recommendations, and this is one of them. We would support that, and we hope that the Minister might have some good news for us on that.
I also wish to speak briefly to the amendment in the name of my noble friend Lady Merron. The argument has already been made by other noble Lords—I am having a slight sense of déjà vu because I am sure I made a speech along the same lines in 2011—about the importance of Public Health England having a statutory basis to its work to give it transparency and accountability. The last two years must show us that that is the right thing to do. That is why I agree with my noble friend’s amendment to put the new UK Health Security Agency on to a statutory footing. As far as I can tell, in the past 20-odd years since I came to your Lordships’ House, every time that various Governments have mucked about with public health, they have got it wrong. Let us use this opportunity to get it right.
Baroness Chisholm of Owlpen (Con)
My Lords, I thank noble Lords for bringing forward and explaining these amendments tonight. The specific functions that noble Lords describe in Amendments 225ZA and 285 are crucial functions that the Government are committed to ensuring are discharged in full. There are, however, several bodies in place that already fulfil these proposed functions.
The first proposed function would be a monitoring role and a duty to publish data. This important function is undertaken by the Department of Health and Social Care, which already monitors and publishes some of the data described in the proposed amendment; specifically, that relating to disease profiles, but also incorporating demographic trends, where relevant. The department also commissions independent academic modelling from the Care Policy and Evaluation Centre, or CPEC, to produce projections of the long-term demand on adult social care services. The CPEC model is updated regularly to reflect the latest available academic research and evidence, as well as important updates to key inputs such as ONS principal population projections, along with life expectancy and mortality rates, disability rates, household composition, availability of informal care and unit costs of care.
The second proposed function involves assessing the workforce and skills mix. We agree that workforce planning is a vital component behind any investment. We agree, therefore, that the assessment referred to in this function is extremely valuable. It is undertaken at present by the Department of Health and Social Care, working collaboratively with both Health Education England, or HEE, and NHS England. They work together to look at key drivers of workforce demand and supply over the long term, and will set out how these may impact on the required shape of the future workforce in its broadest sense to help identify the main strategic choices facing us, develop a shared and explicit set of planning assumptions, and identify the actions required.
There are two reasons why I have concerns with trying to involve another body in workforce planning, as this amendment suggests. First, I fear the new body proposed by noble Lords would be distant from planning decisions within the NHS and the needs of service delivery. The strength of the intention to merge Health Education England and NHS England is to tackle this very issue. Secondly, it would overlap and duplicate HEE’s existing statutory responsibilities for workforce planning and investment. To support this work, the department commissioned HEE in July 2021 to refresh its long-term strategic framework, Framework 15.
Moving on, the third proposed function focuses on the stability of health and adult social care funding. This Government are committed to funding stability and sufficiency, underlined by our decision to enshrine in law our five-year long-term plan funding settlement. Healthcare budgets are agreed at spending reviews, with the Office for Budget Responsibility scrutinising those budgets. Further independent financial assessment is therefore not necessary.
It is clear that, for each of the proposed functions, there are already well-established bodies and processes to safeguard the long-term sustainability of an integrated health and adult social care system for England, underpinned by reporting to Parliament. We do not think that the creation of a further body would add value.
I fully agree with the sentiment behind Amendment 281. The UK Health Security Agency, or UKHSA, must be fully accountable for its activities, and there should be full transparency as to how it operates. I can give reassurance, however, that the establishment of the UKHSA as an executive agency of the Department of Health and Social Care is the most appropriate model.
I assure your Lordships that we fully explored other organisational models. However, the executive agency model best facilitates a balance across the needs for strong operational delivery capability, scientific integrity, and the ministerial oversight and accountability necessary to command public confidence. The executive agency model allows for the delivery of executive functions of the department to be carried out separately from, but within a policy and resources framework set by, the department. As the noble Baroness will recognise, this level of flexibility is critical to ensuring a quick and effective response to Covid-type threats without needing to rely on legislation to confer functions, which this amendment would require. Any other approach would reduce the ability of the UKHSA to respond flexibly and rapidly.
In line with requirements for all executive agencies, multiple arrangements are in place to ensure accountability, transparency and effective governance for UKHSA. These include the framework document, which is soon to be published; the annual remit letter, published on 13 July; the business and strategic plans to be published each financial year; and quarterly accountability meetings. Also, UKHSA is required to publish information on contracts and expenditure under normal government transparency rules. As an executive agency, UKHSA must publish annual reports along with audited accounts after the end of each financial year.
It is for these reasons that I ask noble Lords not to press their amendments.
Lord Warner (CB)
My Lords, that is pretty much what I expected from the Government Front Bench, so no surprises there.
I am grateful to noble Lords who have spoken in support of Amendment 285. I also support Amendment 281, though I did not mention that in my opening remarks. I want the Government to reflect on the fact that, when the person who had been Secretary of State—for what was then health only—for five or six years was released from office, and what I might call the adrenaline of office had calmed down a bit, he was able to give a pretty lengthy interview in the Times in which he effectively said, “I should have accepted that recommendation”. He explained that it was an amendment which would keep Governments honest—those were his words, not mine. This was someone who had been through the mill, had seen it all, had had to deal with these issues and had had a damascene conversion when he had left office. It is a bit like when Permanent Secretaries suddenly become supporters of freedom of information legislation after they have collected their pension.
We cannot ignore the fact that a person who actually did the job saw benefit in having this kind of body. If the Government are resting their case for long-term planning on Health Education England, I am more than ever reinforced by this amendment, having listened to my noble friend Lord Stevens of Birmingham telling us what went on in the workforce planning that he had experience of. It is a pretty unusual situation to be running a big organisation in which two-thirds of the budget is spent on staffing and workforce issues, where the guy or gal in charge of it is not actually responsible for the long-term planning of the workforce. That is an extraordinary system that Stuart Rose—the noble Lord, Lord Rose of Monewden—and others have found very difficult to understand.
Lord Kamall
Member’s explanatory statement
This amendment changes the focus of the cancer outcomes objectives so that they cover matters other than treatment (e.g. early diagnosis).
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
My Lords, I will also be moving Amendments 225B and 225C in due course. Clause 4 sets a requirement for the Secretary of State to include objectives relating to cancer outcomes in the mandate to NHS England, and for these objectives to have priority over other objectives relating specifically to cancer.
I first thank John Baron MP in the other place, who introduced this clause, and noble Lords for their support in ensuring that the Bill best delivers on our shared intention of improving outcomes for cancer patients. I also thank the cancer charities that have contacted me to express their views, and the noble Baroness, Lady Morgan of Drefelin, for her engagement. The Government have worked with Mr Baron, NHS England and stakeholders to ensure that we deliver the greatest benefits for cancer patients while minimising the risk of unintended consequences. Amendments 225A, 225B and 225C, tabled in my name, have the full support of Mr Baron, and I strongly encourage your Lordships to support them.
In recognition of the range of services offered to cancer patients, Amendment 225A will ensure that the scope of possible outcomes-driven objectives is broad enough to capture all cancer interventions, such as screening programmes or targeted lung health checks, not just those relating specifically to treatment. Connected to this, Amendment 225C will ensure that these objectives have priority over any other objectives relating to cancer, not just those relating to cancer treatment.
Amendment 225B, meanwhile, makes it clear that the objectives over which the cancer outcomes objectives have priority are those which relate specifically to cancer. When it comes to setting priorities for NHS England, including on cancer, it is vital to consider the outcomes that they should be directing the NHS to achieve. Improving outcomes means boosting survival rates—that remains our overriding aim. But the outcomes that matter to cancer patients are not limited to survival. They also include improving the quality of life for those living with cancer and the patient experience of those being treated.
We want to make sure the objectives we set benefit the outcomes of all cancer patients, whether the objectives relate to screening, early diagnosis or treatment. This is crucial as screening and early diagnosis interventions are one of the most effective ways of improving outcomes and chances of survival. I hope your Lordships can support these amendments.
Lord Moylan (Con)
My Lords, I greatly welcome the amendments proposed by my noble friend. In fact, I put my name to the equivalent amendments earlier, proposed by my noble friend Lady Morgan of Cotes. I rise to speak to my Amendment 294, the purpose of which is to draw attention to the dire state of the services and treatment offered to people suffering from cancer of the pancreas—although I could also say that there are other, equally forgotten and equally deadly cancers, such as bile duct cancer, that deserve a debate as well. I am grateful to my noble friend Lord Vaizey of Didcot and to the noble Lords, Lord Patel and Lord Aberdare, for their support of the amendment.
Many of us have seen family members and friends fall prey to this disease. Pancreatic cancer is the deadliest common cancer. It affects 10,000 people a year across the UK, and more than half will die within three months. Three in four will die within a year. Vague symptoms, lack of a simple early test, and low symptom awareness among both the public and primary care professionals result in three in five people with pancreatic cancer being diagnosed at a late stage, when curative treatment and life-saving surgery are no longer possible.
Research into pancreatic cancer has been underfunded for decades: it receives only 3% of the UK cancer research budget, despite being the deadliest common cancer. The result is that pancreatic cancer has the lowest survival rate of all common cancers, with five-year survival rates less than 7%. Five-year survival in the UK lags behind the rest of the world, with the UK ranking 29th out of 33 countries with comparable data. These survival statistics have barely improved in decades.
In addition, there is an unacceptable variability of services for pancreatic cancer sufferers, depending in part on geography, with those living near the few specialist centres able to access some services barely available elsewhere.
I wrote last year to my noble friend Lord Bethell with a particular suggestion being promoted by the small but excellent charity Pancreatic Cancer UK. In due course, on 1 December, I received a reply from my honourable friend Maria Caulfield, who said that NHS England and NHS Improvement had launched an audit of pancreatic cancer services with a view to reducing variations in treatment and improving outcomes. That is wholly welcome. The information we have nationally on pancreatic cancer treatment in the NHS is woefully poor. An audit is a good place to start. But she went on to say that the first data were expected in 2023—not the report, not the action plan that we need, and not the funding allocation, merely the first data.
My amendment seeks to impose certain reporting obligations on the Secretary of State, but its real purpose, and the real purpose of this debate, is to inject some urgency into the Government and the NHS. We cannot afford to wait years just to begin to understand the state of pancreatic cancer treatment and care, let alone to take action to improve outcomes. Pursuing the audit with urgency and dispatch should be a top government priority.
There is one thing the Government could do right away that would at least alleviate the suffering of pancreatic cancer patients—and this indeed is the subject I wrote to my noble friend Lord Bethell about at the urging of Pancreatic Cancer UK. The symptoms caused by pancreatic cancer have a very distressing impact. In particular, people are often unable to digest their food, ultimately starving the body of nutrients and calories, leading to rapid weight loss, malnutrition and loss of muscle mass.
The solution to these symptoms is pancreatic enzyme replacement therapy—PERT. PERT comes in tablet form; you take it with your food. It replaces the digestive enzymes that many people with pancreatic cancer can no longer produce. Taking the tablet helps food to be digested and absorbed by the body, and can vastly improve people’s quality of life. It can also, crucially, help them to gain the strength needed to undergo treatment. If people have lost weight and are too weak, they are sometimes not able to have surgery for that reason. NICE guidelines clearly recommend PERT for people with pancreatic cancer, whether the cancer is operable or inoperable, and there is widespread clinical consensus on its effectiveness. It is widely available and is cost-effective: it costs the NHS just £7 per day per patient.
However, a recent study has shown that only half the people with pancreatic cancer across the UK are prescribed PERT. The May 2021 RICOCHET study, undertaken by the West Midlands Research Collaborative, found that 50% of pancreatic cancer patients were not being prescribed the tablet they needed to digest food. The key reason people are not being prescribed PERT currently is a lack of dissemination of specialist knowledge about pancreatic cancer and the benefits of PERT to general healthcare settings. PERT is more likely to be prescribed in specialist surgical centres than in general hospitals, meaning that people whose cancer is operable are more likely to be prescribed PERT than those whose cancer is inoperable, because people whose cancer is operable are more likely to be moved to a specialist setting.
However, three in five people with pancreatic cancer are not diagnosed until their cancer is at an advanced stage and no longer operable, so they will tend to be treated with palliative care in a non-specialist setting. This means they will be far less likely to be prescribed PERT than if they had been diagnosed early.
What I would hope to hear my noble friend the Minister say this evening is that without waiting for the results of the audit, he will immediately set a national priority that PERT should be routinely prescribed as a feature of pancreatic cancer care. Without setting this focus and without corresponding leadership from national and local health bodies, knowledge and expertise will continue to spread far too slowly for the people with the quickest-killing cancer.
Baroness Morgan of Drefelin (CB)
My Lords, I am delighted to rise in support of the Minister’s amendments to Clause 4, and I would like to declare my interest as chief executive of Breast Cancer Now. I am also absolutely delighted to pay tribute to the honourable member John Baron, from the other place, for his incredible leadership as chair of the All-Party Group on Cancer, his tireless campaigning for the interests of cancer patients and his relentless demands around prioritising improvement in cancer outcomes—hence the origin of this new clause.
For me and for those listening to this debate, it is extremely important that the Minister has been able to clarify that the wide range of outcomes covered by this new clause will include, for example, early diagnosis, objectives around end-of-life care, the importance of measuring quality of life as an outcome, and timeliness of care, as well as survival, because we know that all those factors lead to improved quality of life but also improved survival. We do not have the time to wait five or 10 years to see whether improvements in survival are occurring—we need to see them today, next month. We need to see, for example, that PERT is getting through to all patients with pancreatic cancer, rather than waiting for the longer-term survival results.
I am very pleased that these amendments have been tabled and that the Minister has confirmed that a wide range of metrics will be used to ensure a tight grip on keeping track of the system’s performance, identifying emerging problems and backlogs as they arise, because we do not have the time to wait to find out if the system is off-track. I am very pleased that we have some clarity around what is included in these objectives. I will read the Minister’s remarks properly—when it is not quarter to 10 at night—and reflect. I am very grateful for them.
Also, what a tremendous amendment we have on pancreatic cancer, which is, as we have heard, such a pernicious disease. The audit will be very powerful when it really gets to work on what is going on locally to unearth thoughtful ideas about how the system can be improved. So much good work goes on in these audits, not just on pancreatic cancer but other diseases too. Making sure that those improvements are put into practice as quickly as possible has got to be a really good thing that this House will care about very much.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the Minister for introducing these amendments as he did and for giving us the assurance that John Baron, who had worked so hard on all of these issues around cancer care and cancer outcomes, has been fully consulted and is fully supportive of them. I was heartened to hear his stress on early diagnosis. All too often at the moment, patients are diagnosed in emergency departments when presenting late because their condition, for whatever reason, has been missed. We certainly need more early diagnostic tests to be available.
I am also grateful to the noble Lord, Lord Moylan, for speaking about a cancer which, in my experience in palliative medicine, is often within our domain. Indeed, I hope that the Minister might be able to find a way of supporting my colleague Professor Katherine Sleeman at King’s, who wants to establish a What Works centre, for a remarkably small amount of money, in order to roll out best practice in the way that the noble Lord, Lord Moylan, recommended. I do not expect the Minister to answer that now—perhaps we can discuss it later—but there certainly is a need to roll out best practice widely, not only from the cancer centres but out into the cancer units and beyond those to the general NHS.
Up until now we have had too much of an emphasis on process. This switch in emphasis to outcomes is most welcome; I expect everyone to strongly support these amendments.
Lord Aberdare (CB)
My Lords, I too am pleased to speak in support of the amendment addressing pancreatic cancer tabled by the noble Lord, Lord Moylan, to which I have added my name. I am grateful to the noble Lord for sharing a draft of his speech with me so that I have no need to test your Lordships’ patience by repeating facts and arguments that he and, indeed, the noble Baronesses, Lady Morgan and Lady Finlay, have already stated so tellingly.
I shall just emphasise a couple of points. I imagine that most, if not all, of your Lordships either know or know of someone who has died of this horrific cancer. Few survive more than a few months, unless they are lucky enough to be among the small number—I think it is about two in five people—whose cancer is diagnosed early enough to be operable. I find it quite shocking that the UK still lags so far behind other countries; as we heard, it is 29th out of 33 countries for its five-year pancreatic cancer survival rates. Research spending on pancreatic cancer is scarcely a quarter of that on leukaemia, for example, and supports correspondingly few researchers and projects. Hopefully, the noble Baroness’s friend may get some more of that.
There is a sort of vicious circle: because pancreatic cancer is so deadly, few patients are fit enough for long enough to take part in clinical trials, and few researchers are attracted to specialise in a condition that is widely regarded as a death sentence. The noble Lord’s amendment would build on the welcome audit of pancreatic cancer that he mentioned, seeking to ensure that its findings are regularly published, that they contribute to better information about pancreatic cancer and lead to specific action to address the issues identified—hopefully, the action may happen first and the audit later—while at the same time seeking to increase provision of PERT through national guidance and regular reporting.
Like the noble Lord, I wanted to mention that there are similar issues with other rare and aggressive cancers in this part of the body, such as bile duct cancer, and these too are often diagnosed too late for successful treatment. Even when surgery is available, the prognosis may be poor. Ideally, there should surely be an integrated approach to expedite diagnosis and treatment for all these cancers, and better information to help GPs and other healthcare workers to recognise their symptoms.
I very much hope that the Minister can give some reassurance on how the system being created by this Bill, including the revised NHS mandate on cancer outcome targets, will help to address the challenges of pancreatic and related cancers with some urgency, so that we can at last start to narrow the gap with other countries in treating them. I also very much support the government amendments that broaden the range of factors covered by cancer outcome objectives.
Lord Vaizey of Didcot (Con)
My Lords, I support the amendment of my noble friend Lord Moylan, which I was very proud to sign. I echo what the noble Lord, Lord Aberdare, said about knowing people who have died of this terrible disease. By coincidence, having signed the amendment, I had lunch with a friend whose brother suffers from pancreatic cancer. Luckily, however, he had it diagnosed extremely early because he had a blood test that identified the biomarkers that told him that he could have pancreatic cancer. He is now being treated and has a good chance of survival. Then, by coincidence, I visited my GP to have a blood test to test for prostate cancer. Luckily for me, the results were good.
I have a mild obsession about why we are not better in this country at implementing diagnostic procedures. When I went to see my GP to talk about prostate cancer, I asked her what kind of tests were available to me, as an NHS patient, for pancreatic or other types of cancer. As a layman reading the newspapers, almost every day there is news emerging of new blood tests that could identify cancer early. It is one of my trite dinner-party lines—I hesitate to say this, because there are so many experts in the Chamber this evening—that, in effect, one can almost argue that one has cured cancer if one is able to diagnose it early enough. That is why I welcome this emphasis on looking at outcomes rather than process in how we treat cancer. I hope that over time, it will shift the emphasis away from the treatment of cancer to how soon we can diagnose it.
I therefore support the amendment and ask the Minister a simple question: when will the test for pancreatic cancer be potentially universally available to NHS patients? I found it odd, talking to my friend over lunch, that his advice to me was to get myself on a trial as soon as possible to see whether I could get a test to get a diagnosis. It seems to me that we are lagging behind in the opportunity to diagnose cancer as early as possible and treat it as effectively as possible which, of course, will enable us to save a great deal of money.
Baroness Walmsley (LD)
My Lords, I declare an interest as a member of the All-Party Parliamentary Group on cancer and a great supporter of John Baron’s campaign on outcomes. Of course, as noble Lords across the Committee have said, the key to getting better outcomes is early diagnosis, rigorous audit, and proper dissemination across the country of what we know works. I certainly support what the noble Lord, Lord Moylan, is trying to do.
I do not oppose the government amendments outlined by the Minister, despite the rather unusual fact that they were only agreed with the Opposition Front Benches at the last minute—that is, this morning. I thank him for clarifying that; although cancer outcomes were the principal focus of Clause 4, they are not the only objective that should relate to cancer patients. The department has consulted with cancer charities, which, of course, represent many thousands of patients, to ensure that the new legislation meets their needs. Can the Minister say when the effects of Clause 4 will be reviewed and any action, if necessary, taken? Although generally approved by the sector, Macmillan is still concerned about how a focus on survival will affect those who, sadly, have terminal cancer and do not expect to survive. What they need is palliative care and measures to make the quality of their last few months of life as good as possible. Could this issue be a key part of any future evaluation of cancer care?
Baroness Merron (Lab)
My Lords, we are very pleased to support the government amendments that we have heard outlined. Crucially, they focus on cancer outcomes. As the noble Baroness, Lady Morgan, underlined, that includes survival, quality of life, experience of treatment, end-of-life care as well as diagnosis—in other words, the whole experience in treating somebody as a whole person on a journey that they may have to face. I congratulate the Minister on bringing the amendments forward. I also thank the noble Lord, Lord Moylan, supported by the noble Lords, Lord Aberdare and Lord Vaizey, and others, for highlighting the fact that pancreatic cancer has such an aggressive nature, and yet the symptoms are so silent and often misunderstood that it presents a particular challenge in the context of the care that we are speaking of today.
A focus on outcomes that covers matters other than treatment will be particularly crucial following the backlogs that the pandemic has inevitably led to, with delays in people seeking check-ups and treatment. Macmillan has let us know that more than 31,000 people in England are still waiting for their first cancer treatment, and it has also said of the Bill that for those living with cancer
“not a lot will look different.”
It is therefore crucial that the Minister assures noble Lords that stakeholders are supportive of the changes outlined in this group.
On the point about survival rates lagging behind those of other countries, that is not because the National Health Service is worse than other healthcare systems at treating cancer once it is detected but because it may not be as good at catching cancers in the crucial early stages. In other words, late diagnosis lies behind our comparatively poor survival rates. A key advantage of focusing on outcome measures is that it will give healthcare professionals much greater freedom and flexibility to design their own solutions, which could include running wider screening programmes and better awareness campaigns, and establishing greater diagnostic capabilities at primary care. A further advantage of this new focus is that it will better align NHS priorities with patient needs, which, after all, are core to our discussions on the Bill today.
I have a final and gentle word for the Minister to back up the introductory comment of the noble Baroness, Lady Walmsley. It is of course usual to consult the Opposition and others in advance to ensure that amendments are acceptable and do what is required—in other words, to strengthen the case. I know that this did not happen until very late in this case, and I am sure the Minister will not wish to repeat that practice. In summary, however, we very much welcome these amendments.
Lord Kamall (Con)
I thank the Opposition Front Benches for being so gracious given the fact that we notified them late and did not use the correct procedure. I apologise for that once again and I know that the Bill team also apologises for it. We are all on a steep learning curve, as I am sure all noble Lords acknowledge. I thank both noble Baronesses. I hope the lesson has been learned, and we will not have an excuse next time.
I will address Amendment 294 before I come to our amendments. I thank my noble friend Lord Moylan for tabling it. To reassure him, the pancreatic cancer audit is included in the national cancer audit collaborating centre tender, which is currently live. Some reporting timelines are included in the specification for this audit, developed in partnership with NHS England and NHS Improvement, but I am told that during a live tender the document is commercially sensitive and cannot be shared beyond the commissioning team, as this could risk jeopardising the procurement process. The future contract is anticipated to start in autumn of this year. However, it is not possible to confirm the timelines for a new national audit topic for pancreatic cancer until the procurement completes and the contractual deliverables are signed. Unfortunately, therefore, this cannot be aligned with the passing of the Act.
My noble friend will be aware that NICE clinical guideline NG85 recommends that pancreatic enzyme replacement therapy, or PERT, should be offered to patients with inoperable pancreatic cancer and that consideration should be given to offering PERT before and after tumour removal. NICE acknowledges that this is a priority area for improving the quality of health and social care and has included PERT in its quality standard on pancreatic cancer.
We have taken and will continue to take steps to support Pancreatic Cancer UK’s campaign to encourage greater uptake of PERT by doctors treating pancreatic cancer patients, in line with NICE guidance. We are in the process of commissioning a PC audit and, while the scope of this is not confirmed, we will certainly include this in the scoping of the topic. As I said, NICE acknowledges this as a priority area and, while its guidelines are not mandatory for healthcare professionals, the NHS is expected to take them fully into account in ensuring that services meet the needs of patients.
Lord Moylan (Con)
My Lords, before my noble friend sits down, on behalf of people who are currently suffering from pancreatic cancer or who might be diagnosed with it in the next few months, is anything going to happen faster in relation to dissemination of knowledge and prescription of PERT as a result of this debate than would have been the case had we not raised this with him?
Lord Kamall (Con)
I am afraid that I am not entirely sure of the answer to that, but I hope that we have raised awareness. I am very happy to have a conversation with my noble friend to see what more can be done, if anything.
Lord Kamall
Member’s explanatory statement
This amendment makes it clear that the objectives over which the cancer outcomes objectives have priority are those which relate specifically to cancer.
Member’s explanatory statement
This amendment means that cancer outcomes objectives will have priority over any other objectives relating to cancer (not just those relating to cancer treatment).
Lord Kamall
Member’s explanatory statement
This amendment makes a drafting change to reflect the fact that consent of the Secretary of State under section 8 of the Northern Ireland Act 1998 is given in relation to an Assembly Bill rather than an Assembly Act.
Lord Kamall (Con)
My Lords, I will speak to two minor technical amendments, Amendments 232 and 312. These amendments, which are made to Clause 111, in relation to HSSIB, and Clause 136, in relation to international healthcare agreements, do not impact the policy of either clause. They simply amend the drafting so that references are made to an Assembly Bill rather than an Assembly Act in relation to Northern Ireland. I beg to move the first of these minor technical amendments, Amendment 232.
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
My Lords, the noble Baroness, Lady Brinton, is participating remotely and I think now would be a convenient moment for her to speak.
Baroness Brinton (LD) [V]
My Lords, along with the noble Baroness, Lady Thornton, and other noble Lords, I was involved in the passage of the Bill that started off life as the Healthcare (International Arrangements) Bill, and which, by the time it was passed, had been renamed the Healthcare (European Economic Area and Switzerland Arrangements) Bill—a name almost as long as the Bill itself, and after some of the worst Henry VIII powers had been removed, including the power of Ministers to sign international trade agreements that could include preferential access to NHS contracts without the formal scrutiny and decision-making powers in Parliament.
The frustration with the remote arrangements is that I am speaking before my noble friend Lord Sharkey. I know that he will speak about the delegated powers in Clause 136. I wish I could hear his contribution before I speak, but I want to say that it seems the Government have forgotten, in nearly three years, the roasting that they got from your Lordships’ House during the passage of the Healthcare (International Arrangements) Bill. The noble Lord, Lord Wilson of Dinton, said:
“The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on.”—[Official Report, 12/3/19; col. 926.]
The then Health Minister, the noble Baroness, Lady Blackwood, when conceding on those Henry VIII powers later that day on Report, said:
“I want to be clear that the consequential Henry VIII powers were initially included as a future-proofing mechanism. They were never free-standing and we had envisaged using them in only a limited set of circumstances … we want to alleviate any fears that we are taking powers which are not absolutely necessary in this Bill. As such we are prepared to take the significant step of removing the entire Henry VIII consequential powers in Clauses 5(3) and (4).”—[Official Report, 12/3/19; col. 963.]
One of the reasons that your Lordships’ House is so concerned is that it looks as if the provisions in that Bill are being resurrected in Clause 136 of this Bill. I will give two brief examples: “2 Healthcare agreements and payments” on page 110 of the Bill, among other clauses, gives the Secretary of State the powers to make a healthcare agreement with another country and for Parliament to only comment on it by the negative resolution. For those of us who worked on a previous Bill, that sounds horribly familiar. It also gives the Secretary of State the power to give directions to a person about the exercise of any function, which is familiar not only from that Bill but from other parts of this one.
In “2B, regulations under Section 2A: consent requirements” on page 112, it says at (5) that the consent of the Secretary of State is required for a
“healthcare agreement”
which means
“an agreement or other commitment between the UK and either a country or territory outside the UK or an international organisation, concerning health provided anywhere in the world”.
Any type of “agreement” or “commitment” brings us full circle back to the Healthcare (International Arrangements) Bill as first drafted. This would include international treaties, as was planned back in 2019, to include that access to providing major parts of healthcare in the NHS, but without the consent or knowledge of Parliament, because the detail of the agreement would not need be seen before it was signed, including by the NHS, its stakeholders and the staff who work in the sector.
Lest we think that this is just words, the Chancellor of the Exchequer and the Secretary of State for Health and Social Care have both talked extensively in America to healthcare providers in recent months. What is different about this clause is the breadth of definition of a healthcare agreement, the powers that are held only by the Secretary of State, and the total lack or paucity of consultation or scrutiny by Parliament and other stakeholders before the Bill came to your Lordships’ House.
Why has Clause 136 reinstated some of the key elements of the Healthcare (International Arrangements) Bill that were removed because Ministers recognised that the scope was too wide, the Henry VIII powers were egregious, and Parliament, the NHS and other stakeholders were being totally disregarded?
Should my noble friend Lord Sharkey wish to propose on Report that the clause do not stand part, I will support him.
Lord Sharkey (LD)
My Lords, as the noble Baroness, Lady Brinton, said, I have given notice of my intention to oppose the Motion that Clause 136 stand part. This clause is yet another example of the Government’s abuse of delegated legislation and the avoidance of any meaningful parliamentary scrutiny. It is also a clear and obvious breach of an important constitutional convention.
Clause 136 amends the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which started off life as the Healthcare (International Arrangements) Bill, as we just heard. It would enable the Government to implement healthcare agreements with countries outside the European Economic Area and Switzerland. The exercise of the powers in this clause is through regulations subject only to the negative procedure. The department points to the 2019 Act as for seeking these powers, despite what we just heard from the noble Baroness, Lady Brinton.
During the passage of the then Bill in 2018-19, the Government justified or tried to justify taking the relevant powers as the need for speed and flexibility in the extraordinary circumstances of the EU withdrawal process. Parliament did not accept the provisions in the original Bill that the powers should be geographically and temporarily unlimited. After interventions by Parliament, the powers ended up being confined to the EEA and Switzerland and being sunsetted.
The department may be correct to state that the Secretary of State currently lacks the necessary powers to implement reciprocal healthcare agreements with countries outside the European Economic Area and Switzerland. However, this does not mean that there is currently no way to implement such agreements. They could and should be implemented by primary legislation. This would be in keeping with a long-standing constitutional convention that, outside the exceptional case of making provision for EU law, international legal agreements that make changes to UK law are given domestic force by an Act of Parliament. This ensures proper parliamentary scrutiny.
Our committees have pointed out breaches of this convention to the Government on several recent occasions. The last occasion was the proceedings of what was originally the Healthcare (International Arrangements) Bill, as I have just mentioned. Before that, the DPRRC commented on the breaches of this convention in the Professional Qualifications Bill in May 2021 and the Private International Law (Implementation of Agreements) Bill in March 2020. The Constitution Committee commented on the same Bill in its May 2020 report and concluded that:
“It is inappropriate for a whole category of international agreements to be made purely by delegated legislation.”
This is exactly what the Government are proposing in Clause 136.
The department does not address why such international healthcare agreements could not be implemented by primary legislation. We could try to remedy this abuse of delegated powers and breach of convention, as we did with the 2019 Act, by limiting their application and by sunsetting provisions. But, without a clearer understanding—or indeed any understanding—of exactly what agreements the department intends to use these powers for, it is not really possible to limit the power as we did then. The powers could also be sunsetted, as per that Act, but it is clear this would be inappropriate, given there is no longer a pressing time constraint on their use, unlike the then imminent departure from the EU. A better solution would be for the Government to abide by the constitutional convention and bring forward the appropriate primary legislation. That is the only way in which to enable any meaningful parliamentary scrutiny of these important reciprocal arrangements.
I look forward to the Minister’s explanation of why it is necessary to bypass Parliament and breach the constitutional convention in the manner proposed. I understand why it may be convenient, but cannot see why it is necessary or proper. We will certainly return to this issue as the Bill progresses.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the noble Lord, Lord Sharkey, for that completely comprehensive overview of the problem with this clause. I simply have some questions relating to it. We have devolved powers in the devolved nations of the United Kingdom and, to my understanding, this clause does not oblige the Government to have undertaken a comprehensive consultation with them before entering into such an agreement. It does not seem to require legislative competence before such legislation is proposed, and that legislation certainly would not come before this Parliament anyway.
Baroness Thornton (Lab)
My Lords, I am extremely grateful to the noble Lord, Lord Sharkey. Several months ago, some of his staff came to talk to me about the international healthcare part of the Bill. I said pretty much what the House decided two and a half years ago, which the noble Baroness, Lady Brinton, described. I said that we would be very sceptical of it, because we had to cut a Bill in half all those years ago to take out the international bit and leave in the European and Swiss bit because of the powers that it gave the then Secretary of State to make agreements with persons—without specifying who they might be. I remember it very clearly. So when I saw that the noble Lord had put down clause stand part, I regretted that I had not put my name to it at that time, because I realised that we would have to address this aspect of the legislation. I will not object at all to the two minor amendments, as I realise that they are simply drafting amendments, but unless we can resolve this in some way which deals with the powers, I fear that we will return to this on Report, and we will certainly support a move to remove this clause from the Bill.
Lord Kamall (Con)
My Lords, I am grateful to the noble Lord, Lord Sharkey, and others for their comments and for their engagement with the Bill team on this issue. We currently have only limited healthcare agreements with countries outside Europe. They support people from the UK to access medically necessary healthcare but do not always provide comprehensive cover for those who need it. The powers included in this clause will enable the Government to implement comprehensive reciprocal healthcare agreements with countries around the world, not just with the EEA and Switzerland. This will allow the reimbursement of healthcare costs and the exchange of data to facilitate a reimbursement process. By implementing such agreements, we hope that we can better support people when they are abroad. We have listened to concerns previously expressed in the House, so the Bill will also remove Section 1 of the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which provided a freestanding payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland. This is no longer needed, following EU exit.
We are replacing this power with regulation-making powers which can provide for payments to be made in two circumstances: one, to implement healthcare agreements, and two, in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of that agreement and the Secretary of State determines exceptional circumstances exist to justify payment. These are not the same powers that were originally drafted in the 2019 Bill. We have listened to Parliament and limited the scope of the powers to those necessary to deliver the policy intention. We have, for example, revoked the unilateral payment powers, which would enable the Secretary of State to make wide-ranging payments for healthcare outside healthcare agreements. The UK recently successfully concluded a trade and co-operation agreement with the EU, which includes comprehensive reciprocal arrangements. Therefore we see this as an appropriate time to tailor existing powers so they allow us best to support the healthcare needs of UK nationals across the world.
We hope that these legislative measures will allow us to strengthen existing agreements with non-EU countries or form other healthcare partnerships should we wish to in future. This includes looking to improve our healthcare co-operation with key international partners, the Crown dependencies and our overseas territories. We also want to offer more healthcare cover to UK residents travelling abroad for tourism or short-term business purposes, similar to the arrangements available to them when they visit EU countries.
I take this opportunity to confirm that there are no Henry VIII powers in this clause; they were removed during the passage of the Bill in 2019 and have not been put back. In response to the question of the noble Baroness, Lady Finlay, the Bill requires consultation with the devolved Administrations over the drafting of regulations made under the powers in this clause, and we are pleased that the devolved Administrations have all agreed to recommend that legislative consent is granted for these provisions.
In addition, the negotiation of international health agreements is reserved, and the devolved Administrations have a role to play in implementing those agreements. That is why we laid amendments in the House of Commons on Report of the Health and Care Bill. These amendments give the devolved Administrations power to make regulations in the areas of devolved competence within reciprocal healthcare.
As we are all too aware, healthcare co-operation between countries is a vital aspect of the global society we are a part of. Reciprocal healthcare provides safeguards and support for our most vulnerable as well as greater opportunities to travel, for work or leisure. I thank the noble Lord, Lord Sharkey, for his suggestion that we have a meeting before Report for further conversation.
Lord Kamall
“(a) in relation to eligible needs met by a local authority, to any amount the local authority charged the adult under section 14(1)(a) or 48(5) for meeting those needs;(b) in relation to eligible needs met by a person other than a local authority, to what the cost of meeting those eligible needs would have been to the local authority that was the responsible local authority when the needs were met.”Member’s explanatory statement
This amendment de-couples the costs that accrue towards the care cap from the costs specified in the budgets and simplifies the drafting for determining those costs that accrue.
Lord Kamall (Con)
My Lords, I will speak to Amendments 232A, 232B, and 234A to 234L in my name, made in relation to Clause 140. In the course of the detailed work on the operational guidance on charging reform in partnership with local authority representatives, it has become apparent that the existing legislative framework leads to unfair treatment of local authority-supported individuals in some areas and proffers incentives for self-funders in others. The intention of these amendments is to remove this. This applies even before this Bill, or whatever charging scheme we come up with, comes into effect.
Noble Lords may be aware that everyone who wants to meter towards a cap on personal care costs must have a needs assessment to ensure they have eligible needs. If there is a delay in the needs assessment through no fault of the person requiring care, they may wish or need to begin to pay for care before the local authority is able to intervene. At present, Clause 140 would enable self-funders to start metering from the point they request an independent personal budget, but the clause does not contain an equivalent provision for those whose needs are expected to be met by the local authority. These amendments will make the position the same for those whose needs are met by a local authority as for a self-funder, as well as clarifying that metering for those whose needs are being met by a local authority will be at the amount the local authority charges.
The amendments will also decouple how a local authority decides what meters towards a cap from the personal budget and independent personal budget. There are several practical benefits of this. Among the most important is ensuring that, having had an independent personal budget set by a local authority, nobody has a perverse incentive not to meet their needs. Without the amendments, somebody would meter the amount they are expected to spend set out in their independent personal budget even if they then purchased less care in order to save money.
The amendments also mean that any spending to meet agreed eligible care needs would meter towards a cap at the amount it would cost the local authority to meet those needs, where they are met by the local authority at the amount charged by it. This would happen even if it was omitted from the personal budget or independent personal budget for some reason.
Finally, there is an amendment to make a minor clarification of the circumstances in which an independent personal budget must be provided by a local authority and what the personal budget and independent personal budget must include.
I look forward to this debate and I am grateful to many noble Lords who, I am sure, wish to speak on this important matter.
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
My Lords, the noble Baronesses, Lady Brinton and Lady Campbell of Surbiton, will be speaking remotely. I invite the noble Baroness, Lady Brinton, to speak now.
Baroness Brinton (LD) [V]
My Lords, I thank the Minister for introducing the large swathe of government amendments, trying to provide small changes to clarify and to remove unintended consequences of the current system. I will speak to Amendments 235, 236A and to Clause 140 standing part of the Bill.
Amendment 235 in the name of the noble Baroness, Lady Greengross, is an attempt to replicate and update the Dilnot cap. It is certainly better than the current system, and I think that many noble Lords across all parties in this House have said that it is a shame that the new system does not emulate Dilnot better. The amendment from the noble Lord, Lord Lipsey, reduces the rate at which those on low incomes lose benefits if they have assets above the means test threshold.
However, Clause 140 as a whole is a problem. It was added to the Bill later and was not considered by the Commons Bill Committee. Under Amendment 234, “persons entering the care system at or under the age of 40 will have their care costs capped at £0. This would apply to new applicants as well as existing care users who, while over the age of 40, have been accessing care and support since before the age of 40.” It is a huge form of injustice that we have an NHS that is free at the point of use and yet young people with learning disabilities and life-limiting health conditions are being charged for their essential care. One survey of respondents with disabilities in April last year found that 81% said that they had faced cuts in care packages or increased charges during the pandemic, with over half of them specifically reporting increased charges. The survey found that
“charges had forced people to stop care they needed or make difficult choices for financial reasons, with the results showing an increased reliance on family members and high levels of deteriorating mental health, including suicidal thoughts.”
The National Audit Office reported on local government finance in the pandemic and found that 41% of councils with social care responsibility said that they needed to make “substantial” service savings to balance their budgets, including by increasing charges and further use of their reserves.
Mencap’s response to the national insurance levy was that
“we can’t see how the proposed cap on care costs will benefit people with a learning disability … People who need care are missing out, others are having their support cut and some are being asked to pay towards their care which they simply can't afford.”
Further, BBC research has found:
“Some adults with learning disabilities are paying thousands of pounds extra a year, with six councils doubling the amount of money collected in charges. In half of 83 areas that responded to a BBC request, bills across all users have risen at least 10% over two years.”
One example is Saskia Granville, who was shocked when, earlier this year, her care charges increased more than 400%, from £92 to £515 a month. She has a learning disability and lives in supported accommodation in Worthing, west Sussex, but fears the charges will curtail her independence. Some 94% of people with learning disabilities are not in work so they just cannot find that extra cash.
I look forward to hearing from the Minister how on earth he thinks that the current system is either justifiable or equitable. While there may be change trying to sort out some of the minor anomalies, what remains is a system that is deeply unjust. I hope that the Minister is able to consider both Amendments 235 and 236A. I remain to be convinced by the arrangements that he has outlined and if brought back at Report, I am likely to support Clause 140 not standing part of the Bill.
Baroness Campbell of Surbiton (CB) [V]
My Lords, I support Amendments 233, 234 and 235 in the names of my noble friends Lady Bull and Lady Greengross and the notice of intention to oppose Clause 140 in the name of the noble Baroness, Lady Wheeler.
The amendments propose less punitive charging regimes for social care users, and the notice to oppose reverses the regressive changes to the existing provisions. I support all of them to highlight on this occasion the unfairness of the Government’s charging formula on one particular group in society: working-age disabled adults.
Government amendments to the Care Act disproportionately affect working-age people, especially those with lifelong disabilities who draw on support for their day-to-day needs. It is no secret that I have long campaigned against such charges. Amendments 233 and 234 propose a zero charge on disabled people between the ages of 18 and 40, and Amendment 235 replicates the Dilnot proposals adjusted for inflation.
Care and support for those who depend on it is no less fundamental than healthcare is to survival. Without my care assistant to help me eat, drink, move and breathe, I would die, as I would if I did not receive medical care. Without access to support, I could not contribute to my community, and I could not work or enjoy life, but to live like my non-disabled peers, I would have had to pay for my care until I reached an £86,000 cap from the age of 18. In effect, it is a financial penalty on disability.
Before charging was introduced, working-age disabled service users could save for their first home, provide for a family, fund a university education and afford all the extra costs of disability such as housing adaptions or an accessible vehicle—to thrive as equal citizens. I was very lucky. I grew up during that time, which afforded me the opportunity to aspire to the same ideals as my non-disabled peers aged between 18 and 40.
Coming from very humble beginnings, I did not have a financial cushion, but I worked hard, saved like crazy and spent wisely—all the characteristics that this Government want their citizens to emulate. And look, the policy succeeded, due largely to a then no-charging policy. Here I am today, participating in vital scrutiny, equal among my “peers”. If I had been born 25 years later, it would have been a very different story.
In his foreword to the Government’s disability strategy, the Prime Minister says that it is the Government’s
“determination to level up the country so that whoever and wherever you are, the spark of your talent and potential can be connected with the kindling of opportunity”,
yet this Bill introduces a social care means test which drives disabled people into poverty and places a cap on aspiration.
Those with assets of less than £20,000 will continue to pay out of their income towards the cost of their social care. This includes pensions, means-tested benefits and extra-costs benefits such as personal independence payment, disability living allowance and attendance allowance. They are all regarded as income in the social care means test. Local authorities will undoubtedly raid these entitlements, intended to fund additional disability costs, to pay for social care. The charging reforms do nothing to address this injustice.
Consequently, those without means, unable to supplement their income through work or savings, will be forced to go without vital support. With the hike in energy bills next April, some will also go without fuel. Charging for care will prevent these young people getting on with life and building up a nest egg. Once their savings reach £20,000, they will be looted and their future security denied.
Take Sarah, aged 34. She has a learning disability and lives in supported housing with social care support for meals, budgeting and running a home. She gets housing benefit for her rent, but with no assets and being unable to work, Sarah is reliant on disability benefits for all other essentials such as food, fuel, council tax, social activities and clothes. She has been paying £81 a week towards her care package but last April the council told her that this would increase to £125. It will take Sarah 13 years to reach the cap, living on only £160 a week. If she were under 25, it would be even less—£141. Sarah will pay the same as someone with assets of £55,000. How on earth can this be described as fair? Sarah, and thousands of others like her, will not be living. They will be barely surviving.
In his Second Reading speech, the Minister said:
“The Government recognise that their amendment to the adult social care charging system was considered controversial. However, it is necessary, fair and responsible.”—[Official Report, 7/12/21; col. 1779.]
What is fair about holding down disabled people in poverty? What is responsible about limiting their ability to survive and prosper? Rather than liberating them, this charging policy will undermine their well-being and lock them in a state of avoidable and costly dependency.
I ask the Minister to work with disabled people’s organisations, myself and my colleagues before Report stage to find a fairer way to enable these service users to thrive, and to consider essential care and support services as a long-term investment rather than a drain on the Exchequer. I urge Members across the House to support these amendments and, in doing so, offer younger working-age adults with care and support needs equal life chances.
Baroness Bull (CB)
My Lords, Amendments 233 and 234 are in my name and I am grateful for the support of my co-signatories and of Mencap and nine other working-age disabled adult charities, whose concerns these amendments reflect. Clause 140 would amend Section 15 of the Care Act 2014, which places a limit on the amount adults can be required to pay towards eligible costs over their lifetime. The Government intend to set that cap at £86,000, irrespective of age and income.
My amendments would “switch on” the section of the Care Act that allows different rates to be set for specific groups, and define one specific group as people between the age of 18 and 40 who are eligible to receive care and support. The effect would be to implement Dilnot’s recommendation that people entering the care system at or under age 40 have their care costs capped at zero. This would apply both to new applicants and to existing users who have accessed care and support since before the age of 40.
The Government have argued, and expert bodies have accepted, that no one will be worse off under their proposed charging reforms. But this does not make them fair and it does not make them just. They fail to recognise that people with mental, physical and learning disabilities will need additional care and support to participate equally in opportunities that many of us take for granted. They also fail to acknowledge that this inevitably leads to higher costs of living and leaves working-age disabled adults with little or no chance of accumulating assets or savings.
The Government’s impact assessment shows that savings and assets are particularly low among younger adults: 73% of 16 to 35-year-olds have made no plans to pay for social care, and ONS figures show that wealth for households where the head is 55 and over is 25 times higher than households aged between 16 and 24. But, of course, all these figures refer to the working-age population who are able to work and therefore earn, and employment rates among disabled people are shockingly low. Just 50% are in work, and this drops to 20% for those with a learning disability. This of course means many disabled people do not have access to regular earnings or career trajectories that deliver rising salaries. So, not surprisingly, disabled people have, on average, £108,000 less in assets than their peers without disabilities. According to the Joseph Rowntree Foundation, 38% of working-age disabled adults in the UK live in poverty.
On top of these limited opportunities to earn and save, most working-age care users have a long-term condition or disability that will require costly care and support long before they reach old age and, in many cases, from birth. Scope tells us that, on average, disabled people face £583 of extra cost for every month of their lives. And, of course, very few have the resources to self-fund their care. The vast majority are either below the lower capital limit or in the means-tested system. In this case, their care needs are assessed and those needs deemed eligible are part-funded by the local authority. Needs deemed ineligible are not funded, but they are still needs, and needs have to bet. Often, this is the kind of care that enables the interactions with the workplace and social and leisure opportunities that my noble friend Lady Campbell spoke about. As funding pressures on councils lead to further squeezing of eligibility criteria, as she described, more disabled people are having to fund more care from their own pockets.
But of course, as we heard when the Government introduced new amendments on Report in the other place, this contribution will not count towards the cap. Only the amount the individual contributes to the cost of their eligible care needs will count towards the cap—not the support they receive from local authorities and not the cost of ineligible needs, even though they are genuine needs and funded entirely from individuals’ own pockets. So the consequence of this controversial change is that those people least able to afford it will be spending a greater proportion of their assets and income on social care costs. Let us be clear: that income will come from benefits. The impact assessment says its calculations
“assume users do not make contributions to their care from their income and … all contributions are from user assets.”
But in the very next line, it admits:
“In reality, whilst income from employment is excluded from the means test, income from some benefits would be included.”
So disabled people not only face higher care and support costs but are less likely to be able to earn and therefore save—and they are experiencing parallel pressures on their benefits income from rising care contributions.
The Government’s analysis does not take this into account. These oversights in the analysis cast serious doubts on whether enough has been done to understand the specific needs of younger adults requiring care and how they differ from older people. No one would argue that older people do not deserve support, but it is hard not to conclude that the Government’s reforms are primarily concerned with people who develop care needs in later life, having built up assets and savings, at the expense of working-age adults with long-standing needs.
We have already heard the Minister this evening refer to the danger of unintended consequences. I urge him to consider the consequences of these reforms for those people who most need support and to consider my amendments as a fair and just way to protect them from catastrophically high costs they cannot afford for care they cannot afford to live without. “No one will be worse off” is not, I am sure, what this Government mean when they talk about levelling up. We can and should aim higher.
Baroness Thornton (Lab)
I am standing here to speak in the place of my noble friend Lady Wheeler, because—as irony has it—she is a carer and has had to go home to care for her husband. I find that an irony. My noble friend wanted to speak at this point because we are very keen to make our points in the debate on clause stand part. First, I congratulate the noble Baroness, Lady Bull, who tabled Amendment 233, which leads the discussion on this highly controversial clause. She spoke with clarity and precision—and, of course, I thank her for her support of the other amendments.
Lord Lansley (Con)
My Lords, we have reached the point where my noble friend on the Front Bench—who is doing his job well—should look round for support on his own Benches. I fear all he has got is me.
I can see the point he was making about the desirability of these amendments. If Clause 140 were to be proceeded with, they are improvements on the structure of Clause 140, but they rather illustrate the point that Clause 140 itself was brought forward at a late stage and was not fully thought through. I might say to my noble friend that I am a little confused as to how he can be asserting that these amendments are the result of implementation of the existing system, demonstrating a problem when—as far as I can see—Amendments 232A, 232B, 234H, 234J and 234K all relate to parts of the Care Act 2014 that were never brought into force. So they cannot, in practice, have resulted from the implementation of what he describes as the existing system.
I wanted to follow the noble Baroness, Lady Thornton, because what I have to say follows directly on from what she had to say. The noble Lords will recall that at Second Reading I made it clear that I thought it was best to take Clause 140 out—I still am of that opinion. If we were to proceed with Clause 140, the noble Baronesses, Lady Bull and Lady Campbell of Surbiton—the noble Baroness, Lady Bennett, not having a chance yet to explain—have explained very well the two central points about young adults. One is that they will not have had an opportunity to accumulate assets in their lifetime. The Dilnot report itself said:
“Anyone developing an eligible need up to the age of 40 should also face a zero cap, as we do not think that people younger than 40 can, in general, realistically be expected to have planned for having a care and support need, nor will they have accumulated significant assets.”
Of course, the point that was made very well by the noble Baronesses, Lady Campbell and Lady Bull, was that, even in so far as they have incomes derived from benefits, these may be taken into account in the means test, and so we would have a situation where, under the impact of Clause 140, they would have, potentially over many years, the erosion of whatever benefits are intended to be achieved for precisely that reason. So I very much support Amendments 233 and 234.
My point more generally is that when we get to Report I hope we will have a fuller Chamber and a fuller opportunity to explain why we should take out Clause 140. Of course, in part, in doing this—I see the noble Lord, Lord Warner, standing by ready to explain what the Dilnot commission, of which he was a member, said—I am in a sense defending the Dilnot report and its implementation. I asked Andrew Dilnot to undertake the review, and it reported to me.
I noted that, on Report in another place, Matt Hancock said:
“The reason that the Dilnot system, as previously proposed, was never put in place was that there was never a proposal to pay for it”.—[Official Report, Commons, 22/11/21; col. 111.]
I have to tell him that he was a Back-Bencher in 2010-11 and there was a proposal to pay for it. It was not a Dilnot commission proposal; it was my proposal, and it would have had significant benefit in that, because it would have removed the domiciliary care exemption on the means test, it would have rebalanced domiciliary care and residential care in the social care system. It would of course have meant that, very often, those who were benefiting from the cap and had significant housing assets would have contributed towards it.
I also proposed that the winter fuel allowance should not be made available in future to older people who were higher rate taxpayers. The net effect of these two measures was about £2 billion a year, which at the time would have been enough to pay for it. The Treasury, of course, said no, because 100,000 people a year would benefit from the cap, 200,000 people a year would have to pay into the system, and therefore it was not a good idea. Politically, the Treasury was completely wrong then, and probably it is completely wrong again in bringing forward the proposal encapsulated in Clause 140.
I will just elaborate and then I will stop. On Report in the other place, the right honourable Mel Stride said of what was then new Clause 49, now Clause 140:
“The first we heard of it was not in Committee”—
there were 12 sittings of that, until 2 November—“or in September”, when the tax measures were announced, “but on Wednesday evening”. This was Monday evening, and the first they had heard of it was the previous Wednesday evening when the amendment was tabled. So it was strictly last-minute but, even in the time available, a significant number of Members of the Conservative parliamentary party in the other place had their reservations. The clause was passed with a majority of just 26, with 19 Conservative Members of Parliament voting against it. Quite a number spoke, including Kevin Hollinrake, who said that
“there is no doubt that the way that the cap works means that it is less generous for those with more modest assets.”—[Official Report, Commons, 22/11/21; cols. 115-47.]
The objective—which, as I remember, was calculated on the back of the Dilnot report—should be that, broadly speaking, whatever your level of assets, there is a maximum level of loss of assets resulting from the implementation of the cap with a means test. If I remember correctly, it was about 45% loss of assets for those with the least assets; it would not exceed that. Of course, for people with lots of assets, the loss of their assets is significantly below that percentage. But now we have ended up with people with a large amount of assets having a potentially very low loss of assets and they are the principal gainers; people with very few assets, but some, may well lose them all. This cannot be right, and it cannot be fair. It is quite clear that Members of the other place, including a significant number of Conservatives, want to think about this again. When it comes to Report, if we take Clause 140 out, we will rightly give them the opportunity to do so.
Baroness Greengross (CB)
My Lords, I rise to speak to Amendment 235 in my name, which seeks to implement the social care contribution cap recommended in the 2011 Dilnot report. He recommended that a cap be set at £35,000. Care cost inflation runs at 1.5% above the consumer price index, so to replicate the 2011 recommendation, adjusting for this cap would now be set at £50,000, and that is what this amendment seeks to achieve. The amendment would also adjust the cap with care cost inflation each year.
I first want to acknowledge that the Government’s proposed cap in this Bill of £86,000 is a significant improvement, as it introduces a cap and puts some limit on what people pay in care costs. There are some who still do not believe that there should be a cap and feel that this will just be a means of helping wealthy homeowners, but not all homeowners are automatically wealthy or sitting on some high-value property portfolio. For many people, as we know, their only real asset is a modest family home, which, in certain parts of the country, may have increased in value over time but even so not enough to make them wealthy.
There is an equity issue in that, if someone is diagnosed with cancer, the NHS will cover the full treatment cost, whereas if someone is diagnosed with dementia, they may require many years of care, which will cost families thousands of pounds as this is not covered. My Amendment 291, which will be debated in a later group, addresses the issue of dementia care plans and specifically talks about the different types of dementia and how each requires a different type of care and support. If someone is unlucky enough to be diagnosed with a certain type of vascular dementia, Lewy body dementia, or Parkinson’s-related dementia, these conditions often require many years of care—up to a decade or more in some cases.
I am not suggesting that there should be a different cap for people who have been diagnosed with long-lasting forms of dementia, but we must understand that people with these types of dementia will be the most impacted by this provision. The proposed cap of £50,000 in this amendment, the equivalent to that recommended in the Dilnot report nearly 11 years ago, is a much better one. According to the ONS, the average yearly earnings for people in the UK is £31,000. The cap of £50,000 is roughly just under two years’ average earnings, whereas £86,000 is nearly three years’ average earnings.
I anticipate that, when the Minister responds, the main objection to this amendment will be the cost to the Government, and I have no doubt that the Treasury will have concerns if the cap is lowered. In response to this, I refer the House to the debate in this Chamber on 16 September 2021 on the Intergenerational Fairness Forum report, Grasping the Nettle. As chair of the Intergenerational Fairness Forum, I introduced this debate, outlining that the report recommended that the Government introduce a social care levy at a rate of 1%, which could be raised to 2% for those aged 50 and over if there were a need for extra revenue. The levy would apply only to adults over the age of 40, placing the heaviest burden on those best placed to contribute to the cost of this bill. I mention the recommendation from this report to highlight that there are still other options to fund social care, and it would mean that the Government could lower the cap.
Some will feel that it is better at this time to focus on implementing the current cap and then, over time, press for a lower cap. Certainly, history shows that when other social security measures, such as the pension, were first introduced, they started at quite a small amount of money but then became more generous over time. I accept the logic of this, but still feel that the case must be made for a lower cap and that this should be considered and debated in Committee.
Lord Lipsey (Lab)
My Lords, this is a rather strange grouping. In the earlier debates we were dancing at times on the heads of pins, and now we have the noble Baroness, Lady Greengross, with her proposals for a lower cap, and the noble Baroness, Lady Bull—with whom I agree—largely exempting people of working age with a disability, and it is difficult to cover the whole field. However, I will attempt to give a small synopsis leading up to my own amendment, which is about the taper.
I first declare an interest as an unremunerated president of SOLLA, the Society of Later Life Advisers—the people who really know a lot about this stuff. I should also apologise for not having participated in the Second Reading debate but, like the noble Baroness, Lady Bull, I was in a crucial meeting of our House’s Communications Committee, which made doing so impossible.
On Mondays, Wednesdays and Fridays I am a strong supporter of the cap as recommended by Andrew Dilnot, for the obvious reason that it ends an unfairness to people who happen to live for a long time and therefore lose their assets. Unfortunately, in 54 minutes’ time I shall go back to the way I am on Tuesdays, Thursdays and Saturdays, which is to be broadly opposed to a cap of the kind that has been proposed. That is for two reasons. First, all parties should take into account that it is wildly expensive—some £3 billion, which will rise as the number of old people rises. I would much rather that that money was spent on better care for those who need it than on paying for the rich. Do not be in any doubt: whatever gloss is put on it, half the people in care are paid for by the state now, so all the expenditure on the Dilnot cap will go on the other half. A lot of them are not rich people—some of them are quite modestly wealthy—but it is the richer half of the population that this cap supports. As a socialist, that is why I cannot go along with it—at least on Tuesdays, Thursdays and Saturdays. It is not too long until next Sunday, when the good Lord will advise me on what final position to take.
Starting from that scepticism about the concept of a cap, I will say one thing about Dilnot’s proposals. Whatever you think, whether you are for it or against it, the case for the cap is much less strong than it was when Andrew Dilnot proposed it in his brilliant report, and for three reasons. First, no one now has to sell their house to pay for care. They did then but they do not now: they can borrow the money from the local authority and pay it back afterwards. Secondly, house prices have risen by 30%, so many people have more assets they could spend on their own care without leaving themselves with no assets to leave to their children. Thirdly—an important point which has been wholly missed so far in the debate—the private sector, belatedly but slowly, has started to get its act together about this. There are two relevant products: equity release, which enables somebody to get some money out of their house to pay for their care without selling the house, leaving plenty for the children; and, more importantly, annuities and deferred annuities, which are paid from the point of care in the case of an annuity, or after you have been in care for two years or so in the case of a deferred annuity. I was amazed to read through the impact assessment, which went through every possible argument on caps and alternatives to them, and not see a single reference to deferred annuities. They are part of a holistic solution.
I ask the Minister in all sincerity—I know he is very open to suggestions—that, before this Bill completes its passage and, preferably, before we have decided whether to leave Clause 140 as part of the Bill, we look at the role that the private sector can play in supplementing a cap, for example in allowing people to pay for better care for themselves, or indeed possibly replacing it with a less regressive way of paying for care. It should be looked at; it has been ignored since Dilnot, and the case that Dilnot then made against it is not quite the same today, so it really deserves to be looked at.
Finally, on my own amendment on the taper, I am very distribution-minded about this cap. What motivates me is that I hate taking scarce state money, which is needed to provide decent services for people who cannot provide decent services for themselves, and spending it on a subsidy for “Disgusted of Tunbridge Wells”. This seems wrong to me. I would love to see the welfare state expand. I am rather shocked to find a Conservative Government seeking to expand it in order to help the better-off at the cost of much more public spending. The better-off should be able to look after themselves.
If we are to have a cap, we should make it as good in terms of redistribution as we can, with less favouring of the rich than is the case with the present cap. That is why I brought in another thing that has not been mentioned in the debate: the taper. At the moment, the taper does not matter much; it applies in only a very narrow band of incomes. However, under this system, the taper will apply to assets of between £20,000 and £100,000. For every £250 you have in the bank, you lose £1 a week in benefits. That will hit the people who have between £20,000 and £100,000 in assets. They are not rich; they are the kind of people I want to help, but they are being struck by this taper.
Of course, addressing this will cost money, and I am reluctant about that. For every £50 you put on the £250 for the taper, it would be about £200 million a year; it is not nothing, but it is less than the £1 billion or so that would be lost if Clause 140 does not stand part of the Bill. If the Government want to show that they are interested in redistribution, as well as pleasing their richer supporters, I ask them to look at the taper as an alternative. I saw the vote in the Commons: Clause 140 is down the pan. It is not going to win. If he takes it back to the other place, he will be voted down, so it is not going to happen. Therefore, we all, particularly in your Lordships’ House, need to use our imagination to find alternatives to the proposal that the Government have put forward. That proposal will not pass this Parliament in its present form and in its entirety. Working with the Minister, we need to find a better proposal that meets the various considerations I have put forward and, in particular, uses the private sector and does not protect the assets of just the rich.
Lord Warner (CB)
My Lords, a little belatedly, noble Lords might like to hear from one-third of the Dilnot Commission; I declare my interest as that third. I have to say that our ideas have been presented in a whole variety of ways over the last 10 years. This evening, they have been presented fairly accurately, which is refreshing.
Baroness Bennett of Manor Castle (GP)
My Lords, having attached my name to Amendment 233 in the name of the noble Baroness, Lady Bull, and Amendment 235, in the name of the noble Baroness, Lady Greengross, I shall rise briefly. I am not quite sure why I did not attach my name to Amendment 234 in the name of the noble Baroness, Lady Bull. I certainly meant to, so I apologise for not doing so. I did that because I was approached to show broad cross-party support. Indeed, my name and that of the noble Lord, Lord Lansley, on the same amendment definitely demonstrates that.
As someone concerned about poverty and inequality, I could not but do that. The noble Baronesses, Lady Bull and Lady Greengross, have set out the cases very clearly. I am not going to run through again the levels of poverty and inequality and the sheer struggle that so many people currently face and will face in future. As we have been around the houses for quite a long while on whether Clause 140 stand part, I shall just refer to one sentence in the Age UK report because it sums up where we are very clearly. It says:
“It is clear that these changes have the potential to save the Government hundreds of millions of pounds, but at the expense of those on low incomes, with modest assets and living in parts of the country where houses values are lower.”
It is the very opposite of levelling up.
However, in the context of this debate and particularly after the comments of the noble Lord, Lord Lipsey, I want to set out an alternative vision—a vision that is much more radical than anything noble Lords have heard from anyone else tonight. It is the vision that was passed at the Green Party conference in October after a long and very hard-working campaign, particularly by our group of disabled members. It calls for free social care for all adults. Members of your Lordships’ House will have often heard me talking about a universal basic income, and I see the other side of that as universal basic services. I regard social care as a basic service. If you need help to eat, wash and lead a full life under your own control, that should be provided free at the point of need in the same way as the NHS is provided. This is a basic philosophical difference from others who have said that we need it all means-tested and that we need to be able to look at where a person is. I say that if someone needs this help it should be provided and then, whether or not people who have the means to contribute to that, whether they have been unfortunate enough to suffer a disability or a limiting illness, they should all be in that position.
I am aware of the time, so I will make just one final point on postcode lotteries. We often express a great deal of concern about postcode lotteries, but there is another lottery that occurs to people in this situation. Some people who suffer very serious disabilities or very serious illnesses that affect their living conditions are able, through the courts, to receive payments. Perhaps their parents are able to show that they suffered some disability at birth as a result of inadequate care, and they receive a very large payment that is set at a level to provide them with a decent level of care for life. Perhaps they are a young adult who is knocked off their bicycle and it is possible to hold a driver responsible. They get a very large court payout absolutely rightly. I am not challenging that under the current system at all, but they get that payment. Someone with exactly the same condition who cannot go to court and the people caring for them, their parents or relatives, have to struggle and fight at every level and at every moment to get the care that they need. That is just not right.
Lord Davies of Brixton (Lab)
My Lords, I just want to contribute to this debate. I fully support the remarks of my noble friend Lady Thornton. I was particularly struck by her dissection of this Government’s totally preposterous claim to have a plan for social care. They do not have a plan. All they have is a regressive tax and a broken promise.
I am tempted by the remarks of my noble friend Lord Lipsey to enter into a broader debate on these issues. Clearly, this issue is not going to go away. This is not the end and the issues that were raised will come back again and again until we move towards something fairer and more comprehensive. I cannot resist saying that I am unconvinced that deferred annuities will have any part in any sort of mass market provision of care. As a product, they are fatally flawed, in my view.
My noble friend’s remarks also made me think of the extent to which this debate is taking place while ignoring the key factor in these issues, which is housing or, rather, property management. That is really what we are talking about, but we do not mention it in the context of these debates, which is unfortunate. I am glad my noble friend raised these issues. However, I think the substantive point this evening is the imperative of sending this clause back to the Commons where they can reassess it with greater time than they were allowed initially.
Finally, I just want to highlight the revealing and outrageous statement by the Minister in the Commons, Mr Argar. He said the Government
“have always intended for the cap to apply to what people personally contribute, rather than on the combination of their personal contribution and that of the state.”—[Official Report, Commons, 22/11/21; col. 110.]
I do not believe that means-tested benefits are any more money being given by the state than my pension that I get from the national insurance scheme. It is outrageous to cast people as, in a sense, recipients of charity. It is their rights as citizens to have this money, and it is their money; it is not the state’s money. It reveals the Poor Law mindset of this Government.
Lord Kamall (Con)
My Lords, I understand the concerns about the lack of debate in the other place on this issue. The Government are putting in place a package of reforms to be implemented in 2023. The introduction of the £86,000 cap on costs is part of a package through which we hope that no one will lose out when compared to the current system. I will get the source that the noble Baroness, Lady Thornton, asked me for. I think that is a reasonable question.
The Government believe that having the cap in place allows people to balance their personal responsibility of planning for later years and puts in place a system where we hope that no one faces unpredictable care costs. Without Clause 140, two people with the same level of wealth, contributing the same amount towards the cost of their care, could reach the cap at very different times, driven not by how much they are spending on their care but how much the local authority is. We wanted to address that perceived unfairness.
Instead, the Government made the decision to offer the same cap for everyone. However, the cost for people with more modest means will be reduced in two important ways: first, through means-tested support, including for those living in their home. This kicks in as soon as someone’s assets fall below £100,000, potentially right from the start of their care journey. We chose to offer the same threshold for means-tested support, no matter where somebody draws on care, because we want to support and encourage people to be able to stay in their own homes whenever they can. That was an ambition set out in our White Paper, People at the Heart of Care.
Lord Warner (CB)
The proposition in relation to the age of 40 was in the report; it has been around for 10 years. It is a bit late in the day to be coming forward with the suggestion that it was an inadequate proposition from the Dilnot commission. Ten years is a long time to discover truth.
Lord Kamall (Con)
Perhaps I may move on to Amendment 235, on setting the cap based on the recommendations of the Commission on Funding of Care and Support and moving the implementation date by a year. For local authorities to make a change of this magnitude this year is undeliverable. They have told us that the original plan to implement for October 2023 is already an ambitious target.
Setting the level of the cap has been a fine balance. The Government have had to consider the longer-term cost of reform and what proportion of the future levy revenues to earmark for this purpose and other purposes. Retrospectively to impose a cap on care costs for everyone in the care system and to include their care costs during their lifetimes in the cap calculation is unfeasible.
I would like to have some further conversations with the noble Lord on Amendment 236A, if that is possible. I thank him for some of his suggestions to date. There is a real debate about how feasible a private solution is. I remember in an earlier debate the noble Lord rightly chastising me and saying that it was rather embarrassing for a Labour Peer to propose to a Conservative Peer a private sector solution. That hurt—but I completely understand. If it is possible, I personally would have been open to it, but the Government maintain that it is not feasible. We will probably need some more discussions.
This clause clearly needs a lot more discussion between now and Report. I could go into more arguments but, given that there was a lack of debate in the other place, I think that it needs more debate and more consideration overall. I am very happy to have more round tables with the Bill team, the charging team and noble Lords to explain the case, and for noble Lords to decide whether it is an acceptable case or still to disagree with it. With that in mind, I hope that noble Lords feel sufficiently reassured not to press their amendments at this stage and to allow the clause to stand part of the Bill. I beg leave to withdraw my amendment.
“Registration of tertiary prevention activities in respect of provision of social care
In section 9 of the Health and Social Care Act 2008, in subsection (3) at the end insert “or any form of reablement and rehabilitation provided under section 2 of the Care Act 2014 to reduce the need for care and support”.”Member’s explanatory statement
This new Clause would bring reablement and rehabilitation provided under Section 2 of the Care Act 2014 to reduce the need for care and support into the purview of the Care Quality Commission.
Baroness Finlay of Llandaff (CB)
My Lords, this group of amendments is concerned with rehabilitation services. Very briefly, because the hour is very late, I will set out why it matters so much.
People in hospital, as the Minister said previously, lose muscle mass at an alarming rate when they are confined to bed. They risk thrombosis, lose their ability to balance, their confidence and their social contacts, and can become lonelier, isolated from friends and family, and depressed as they see themselves able to do less and less. They then become terrified of going home and often feel quite dumped when they get home because there is a sudden cliff edge from being supported in an environment to feeling like there is no one there. That same cliff edge also happens for patients when they leave intensive care units and go from the very intensive care down to a general ward—so we have huge steps in our system at the moment.
Assessment in hospital, as has often happened, does not often make any sense, because people know their own home. So assessing whether someone can make a cup of tea in a hospital kitchen may bear no relationship at all to their own kettle, their own kitchen, the floor, where they keep things, and so on. They need to be in their own home to be assessed. In their own home, there are often trip hazards, if they are not detected, and if people are not supported to navigate around their own home and furniture, they will have a fall and end up back in hospital very quickly. They need seven-day support at home, because they need to have people whom they can contact.
The problem is that, at the moment, recovery and maintenance of personal independence, although central to the Government’s long-term ambition for social care services, just do not seem to be integrated. In the document, People at the Heart of Care, there is a reference on 68 occasions to the importance of the role of adult care services in maintaining independence for people at home in the community, but there is no mention of local authority rehabilitation services at all.
Rehabilitation services in the community are not subject to regular monitoring and inspection. There are no consequences for poor or absent provision beyond individual complaints, which is why this amendment proposes that they should be brought into the purview of the Care Quality Commission. In the other place, the Minister Edward Argar stated his belief that services were already covered by the existing legislation. But that is not the everyday experience in operation. For example, if we look at vision rehabilitation services, in an audit undertaken by the RNIB, half of the lead counsellors for rehabilitation had no idea that vision rehabilitation was in their remit.
I shall move on rapidly to Amendment 241, because these amendments are all linked. I should have said at the outset that these have been proposed and supported also by the Chartered Society of Physiotherapy, of which I am president. In this amendment, in large part, professions involved in local authority rehabilitation are regulated bodies with recognition in health, such as OTs, physios and speech and language therapists. But there are other people in local authorities involved in providing rehabilitation who are currently completely unregulated and unregistered, so the Rehabilitation Workers Professional Network is currently seeking registration with the Professional Standards Authority in order to take this group of staff on to a list of statutorily regulated social care staff.
Amendment 306, also in this group, would bring local authority reablement and rehabilitation activities, defined by care and support statutory guidance as tertiary prevention, into regulation and enable the Secretary of State to require information on how the service is operated. Anecdotally, there is wide, unwarranted variation in both the quality and breadth of service offered across England. There is no centralised reporting of performance. Bringing these services explicitly into regulation would enable NICE to develop guidelines and quality statements that could be used to inform the quality of provision of services, which, as I have already said, could then be properly inspected. We might then get nearer to having a level playing field.
I also have my name to the amendment of the noble Baroness, Lady Greengross, which is about hospital accommodation, and I will speak to it briefly. At the moment, we have a severe shortage of beds. We know that patients come out of ICU to general wards, and there are patients who cannot then be discharged to home. Often, they are in that twilight where they are really not well enough to go home. They need more rehabilitation, they need more support, but the hospital is deeming them fit to discharge because of the incoming pressure on their beds.
If we had some more step-down beds, we could provide care in much more imaginative ways, such as happens in some parts of Europe, where, for example, family members are expected to come in and help with some of the basic care—feeding, personal hygiene and so on—of their own relative, as they all get used to rehabilitating together, so that that person can go home with that family member understanding how to care for them and what to do, and therefore being able to support them better in the community and pick up early warning signs.
We need to learn from the military rehabilitation units and the new NHS national rehabilitation centre that is being built near Loughborough, because there is evidence that if you can move people through the system more appropriately and get them back home, they recover better and quicker and do not risk that deterioration I referred to at the beginning. A community rehabilitation plan would improve co-ordination, integration of rehabilitation units and community rehabilitation. I beg to move.
Baroness Walmsley (LD)
My Lords, numerous reports from Select Committees of your Lordships’ House have recommended that the NHS and care system do things differently in order to use resources efficiently while providing better care and independence for patients. It is well known that most of us cost the NHS more as we get older, particularly if we have multiple morbidities. This is why the Government launched the Ageing Society Grand Challenge—to achieve five additional years of healthy life by 2035. So your Lordships’ Science and Technology Committee looked into this and published a report on 15 January last year. Sadly, we had to conclude that the Government are not on track to achieve this.
Baroness Greengross (CB)
My Lords, I rise to speak to my Amendment 289, which would ensure that every hospital has sufficient accommodation to allow a bed for any patient who is rehabilitating and who no longer needs to be in hospital, but who cannot be discharged to their own home. Further, this amendment would place a duty on the Secretary of State to ensure that hospitals use any spare land owned by the NHS to build this accommodation.
For many years I have been an advocate for this type of accommodation. The NHS has struggled for a long time with a lack of available hospital beds, a situation made worse by the coronavirus pandemic. Having rehabilitation accommodation for people who need to be near a hospital in case they need to see a doctor, but who do not need the full services of an NHS hospital bed, which is considerably more expensive, would be of considerable benefit. In Scandinavia, patient accommodation of this nature has been part of the state health system since the late 1980s. Having patients stay in these facilities, which are designed to cater for people needing medical care, has delivered considerable savings to the public health system.
The cost of someone staying in one of these hotel rooms is less than a third of the cost of someone staying in a hospital bed. This is a great example of how the private sector, working in conjunction with the state, can enhance efficiency and deliver better public health outcomes. Over the last couple of years I have had the privilege of working with chartered architect Jimmy Kim, who has identified various opportunities throughout England to use NHS-owned land or vacant buildings for this sort of development. These sites could be given to the private sector to develop into non-clinical units, with a guarantee of a utilisation contract from the Government. At present, NHS trusts are spending money putting up patients in hotels, with rooms costing as much as £275 per night. One hospital has spent over £1 million on hotel rooms in the last three years. From a cost perspective, it would be better for the NHS to provide this accommodation in symbiosis with the private sector, rather than paying hundreds of pounds a night for hotel rooms or having patients stay longer in hospital beds which are not designed for the context of health rehabilitation.
We need to bear in mind the widening context of what a patient is in today’s society, which is one with dementia, adult-disabled, mental health issues and, progressively, those for whom the social services have yet to find suitable accommodation.
The need to reform both health and care is long overdue. The pressure to invest more in social care has been building up over many years, and Governments have been slow to respond. But part of this must also be looking at prevention and helping people to remain independent, which we can do through supporting rehabilitating patients and helping people to remain independent. We also know that pressure on our hospital system means that many people wait far too long to get treatments, while others stay too long due to there not being suitable accommodation when they are discharged. In too many cases, people end up in hospital for too long or in the social care system where, instead, the step-down accommodation that I am proposing in my amendment would be the most suitable option.
I would love to discuss this further with the Government as I believe that the concept has real merit, as it would reduce NHS costs and improve patient outcomes. My amendment would help the NHS save money and result in better outcomes for patients. I know that one such experiment is being developed now in London; I am really delighted to know about that and I think many patients will be too.
Baroness Watkins of Tavistock (CB)
My Lords, delayed transfers in care is an ongoing challenge for health and social care services, made worse with the pandemic. We need to remember that hospitals are for assessment and treatment. As other noble Lords have already said, extensive stay in hospital is not good for your health.
In February 2020, there were over 155,000 delay days in hospital, costing a significant amount of money. A majority of the delays—21%—were caused by delays in packages of care in patients’ own homes, while 18% were due to delays in receiving further non-acute NHS care. With over half a million emergency admissions in the same month, intervention is urgently needed to reduce systematic pressures and maintain safe and timely discharge.
I therefore particularly support Amendment 289 to optimise existing space and develop new accommodation for hospital patients who no longer require acute treatment. There are a range of options, including community hospitals, NHS nursing homes, contracts with not-for-profit social enterprises and, as my noble friend Lady Greengross has said, independent sector companies.
However, these issues are not new. I have in my hands a paper by Sir Cyril Chantler for the King’s Fund, The Potential of Community Hospitals to Change the Delivery of Health Care. The salutary point about this excellent paper is that it was written in 2001.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise very briefly, since I attached my name to Amendment 289, in the name of the noble Baroness, Lady Greengross. She set out the reason for the need for this service, but I just want to say explicitly—particularly given the next group of amendments—that I do not believe that independent providers, for-profit providers at least, would be the way of doing this, given the many problems that we have seen in social care, which are highlighted in the next group.
We still have, in some places at least, community hospitals and facilities in communities. These are things that ideally would be developed by the community for the community, being run for public good not private profit.
Baroness Grey-Thompson (CB)
My Lords, I speak in support of Amendment 289 in the names of my noble friends Lady Greengross, Lady Watkins, Lady Finlay and the noble Baroness, Lady Bennett of Manor Castle.
Reading the words of the amendment reminded me of the speech that my noble friend Lady Campbell of Surbiton gave in your Lordships’ Chamber on 29 November 2012—col. 274 in Hansard. She talked movingly about a young man, a wheelchair user who had to remain in hospital four months longer than he should have because of a lack of accessible accommodation —a travesty. One can only imagine the impact on the mental health and well-being of someone in this situation. Sadly, many more now know what this feels like.
Although the situation we are in now is somewhat different, I hope that the Minister will be able to give due consideration to the needs of disabled people, in relation to accessibility—for example, regarding toilets, showers, and specialist equipment—but also to the support networks that disabled people may require, while ensuring that appropriate and knowledgeable people are able to support their rehab. This is vital so that many disabled people are not marooned.
While I have been in your Lordships’ Chamber tonight, I have been sent some data on the work carried out by Dr Elizabeth Williamson about the mortality rates of those on the learning disability register over the last 18 months; these rates are, quite frankly, shocking. I need some time to go through the data in detail and digest it. I will write to the Minister to explore this further but, at a quick glance, the data gives me cause for significant concern and means that careful implementation of the amendments in this group will be very important to protect and support disabled people.
Going back to the amendment, a disabled person’s ability to return home may or may not be more complicated than for a non-disabled person during this time but a longer stay than necessary could have a significant impact on someone’s mental health and well-being, especially if not properly supported, and could even hamper their long-term physical recovery, which, in turn, would put more pressure on the NHS.
Lord Warner (CB)
My Lords, I will speak briefly in support of Amendment 289. It is worth remembering that the NHS used to have convalescent beds—I went to one as a boy, recovering from peritonitis. These have disappeared over time. When in the 1980s and 1990s nursing homes were set up in increasing numbers across this country, we found that they ended up on the means-tested side of the boundary between health and adult social care. In a way, the NHS lost out because these resources were on another side of the boundary, which was defended with jesuitical force to make sure that people did not drift into the NHS who might get care that was not means tested but free. We have ended up shooting ourselves quite badly in the foot by allowing these services to drift out of the NHS and into the adult social care system.
Shortly after the 2010 election, I facilitated a proposal from a few large nursing home groups to take recovering patients from hospital to free up acute hospital beds. This was rejected by the Treasury which thought it would lead to large numbers of people who were being means-tested getting free NHS care. In fact, they were two separate groups and the NHS was punishing itself by keeping people in beds in the NHS at high cost. We know that about 25% of the people who are in acute hospital beds should not be there—they need not be there clinically—but they are holding on to those beds because there is nowhere else for them to go within the NHS system. We have ended up unnecessarily blocking beds and spending a lot more money because we cannot put in place a service that the NHS badly needs. I suggest to the Minister that we revisit this issue in the interests of the NHS and its patients.
Baroness Merron (Lab)
My Lords, I thank noble Lords for the debate this evening and for the amendments put forward, which have focused on what I would call a complete continuum of care and support where people need it most; my thanks also to the noble Baroness, Lady Finlay, for leading the debate. What we hear tonight is the need to drive up standards and availability in what can be accessed for reablement and rehabilitation.
As the noble Lord, Lord Warner, reminds me, I fear that, over time, we have perhaps lost a broader range of provision, and the word “convalescence” has somewhat left our vocabulary. The amendment tabled by the noble Baroness, Lady Greengross, to ensure that accommodation is available to people who are in rehabilitation—people who no longer need to be in a hospital ward but cannot return to their own home—is creative and practical. I hope that the Minister will look at exploring that idea.
Baroness Chisholm of Owlpen (Con)
I thank noble Lords for explaining these amendments. On Amendments 236 and 306, it is right that social care services be appropriately and effectively regulated, and this includes rehabilitation and reablement. However, I do not believe these amendments are necessary to achieve that outcome.
The definition of “social care” in the existing Section 9 of the Health and Social Care Act 2008 is already sufficiently broad to cover reablement and rehabilitation services provided under Section 2 of the Care Act 2014. Most rehabilitation and reablement services are already within the scope of the CQC’s regulated activities, so most of those services are CQC registered.
It follows that these services are also in scope of the provision in Clause 85 that enables the Secretary of State to require information from CQC-registered providers of adult social care services. If there are concerns about the scope of CQC regulatory activities in relation to these particular services, I would encourage the noble Baroness to write to my noble friend the Minister, so that it can be ascertained whether changes to secondary legislation are needed.
On Amendment 241, the scope of Section 60 currently covers healthcare professionals across the UK, and social care workers in England only. Social care is a devolved matter and falls within the competence of the devolved legislatures for Scotland, Wales and Northern Ireland. Section 60 defines
“social care workers in England”
through a list of descriptions. Staff who work to provide reablement and rehabilitation services in the course of care work are covered by the existing descriptors and could therefore be brought into regulation through secondary legislation. In addition to those carrying out this role in the social care field, there are also a number of healthcare professionals who provide reablement and rehabilitation services, such as occupational therapists and physiotherapists, who also fall within the scope of section 60.
Finally, turning to Amendment 289, the Government recognise that rehabilitation is a critical element of the health and care system, supporting patients with a wide range of conditions. A number of initiatives are already under way to support future discharge routes in a way that is sustainable and cost-effective and that provides choice for patients to return to their community. These will be pursued locally by the NHS in ways that best fit their local clinical requirements.
I think it was the noble Baroness, Lady Finlay, who asked why NICE could not give guidance. NICE has already given guidance on rehabilitation after critical illness in adults. It was published in 2009 and reviewed in 2018.
NHS England and NHS Improvement lead a programme to identify optimum bed-to-home models of care for rehabilitation services, supporting discharge to assess policy implementation. The programme will estimate the right capacity for out-of-hospital rehabilitation care, supporting systems through a range of guidance, frameworks and tools. Furthermore, we have already asked NHS organisations to review their estate and identify opportunities to utilise or dispose of surplus assets to ensure that the estate remains efficient and cost-effective.
The NHS also, for transparency, publishes quarterly statistics on surplus land. Integrated care boards will be able to develop estate strategies which identify the efficient use of the estate. As part of that, these plans will be able to identify a number of NHS priorities that could be delivered through the use of surplus land. It should be for local organisations, not the Secretary of State, to decide how to utilise surplus land to meet the needs of their local populations, and therefore we do not think this amendment takes the correct approach in this regard.
I thank noble Lords for their contributions to this debate and hope that I have given them enough assurance at this late hour to allow them not to press their amendments.
Baroness Finlay of Llandaff (CB)
I am most grateful to the Minister for that response and I am particularly grateful to all those who contributed to this debate at this late hour. The noble Baroness, Lady Merron, had it completely right when she said that this was about a continuum of care. The problem is that, if people do not get timely care at the outset and on the way through their journey, things just accumulate.
I certainly will go back and look at the NICE guidance; I had understood that it did not go far enough or cover things effectively, but I am most grateful to the Minister for drawing my attention to that. Certainly we should be looking at how the regulation of those involved in rehabilitation in the community can be extended. Of course, the advantage of regulation is that you also have a lever for training and education, to address the very specific needs of different groups. My noble friend Lady Grey-Thompson spoke of the disabled group, which includes those with physical disabilities, learning difficulties and different areas of handicap. They need to be looked after by people who have been trained and who understand what their specific needs are. That cannot be just a generic service.
I am also glad to hear that there will be the ability to look at the beds and the estate overall and that people are beginning to think about that again. With all those assurances, I beg leave to withdraw the amendment.